99-3018 Nommensen v. American Continental Insurance Co.

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“The court of appeals affirmed the circuit court’s decision to give the standard instruction. Wisconsin JI – Civil 200 (civil jury instruction 200 or instruction 200) states the quantum of evidence required in an ordinary civil case – that is, ‘the greater weight of the credible evidence.’ It also provides a standard for the degree of certitude required of the fact finder – that is, ‘reasonable certainty.’… The burden of proof … rests upon the party contending that the answer to a question should be ‘yes.’ This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that ‘yes’ should be the answer.”

Although plaintiff contends that this instruction is ambiguous or confusing, and we take his questions seriously, we are not convinced that the present jury instruction on the ordinary burden of proof is erroneous as a matter of law, that the petitioner’s formulation of a new instruction would resolve the suggested dilemma, or that the petitioner has made the case for a new trial. We are especially convinced that this court should not assume the responsibility of writing a new jury instruction on the burden of proof.

Affirmed.

“If we were to rewrite instruction 200, as Nommensen suggests, by substituting the word “probability” for the word “certainty,” we would in effect be deciding to substitute that word in many other instructions. This would require an impact analysis that we are ill equipped to undertake. It would be far better for an expert committee of circuit judges and scholars, working without an artificial deadline, to decide how to accomplish such wide-sweeping changes, if there were a consensus that such changes were warranted. …

“We conclude that Nommensen has not made a case for granting him a new trial because he did not establish that the circuit court administered an erroneous jury instruction or that if the instruction were error in his case, his substantial rights were affected. We have carefully considered petitioner’s argument that there is potential for juror confusion in Wis JI – Civil 200, with respect to the elements of degree of certitude and quantum of evidence. With this in mind, we respectfully request the Wisconsin Civil Jury Instructions Committee to revisit the instruction for a thorough review. We do not necessarily agree with Judge Brown that “the instruction fails miserably.” However, we appreciate the spirit in which his message was delivered. …

“Changing ‘reasonable certainty’ to ‘reasonable probability’ in the instruction is not the proper tonic for potential juror confusion and would be inconsistent with precedent. However, we concur with Nommensen that instruction 200 as written is deserving of a thorough review. Such a review should consider all legitimate reformulations of the current instruction, so long as the instruction maintains the two-element approach to the burden of proof.

CONCURRING OPINION: Abrahamson, Ch. J. “I join the majority opinion. I wrote a concurrence on the issue of harmless error in In re the Termination of Parental Rights to Jayton S.: Evelyn C.R. v. Tykila S., 2001 WI 110 **37-42, ___ Wis.2d ___, ___ N.W.2d ___ (Abrahamson, C.J. concurring). My views on harmless error expressed in that concurrence apply to the present case as well. Rather than repeat the concurrence verbatim in the present case, I refer the reader to the Evelyn C.R. case.”

CONCURRING OPINION: Crooks, J., with whom Wilcox, J., joins. “I concur in the majority’s decision to affirm the court of appeals because, as the majority concludes, Nommensen failed to establish that the circuit court erroneously exercised its discretion in giving Wis JI-Civil 200. … I disagree, however, with the majority’s harmless error analysis.

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: John Barry Stutt, Racine

For Respondent: John A. Nelson, Timothy W. Feeley, Milwaukee