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How Wisconsin Juries are Kept in the Dark

Posted by attorney David McCormick

In 2009 Wisconsin missed out on a great opportunity to lift the great veil of secrecy involving our jury system. This was called the Juror Sunshine Bill, and this Bill would have helped out our jury system by eliminating some of the confusion that eventually occurs during jury deliberations.

Most people probably have never heard of the Juror Sunshine Bill, but for those members of the public who have ever served on a jury in a civil lawsuit, this bill would have answered many of the questions and/or concerns you may have had after you learned the true effect of your verdict.

Pursuant to a Wisconsin Supreme Court Rule, Wisconsin currently operates under what is appropriately called the blindfold rule. The blindfold rule means that the judges and attorneys are prohibited from telling jurors the true effects of their verdict.

What does that mean for the average juror? It could be a lot, and very important because when assessing negligence among the responsible parties’, jurors do not know what real affect is on the injured plaintiff.

For example, assume the following: a person is injured in a 3 car accident; the jury awards a total of $100,000 in damages to the injured plaintiff; and the jury verdict assesses the negligence as follows:

· Plaintiff = 40%

· Defendant driver #1 = 30%

· Defendant driver #2 = 30%

Since the combined negligence totals 100%, the judge would accept this as a valid verdict.

Question: What does the plaintiff recover in this case? Answer: $0

Most jurors have no idea why the plaintiff gets no money. The reason why the injured plaintiff receives $0 from this verdict is that the comparative negligence law in Wisconsin states that if the injured plaintiff’s negligence is greater than that of the individual defendants the injured plaintiff is barred from any recovery. In this example the injured plaintiff’s negligence is greater than each individual defendant (40% vs. 30%). What is important is that the plaintiff’s negligence is not compared to both defendant drivers’ combined negligence (40% vs 60%). The problem with the present blindfold rule is that most juries were thinking the plaintiff would get $40,000, or 40% of the $100,000 award. Also, the jurors are never told by the judge that the plaintiff gets nothing as a result of their verdict.

In the above example and in many others occurring daily in deliberations throughout Wisconsin , when the jurors find out that since the injured plaintiff’s negligence is greater than each defendant, they get $0, they are usually very mad and want to know if they can change the verdict. Unfortunately, one they reach their verdict it cannot be changed for this reason.

What Wisconsin juries are never told is that if the injured plaintiff is found 51% or more at fault, they also do not get any recovery. It does not matter what the jury would award in money damages, the injured plaintiff still gets $0. Further, another pitfall for injured plaintiffs is the “pure accident" defense. Again, the jurors are not told that is they answer the verdict that the injuries were caused by an accident and that no party is negligent, the injured plaintiff again gets $0, no matter what the jury awarded in damages. However, if the jury would split the negligence 50/50, then the injured person would receive 50% of the total damages awarded on the verdict.

Many people are probably wondering if this blindfold rule is common in all states.

The short answer is NO, it is not.

In the US there are a total of thirty-three (33) states that have comparative negligence laws that are similar to ours in Wisconsin. Out of these thirty-three (33) states, how many do you think have the blindfold rule? The answer is two (2), Wisconsin and Texas. Whenever you are mentioned in the same sentence with Texas, it is never a good thing to happen.

The Jury Sunshine Bill would have allowed attorneys to argue before the jury in closing arguments exactly what would happen if they would make any of the previously mentioned decisions. This would have been a good thing for Wisconsin justice because it would have eliminated juror confusion.

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