Published: June 11, 2009
Author: Timothy Barber
This article first appeared in the New Lawyers Section of The Verdict's Spring 2009, Volume 32.2 issue. The Verdict is published by the Wisconsin Association for Justice.
For many litigators, the first time they consider jury instructions is when their assistant reminds them that their proposed instructions need to be filed with the court by the end of the week. All too often, jury instructions are one of the last things we look at while preparing for trial, and many attorneys simply submit pattern jury instructions as a matter of course. However, there are several reasons why trial attorneys should begin analyzing jury instructions at the beginning of a case and should consider modifying the pattern instructions as the case progresses.
Preparing Your Case
In addition to serving as the source of the law read to juries, Wisconsin's standard jury instructions are a powerful tool that can help an attorney effectively prepare his or her case the moment it comes in the door. The pattern jury instructions set forth each element of the claims the plaintiff must prove at trial. As such, they can serve as an effective blueprint when drafting demand letters and complaints and can help ensure that an attorney does not unwittingly forget to allege an essential element of a claim being asserted.
Moreover, the pattern jury instructions can be useful in formulating a discovery plan and, defending a summary judgment motion. Often, attorneys faced with a summary judgment motion must scour the record and try to shape the existing evidence to satisfy the elements of the claim to avoid dismissal. However, by consulting the jury instructions early in a case, an attorney can develop a discovery plan focused on gathering evidence to satisfy each element of the claims being asserted. Also, reviewing the pattern jury instructions when preparing for longer depositions helps develop a mental checklist of the essential testimony you need to obtain.
Keeping Up on the Law
Appellate courts generally treat the pattern jury instructions and comments as persuasive evidence of the current state of the law.  The Wisconsin Court of Appeals has remarked, "the standard [jury] instructions... represent a painstaking effort to accurately state the law and provide statewide uniformity." 
While not a substitute for thorough legal analysis, consulting the jury instructions and its comments can serve as a quick refresher course for a practitioner unfamiliar with an area of law. Additionally, the notes and comments following the instructions are a good starting point for researching new developments in a particular area of the law.
Modifying Jury Instructions to Reflect New Legal Developments
It is also important to review the notes and comments to the standard jury instructions to ensure they are consistent with recent case law and new legal developments. "Because the standard instructions are not infallible, it is appropriate for a trial court to modify them when necessary to fully and fairly state the law."  Often, there may be a significant gap in time between when a new opinion is issued and when an instruction is updated. If a standard instruction does not reflect recent developments in the law, then it is necessary to submit a modified version of the instruction to the court with citation to recent authority so the court may conform the instruction to the current state of the law.
Modifying Jury Instructions to Prevent Juror Confusion
Perhaps the most important reason for closely scrutinizing standard jury instructions is to try to view them through the lens of an average juror to prevent juror confusion. While as a matter of practice, most judges tend to follow the standard jury instructions fairly closely, there is no requirement that they do so. "A trial court has wide discretion in developing the specific language of jury instruction... [and] the trial court's instructions do not have to conform exactly to the standard jury instructions." 
Even when a jury instruction accurately states the current law and seems clear to attorneys, it may nonetheless be misleading and confusing to the average juror. For instance, the standard instruction for awarding punitive damages, Wis JI-CML 1707.1, accurately states that "[p]unitive damages may be awarded, in addition to compensatory damages, if you find that the defendant acted maliciously towards the plaintiff or in an intentional disregard of the rights of the plaintiff." The instruction then provides a one-page explanation of what it means to act "maliciously" and to act with "an intentional disregard of the rights of the plaintiff." The instruction accurately states that "[there is no requirement that (defendant) intended to cause harm or injury to (plaintiff)."
However, this important clarification appears towards the end of the instruction, and the instruction uses the word "intentional" four times before this sentence. As such, it is not uncommon for many jurors to believe that they must find the defendant intended to harm the plaintiff to award punitive damages. Also, jurors may not realize that they need to answer the special verdict question on punitive damages in the affirmative in order to award punitive damages.
In one of the cases I was involved in early in my career, a very intoxicated driver collided with our client's vehicle. The defendant went straight to a tavern after ending her third-shift job and drank until 3:00 in the afternoon. She then drove home at a high rate of speed through residential neighborhoods, passing directly in front of a local elementary school, before crashing into our client's vehicle - which contained her two small children in the backseat. Although the defendant had little money, the jury inserted an amount of punitive damages in the special verdict that it thought would appropriately punish the defendant for her outrageous conduct. However, the jury answered "no" to the special verdict question on punitive damages because they did not believe the defendant intended to injure our client. The jury was furious when they learned that no punitive damages would be awarded.
To prevent juror confusion over the punitive damages instruction, it may be worthwhile to ask the court to read the portion clarifying intentional conduct is not required immediately after the first sentence of the instruction. Doing so brings this important clarification to the forefront and ensures it is not lost in the four paragraphs of explanatory material that follows.
Another common pattern instruction that can be problematic is Wis-JI CIVIL 1762, relating to future loss of earning capacity. While the instruction is properly framed in terms of lost capacity to earn rather than lost wages,  the instruction does not expressly distinguish between the two. Also, defense attorneys generally try and attack loss of future earning capacity claims by focusing on the plaintiff's chosen line of work and dismissing their "potential" to earn. If loss of earning capacity is a significant portion of your case, it may be worthwhile to ask the court to insert the following language from Ballard v. Lumbermens Mutual Casualty Co., 33 Wis. 2d 601, 608, 148 N.W.2d 65 (1967): "In determining past and future loss of earning capacity the question is not whether plaintiff would have worked, by choice. He is entitled to compensation for his lost capacity to earn, whether he would have chosen to exercise it or not." 
Be Prepared to Discuss Jury Instructions at the Find Pre-Submission Conference
It is also important to review the proposed jury instructions before the pre-submission conference and be prepared to request that the court modify the instructions to conform to the evidence brought to light at trial. Sometimes even changing one letter in a pattern jury instruction can make the difference between a favorable or adverse verdict.
A seasoned attorney at my firm recently defended a large medical malpractice case against a hospital involving allegations that hospital employees failed to sterilize certain equipment before surgery. During trial, the plaintiff focused only on the conduct of one nurse. At the informal pre-submission conference, the defense attorney suggested that Wis JI-CIVIL 4055 should be modified to state that an "(employer) is liable for the negligence of its employee" rather than "employees." The jury deliberated for four hours and attempted to ask a question about the special verdict. The judge instructed the jury to review the jury instructions. Ultimately, the jury returned with a verdict in favor of the hospital. When the jury was polled after trial, they revealed that they believed someone at the hospital was negligent and wanted to find against the hospital, but they did not believe the nurse in question had done anything wrong. Because the jury instruction used the word "employee" and referred only to the specific nurse by name, the jury felt compelled to return a verdict in favor of the defense.
Highlight Important Instructions and Keep Them Simple
Finally, when considering the language of a jury instruction, it is important to remember that the jury is likely tired by the end of the trial and can lose interest easily as the court reads page after page of instructions to them. Therefore, the shorter and simpler an instruction is drafted, the greater the likelihood the jury will comprehend and remember the instruction. If a particular instruction or portion of an instruction is important to your case, be sure to highlight the relevant language to the jury during closing argument, as jurors are likely to miss the significance of any particular instruction while sitting through the litany of instructions coming from the judge.
Analyzing jury instructions early in a case will help an attorney focus on the essential elements of his or her claims, shape the evidence developed during discovery, and defend summary judgment motions. Also, the pattern jury instructions can serve as a starting point for researching an area of the law and keeping up to date on recent legal developments. However, while the pattern jury instructions are generally accepted as accurately stating the law, they may need to be modified to reflect recent legal developments, prevent juror confusion, and take into account the evidence presented at trial. Finally, instructions should be kept simple, and important instructions should be highlighted for the jury during dosing argument.
Timothy M. Barber is an associate at Axley Brynelson, LLP in Madison. He graduated from Marquette University Law School in 2003 and served as the law clerk to the Honorable Jon P. Wilcox on the Wisconsin Supreme Court from 2003 to 2005. He focuses on appellate practice, commercial litigation and personal injury law. He has drafted and co-authored several briefs to the Wisconsin Court of Appeals and routinely assists in preparing amicus curiae motions and briefs to the Wisconsin Supreme Court. He is admitted to practice before the State of Wisconsin, and the Eastern and Western Districts of Wisconsin. He serves on the WAJ Amicus Committee and is a member of the State Bar of Wisconsin, where he is a member of the Appellate Practice Section, Litigation Section & Labor and Employment Section. For more information, contact Mr. Barber at 608.283.6740 or firstname.lastname@example.org.
 The author would like to thank Attorney Jason Knutson for contributing to this article.
 Sedbrook v. Zimmerman Design Group, Ld., 190 Wis. 2d 14,27,526 N.W2d 758 (Ct. App. 1994) (quoting State v. Waalen, 130 Wis. 2d 18,26,386 N.W.2d 47 (1986)).
 State v. Foster, 191 Wis. 2d 14, 27, 528 N.W.2d 22 (Ct. App. 1995).
 Id. at 26.
 Carlson v. Drew of Hales Comers, Inc., 48 Wis. 2d 408,417,180 N.W.2d 546 (1970).
 (Internal quotation omitted)
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