The second half of 2009 was an exciting time in my life. I got a law license, got my first home, got a dog, and got married. Only a few months out of law school, I was also about to get an opportunity to try my first case alongside my friend and colleague, Benjamin Wagner.
Fast forward to this year. In the seven years leading up to 2016, I got a nice frame for my law license, got promoted to partner, got a new house, got a new dog, and my wife and I have now got three little kids under the age of five. Amidst this chaos, I also got to try a number of other cases over the years.
While all the other life-events mentioned above are no doubt significant, this short discussion is about a rule that I was first exposed to during that time. It is a rule that appears simple enough on the surface, but less so in application.
It is a rule that I have relied upon both professionally and in my efforts at promoting family harmony. The essence of the rule is this: The agreement of five-sixths of the “deciders” is necessary to support a judgment. But the interpretation of this rule is not just a matter of simple fractions. In other words, there are exceptions, a few of which are discussed here.
When it comes to the number of jurors necessary to support judgment on a particular claim, Wis. Stat. sec. 805.09(2) is the starting point. This statute provides that “[a] verdict agreed to by five-sixths of the jury shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.”
Again, the rule seems simple enough on its face, but I learned otherwise after my first trial. The brief aftermath of this first trial caused me to take a closer look at the five-sixths rule and to learn more about the exceptions to a strict mathematical application of the rule. This benefited me tremendously in later trials.
The facts of the case are not essential, but some context is helpful. After three days of a trial in a personal-injury case, Ben and I listened with subdued triumph as the court announced the verdict, which was in our client’s favor on liability and damages. One dissent was announced.
We left that day with a conformed copy of the special verdict in hand. It was a three-page form. It was dated and signed by the foreperson on the second page. What appeared to be the sole dissent was listed at the bottom of the second page beneath the foreperson’s signature. Juror No. 1 dissented on the finding that the defendant was liable. So far, so good, as far as the five-sixths rule was concerned.
After we had left the courthouse, a curbside review of the third page of the form revealed that three additional jurors had dissented on this third page. Like juror No. 1, juror No. 2 also dissented over the defendant’s liability. Juror No. 3 dissented from a finding that the plaintiff had been negligent, but did not dissent from the finding that the plaintiff’s negligence had been causal. Juror No. 4 dissented from the finding that the plaintiff’s negligence was causal, but did not dissent from the finding that the plaintiff was negligent.
At first glance, it would appear that this verdict – with four dissenters – was contrary to the five-sixths rule. Fortunately, as eluded to above, one of the exceptions saved the day. This was my first exposure to what has been termed the “only more so” exception, which first appears in Vogt v. C.M.StP & Pac. R.R., 35 Wis. 2d 716 (1967).
The basic idea of this exception is that if the excess dissent supports the winner, it effectively drops out of the equation for purposes of the five-sixths analysis. And so it went in my first trial. Jurors No. 3 and No. 4 dissented to answers that supported the winner, i.e. the plaintiff, and therefore under the rule announced in Vogt, these dissents were immaterial.
In the final analysis, if not for the “only more so” rule, and if the verdict had – in fact – been inconsistent, the act of announcing the verdict in open court would have effectively prevented the court from ordering re-deliberation as described in the annotation to Wisconsin’s Special Verdict Statute, Wis. Stat. sec. 805.12(3) and as provided for in Wisconsin Civil Jury Instruction Nos. 180 and 195.
It is not difficult to imagine a situation in which a facially inconsistent verdict is received, announced, and, consequently, accepted. Unfortunately, if these three stars are in alignment, there is no chance for re-instruction or re-deliberation. Unless one of the exceptions applies, and the exception is invoked, the parties are basically left to start with a new trial.
Fortunately, the case law provides clear guidance: “Unless the judge can instantly conclude that the verdict is proper, it is appropriate for the judge, upon the receipt of the verdict, to retire to chambers to consider whether the verdict is consistent and correct as to form before accepting the verdict.” Westfall v. Kottke, 110 Wis. 2d 86, 98 (1983).
A few years and a few trials later, I again found myself waiting for the jury to return.
Suddenly there was an announcement that the jury had reached a verdict. The jurors filed in, and the verdict form was handed to the bailiff, who handed it to the judge, who reviewed the form. Dead silence. Something was wrong.
Fortunately, the court was already attuned to the Westfall case, and, before saying a word about the verdict, re-instructed the jury consistent with Civil Instructions 180 and 195. After re-instruction and re-deliberation, the jury returned the special verdict, which the court again silently reviewed and then read aloud.
A review of the completed form revealed that initially three dissents had been lodged, but that after re-instruction and re-deliberation, one dissenter changed his mind. The jurors had also agreed to reduce one portion of the damage claim.
The final form consisted of the following:
The liability split was in favor of my client, and there were no dissents relative to the liability findings.
On damages, juror No. 1 had initially dissented from the amount of the past pain and suffering award. Juror No. 1 also dissented from the amount of the future pain and suffering award.
Juror No. 2 lodged dissents identical to the initial dissents of juror No. 1.
Juror No. 3 dissented on the amount of the past medical expenses and the past pain and suffering.
It is evident that after re-instruction and re-deliberation, juror No. 1 crossed out his dissents in pen and ink, and both he and the foreperson initialed the document. The amount initially awarded for future pain and suffering was also stricken and reduced to a marginally smaller amount in the jury’s second attempt. Naturally, this brought the number of dissents down to two, which satisfied the rule.
Ultimately, while the five-sixths rule itself appears simple enough, it pays to know the exceptions. Throughout my relatively short but disproportionately exciting trial career so far, I have resisted the temptation to take a breather while waiting for the verdict to come in.
Instead, I busy myself reviewing the five-sixths rule and reading the annotations and exceptions. With my luck, the five-sixths lightning bolt may strike me a third time, probably something like juror No. 1 and juror No. 2’s dissenting from liability, and juror No. 3 and juror No. 4’s dissenting from a comparatively minimal claim for lost wages.
Of course, Krueger v. Winters creates an exception which lets a claimant cure the problem of excess dissents by simply waiving the claim that corresponds with the excess dissents. Id., 37 Wis. 2d 204 (1967). But I probably never would have known that had it not been for that very first trial.