Marquette Law Review Volume 60 Article 1 Issue 2 Winter 1977 Special Verdict Formulation in Wisconsin John A. Decker John R. Decker Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation John A. Decker and John R. Decker, Special Verdict Formulation in Wisconsin, 60 Marq. L. Rev. 201 (1977). Available at: http://scholarship.law.marquette.edu/mulr/vol60/iss2/1 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Vol. 60 1977 No. 2 SPECIAL VERDICT FORMULATION IN WISCONSIN JOHN A. DECKER* and JOHN R. DECKER**" CONTENTS INTRODUCTION ......................................... 204 PART I. THE GENERAL STRUCTURE OF THE SPECIAL VER- DICT .. ............................................ 210 Sec. A. The Sequential Arrangement of the Ques- tions Should Be Logical ................ 210 Sec. B. It May Be Necessary To Inquire About Those Who Are Not Parties to the Litiga- tion .................................. 211 Sec. C. Separate Inquiries About Negligence and Causation Are Proper But Not Required . 213 Sec. D. Where the Law Requires Expert Testi- mony To Establish Negligence or Causa- tion, in the Absence of Such Testimony, a Question Should Not Be Submitted ..... 215 PART II. THE GENERAL EXTENT OF THE SPECIAL VERDICT QUESTIONS ......................................... 216 Sec. A. A Special Verdict Should Not Consist of So Many Questions that It Constitutes Needless Multiplicity or Verbosity or Leads the Jury into Inconsistency ....... 219 * J.D. 1939, University of Wisconsin; Circuit Judge, 2d Judicial Circuit, Milwau- kee, Wisconsin; Lecturer in Law, Marquette University Law School. ** B.A. 1974, University of Wisconsin-Madison; Candidate for J.D., Marquette University Law School; Member and Editor, MARQurr LAw REVIEW. The authors had their first professional association in 1974-75 when one served as intern-law clerk to the other. That relationship was primarily student-teacher. Learn- ing trial practice skills was handicapped by the oral tradition-so much is communica- tion by folk tales in an unorganized fashion. Instruction with respect to special verdict formulation was frustrating to both of us. We concluded that a primary impediment was the lack of written preparatory material. This article resulted. MARQUETTE LAW REVIEW [Vol. 60:201 Sec. B. A Special Verdict Should Not Constitute an Extended Cross-Examination of the Jury .................................. 220 Sec. C. Issues Should Be Neither Split, nor Sub- divided nor Repeated in Different Form . 220 Sec. D. Issues Submitted Should Not Be as Broad as a General Verdict ................... 220 Sec. E. Only Issues Pleaded (or Actually Tried) and Supported By Evidence Sufficient To Support An Affirmative Jury Finding Should Be Incorporated in the Question .. 221 Sec. F. Special Verdicts Should Be So Drafted that Judgment in Favor of One Party or the Other May Be Based Upon the Verdict No Matter How the Jury Answers the Ques- tions, So Long as the Answers Are Re- sponsive .............................. 225 Sec. G. Special Questions of "Additional" Fact A re Proper ............................ 225 Sec. H. Multiple Special Verdicts Involving Multi- ple Parties and Separate Incidents May Be Submitted to the Jury ................. 227 Sec. I. Ordinarily the Question Should Be Framed To Put the Burden on the Affirmative ... 228 PART III. THE FORM OF NEGLIGENCE, CAUSATION AND COMPARISON INQUIRIES . ............................ 229 Sec. A. Each Question Should Be Limited to a Single Direct and Controverted Ultimate F act .................................. 229 Sec. B. A Double Question, Whether Phrased Conjunctively or Disjunctively, Hazards Reversible Error ....................... 230 Sec. C. When the Claim is Grounded in Neglig- ence, the Preferable Special Verdict Ques- tion is in Terms of Negligence .......... 231 Sec. D. A Question Directed to Conduct of One of the PartiesShould Be Related in Time and Space to the Event Which Is the Basis of the Litigation ......................... 234 Sec. E. In a PersonalInjury Case, When More than One Event or Occurrence Is the Subject of 1977] SPECIAL VERDICT FORMULATION Litigation, Care Must Be Exercised in Phrasing the Negligence and Causation Questions with Respect to "The Acci- dent," "The Collision," "The Plaintiff's Injury" or "The Defendant's Injury." .... 236 Sec. F. A Question Should Not Assume nor Imply a Controverted Fact .................... 241 Sec. G. Questions Should Avoid Duplicity ....... 245 Sec. H. The Jury Instructions May Be Considered in Determining the Propriety of the Spe- cial Verdict Question ................... 250 Sec. L The Form Of the CausationQuestion .... 250 Sec. J. The Form of the Comparative Negligence Question .............................. 252 PART IV. THE MECHANICS OF SPECIAL VERDICT PREPARA- TION .. ............................................ 254 Sec. A. Provision Must Be Made for Dissenting Jurors ................................ 254 Sec. B. Prefatory Instructions to Special Verdict Questions Should Be Included .......... 256 PART V. DAMAGE QUESTIONS .......................... 261 Sec. A. Damage Questions Should Always Be In- cluded in the Verdict if in Issue and the Trial Court Should Insist that the Jury Answer the Damage Questions .......... 261 Sec. B. Submitting a Damage Question Does Not Assume nor Imply the Existence of Dam- age ................................... 262 Sec. C. A Special Fact Causation Question Di- rected to Whether the Claimed Damages Arose from the Occurrence or Event Liti- gated May Be Appropriate .............. 264 Sec. D. The Damage Inquiry Can Be Formulatedin a General Question of Damages or in an Itemized Question of General and Special Dam ages .............................. 264 Sec. E. Phrasing the Itemized Damage Inquiries . 266 Sec. F. An Inquiry with Respect to Exemplary Damages Cannot Be Made Unless the Evi- dence Justifies Submitting an Inquiry for Compensatory Damages ................ 268 MARQUETTE LAW REVIEW [Vol. 60:201 PART VI. THE ROLE OF COUNSEL IN THE INSTRUCTION AND SPECIAL VERDICT CONFERENCE ....................... 269 PART VII. TRIAL COURT SUPERVISION OVER THE RETURN OF THE JURY'S SPECIAL VERDICT ........................ 271 PART VIII. THE ELECTION-OF-THEORIES PROBLEM ....... 273 APPENDICES ......................................... 280 INTRODUCTION The special verdict, viewed today as a means for court con- trol over the jury,' has evolved as a pragmatic response of medi- eval juries to the burdens placed upon them. In early English law the inquest, of which the jury was a constituent part, was a method of proof imported by the Normans and was an alter- native to ordeal, battle and wager of oath.2 The resolutions provided by the latter methods of proof were final, since they were directed by the supernatural. 3 The inquest and the jury were early recognized to be human and fallible institutions, however, and some means of encouraging accuracy and correct- ing error was desired.4 The means developed was the attaint.5 If the inquest jury's verdict was challenged, an attaint jury, a more numerous body composed of as many as twenty-four ju- rors,' was assembled to pass on the verdict of the first jury. If the inquest jury was found to have given a false verdict, the jurors stood convicted of perjury7 and were severely punished,8 1. F. JAMES, CIVIL PROCEDURE § 7.15 (1965). Justices Douglas and Black dissented to the 1963 amendments to FED. R. CIv. PROc. 49 on the ground that special verdicts were a means of excessive judicial control over the jury. See 374 U.S. 865, 867-68 (1963). 2. Morgan, A Brief History of Special Verdicts and Special Interrogatories,32 YALE L.J. 575 (1923). 3. Id. 4. 3 W. BLACKSTONE, COMMENTARIES *389. 5. A thorough discussion of the origins and development of the attaint as a form of jury control may be found in 1 W. HOLDswoRTH, A HISTORY OF ENGLISH LAW 337 et. seq. (3d ed. 1922). 6. Id. at 339. 7. "They supposed that .. the proof of fact must be always so clear, that, if [the jury] found a wrong verdict, they must be wilfully and corruptly perjured." 3 BLACK- STONE, supra note 4, at *389. Attaching the penalty of perjury to the jurors was not illogical. Rendition of a false verdict was tantamount to false swearing since the evolv- ing jury still retained its character as an assemblage of witnesses. See 1 HoLDSWORTH, supra note 4, at 337, 342. 8. "[The jurors] were imprisoned, their lands forfeited, their wives and children turned out of their possessions, and their goods forfeited to the King, and themselves outlawed." 1 HALSBURY'S LAWS OF ENGLAND 27 (3d ed. 1952). 19771 SPECIAL VERDICT FORMULATION and the inquest judgment was overturned.' The province of the early jury was probably not limited to findings of fact alone.'0 Although questions of both fact and law were commonly submitted for determination by inquest ju- ries," the practice developed in the early thirteenth century for juries to return verdicts in which the facts of the case were determined, but the more difficult determination and applica- tion of the law was left to the court. 2 By this means, the jury could pass responsibility for an erroneous judgment from them- selves to the judges.' 3 Blackstone noted two ways in which a jury might make findings