Don’t interfere with jury deliberations

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Whether to change Wisconsin’s rules governing joint and several liability is an issue that will certainly rise again, even if it is not included in the state’s budget bill.

I don’t intend here to take any position on what the optimum rules are — whether 51 percent liability should be required for joint and several liability, or only one percent.

And whatever the state Legislature ultimately decides, I will acknowledge it as a legitimate decision for them to make.

However, one provision in the proposed changes is not a proper function of the Legislature, and should stay dead, whatever magic number ultimately is selected to trigger joint and several liability.

That is the proposed requirement that a court instruct the jury on the consequences of how they apportion liability.

Consider how things are done in criminal cases.

Suppose you represent a “mule” — a poor, desperate person paid to transport controlled substances or money from one locale to another to the people who actually run and profit from the illegal operation.

Charged in federal court with conspiracy to deliver crack cocaine, the mule faces a mandatory minimum of 10 years in prison if convicted, with no parole.

As her defense attorney, there is nothing in the world that you would like more than to let the jury know that a guilty verdict equals a 10-year minimum. Why? Because you don’t want the jury to decide the case based on the facts. The facts aren’t on your side. You want the jury to acquit your client, because it thinks the punishment is excessive.

Tell that jury that a guilty verdict equals a 10-year mandatory minimum, though, and you will find yourself before the Office of Lawyer Regulation, “toot sweet”.

The reason is simple. It is the jury’s function to determine the facts; the jury is to make its factual findings based only on evidence that is relevant to some element of the charged crime. The punishment is not relevant to any charged element; therefore, it is not admissible evidence, and the jury is not to know about it.

Allowing the jury to know about the mandatory minimum would improperly place legal issues, rather than factual issues, in the jury’s hands.

So why are some members of the Legislature gung-ho about letting juries know the consequences of their verdicts in civil cases?

Obviously, these legislators want juries to reach verdicts based not on the facts in evidence, but on their subjective views of what the law should be; they want juries to overstep their authority.

I’m sure juries do in practice speculate on what the effect of their verdicts will be, and sometimes, their incorrect speculations do affect the verdict. I’m also sure that in some criminal cases they do the same.

But we don’t vacate 10-year mandatory minimum sentences just because the jury thought the defendant was a bit-player and should get only probation. And we shouldn’t encourage juries in civil cases to fudge the liability findings to reach a particular result.

What percentage of liability should trigger joint and several liability is a question that has no empirically correct answer, to my knowledge. Reaching some compromise on this issue is up to the Legislature.

But if we are to preserve the proper distinction between fact and law, and to protect the rule that juries are to find facts based only on evidence that is relevant to some element of the cause of action, then we must bury any proposal that juries should be instructed on the legal rules that trigger joint and several liability