Trial Practice Series - Instructions and Special Verdict: Not Just for the Jury Anymore

WDC Journal Edition: Spring 2019
By: William R. Wick, Nash, Spindler, Grimstad & McCracken, LLP and Ryan R. Graff, Nash, Spindler, Grimstad & McCracken, LLP

Note on the “Trial Practice Series”: This is the sixth article in a series providing a practical view of common aspects of the litigation and trial process. It is the brainchild of Bill Wick at the Nash Law Firm, a coauthor of this article.

I. Introduction

Perhaps the most overlooked tools in the trial lawyer’s toolbox are the jury instructions and special verdict form. The purpose of the instructions is to inform the jury of the law and the special verdict poses questions that the jury must answer regarding the facts. This article addresses the preparation and use of the jury instructions and the special verdict.

II. Early Consideration

The proposed instructions and special verdict form are filed with the court as required by the scheduling order, and the time varies. The time for filing is usually related to the pretrial conference or the trial date, late in the proceedings. Often the instructions and verdict are not considered until counsel is preparing for the pretrial. However, it is advisable for defense counsel to consider the instructions and special verdict shortly after the case is assigned.

The instructions and special verdict can be used to provide an outline for the defense of the case. The jury instructions set forth the elements of each claim or defense and can be used throughout the case as a checklist for the required proof. Consulting the instructions early may suggest less frequently employed affirmative defenses, such as those involving successive torts, aggravation of pre-existing conditions, and the emergency rule, among others. The instructions and special verdict may also inform and be used to suggest additional investigation, to direct discovery, and to aid in preparing for depositions.

The applicable instructions can also be sent to clients and experts to explain the theory of defense or to define the standard to be applied in assessing the facts. The special verdict can be used to explain the issues in the case and how the case is analyzed. Advising clients of the questions in the special verdict, how the issues in the case are related to them, and how the questions may be answered by the jury can simplify an explanation of the proof required. Thus, reviewing the instructions, identifying the applicable instructions, and considering them in light of the questions that may be posed in the special verdict early in the process can be very helpful.

III. Interrelationship of the Instructions and Special Verdict

The interrelationship of the instructions and special verdict reflect the respective roles of the judge and jury in the trial process. The function of the jury is to find the facts and answer the questions posed in the verdict and the role of the judge is to instruct the jury on the law. The special verdict must reflect the issues of fact to be decided, and the instruction must inform the jury of the applicable law so that the verdict questions can be answered. The questions in the special verdict determine what instructions the court will give. Questions from the special verdict are often read to the jury in conjunction with the instruction related to it.

The interrelationship of the instructions and verdict is recognized in Wis. Stat. § 805.13(3), which requires the court to have an instructions and special verdict conference with counsel. Simply put, the special verdict asks questions about the elements of the claim that must be proved, and the instructions define the proof required to meet each element of the claim.

IV. Form and Content of the Instructions

For civil cases, the jury instructions are found in the Wisconsin Jury Instructions - Civil. These are described as “standard,” “model,” or “pattern” instructions. The instructions were developed and are updated by the Wisconsin Civil Jury Instructions Committee and published by the University of Wisconsin Law School. The instructions are described as fundamental models, or checklists, or minimum standards. Many of the jury instructions include comments related to the law from which the instruction is derived. The comments may have citations to authority that support the instruction, the circumstances in which the instruction is appropriate, and the limitations that should be put on it.

Because pattern instructions do not account for every situation that may come up, instructions may be modified to fit the evidence in the case. Standard instructions are designed to assist the court, but should not be used as a substitute for developing appropriate instructions related to the specific facts of each case. Trial judges are cautioned that pattern instructions are tools to assist the court, but do not eliminate the need to refine the instruction based on the particular facts of the case.1 The decisions of the Civil Jury Instructions Committee with regard to the content of the jury instructions are not binding on the courts, but the Committee’s work is generally considered to be insightful and persuasive.2 While modified instructions can be appropriate, it is the experience of the authors that trial judges are reluctant to deviate from the language of the pattern instruction.

Instructions must be complete, non-repetitive, relevant to the issues and the evidence, and provide a correct statement of the law. Instructions are to be short, concise, and directly to the point.3 An instruction is improper if it is defective in form, i.e. incomplete or contains blank spaces, is not substantively correct, is repetitive, or is not supported by the evidence.4

The instructions should fully and fairly inform the jury of the rule or principle of law applicable to the particular case. The purpose of the instruction is to state the law accurately and to explain the law in lay terms. The instructions should be as clear and simple as reasonably possible. Counsel needs to remember that the trial court has wide discretion as to the instructions it will give to the jury and, as long as the instructions adequately advise the jury of the law they are to apply, the court can decline to give other instructions even though they may properly state the law to be applied.5 Finally, the instructions are to be considered in their totality to determine whether they properly state the law to be applied.

Although there seems to be reluctance on the part of trial judges to accept non-pattern instructions, when the facts warrant it, counsel should draft an instruction with a citation to support authority for its content. When drafting original instructions, counsel should provide the court with support for the proposed original instruction that may come from statutes, case law, form books, treatises, restatements, and instructions given in other cases.

Some examples of non-pattern instructions are included as addendums at the end of this article on pages 42-43. Addendum A addresses the situation where the operator of a motor vehicle encounters a situation without warning, subjecting the driver to a sudden unexpected and unanticipated emergency. Addendum B addresses the standard of care for building contractors based on similar instructions for other professionals. The instruction advises the jury that a contractor has the duty to exercise ordinary care which requires use of the degree of care, skill, prudence and judgment used by others in the trade in the same or similar circumstances and if the contractor fails to conform to that standard, he or she is negligent. Addendum C addresses situations where counsel has relied on the axiom that events not recorded in the medical records did not happen. The judge may be asked to instruct the jury that there has been testimony about documentation in the records and that lack of a written record does not mean that the event did or did not occur, and that whether something occurred is for the jury to determine based on the facts presented. Addendum D addresses the situation where deposition testimony of a key expert witness was read into the record because the expert unfortunately could not attend the trial. An instruction advising the jury that evidence was presented from depositions, that the testimony is admissible, and that deposition evidence is to be considered just as if the witness had been present in court testifying on the witness stand is appropriate. The court may reject such a request on the grounds that the proposed instruction may emphasize certain aspects of the testimony, that the pattern instruction already adequately addresses the issue, and/or that the content of the proposed instruction may be argued to the jury. Ultimately, acceptance of a proposed non-pattern instruction is left to the sound discretion of the court.

There is no requirement that counsel submit an instruction that supports the issues being advanced by the opposing party.6 The obligation to file an instruction rests with the party who is presenting evidence on the issue.

V. Form and Content of the Special Verdict

A jury trial requires a special verdict. That said, there is little guidance in the statutes regarding the form and content of the special verdict. Section 805.12(1) states, “The verdict shall be prepared by the court in the form of written questions relating only to material issues of ultimate fact and admitting a direct answer.” There is no directive, however, as to the precise questions to be asked. The responsibility for the form of the special verdict rests with the court and the form of the special verdict is within the sound discretion of the court.

The special verdict is a series of questions about the issues of ultimate fact that need to be decided for a judgment to be granted. Verdict questions should not be phrased in a confusing, misleading, or prejudicial manner.7 Separate fact issues should be subject to separate inquiries.

Special verdicts must be used in all civil cases.8 The form can be derived from a number of sources. One source is the Wisconsin Civil Jury Instructions. Frequently the comments and/or jury instructions themselves contain proposed special verdict language to be used.9

In a negligence case, the special verdict must include a question about any tortfeasor whose conduct may constitute causal negligence, including nonparties, settled parties, released parties, and parties excluded from liability by operation of law.10 A jury must consider the negligence of non-parties to ensure that a negligent party only pays for its fair share of total negligence.11 “[O]nly one question has to be answered by the trial court before submitting a negligence question to jury: is there evidence of conduct which, if believed by the jury, would constitute negligence on part of persons or other legal entities inquired about.”12 In situations where worker’s compensation is the exclusive remedy, questions regarding the negligence of the employer must appear on the special verdict if supported by the evidence.13

The Safe Place Statute raises questions for the special verdict. A duty under the Safe Place Statute of an owner or employer is non-delegable. The responsibility is that of the owner or employer, even if another person or entity occupies the property. For comparative negligence purposes, the negligence of the owner of the building and the tenant should be combined and compared against the plaintiff. The special verdict should still have separate questions about the negligence of all involved parties, however, in order to adequately apportion contribution.14

VI. Procedures

Section 805.13(3) states that counsel “may file written motions” with regard to the instructions and special verdict to be submitted. The instructions and special verdict are usually filed with the court pursuant to the terms of the scheduling order. When to provide the instructions depends on the court. Some judges require the instructions and verdict to be submitted with a trial report in advance of the pretrial conference. Other courts require filing at the pretrial. Still, other courts request that the instructions and verdict be provided on the first day of trial. Depending on the practice of the judge, there may be a general discussion about the instructions and special verdict at the pretrial conference. Frequently, judges will direct counsel to meet and confer about the instructions and special verdict to identify the disputed issues related to them and to advise the court.

Section 805.13(3) requires the court to have an instruction and verdict conference at the close of evidence and before arguments to the jury. The statute states that the court “shall conduct a conference with counsel outside the presence of the jury.”15 The purpose of the conference is to have the court and counsel discuss the form of the special verdict and the instructions to be given. The judge is to advise counsel what instructions will be given.

Section 805.13(3) further states that counsel “may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record.” If there is an objection to the instructions or verdict, the basis must be stated with particularity. “Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.”16

Often, judges will have what may be referred to as an “informal” instructions and verdict conference that are off-the-record discussions. Thereafter, a record is made as to the instructions and the verdict that will be submitted. The court will then ask for objections. Counsel must be mindful of the fact that informal discussions are not on the record and objections must be stated with particularity on the record.17 It should also be noted that submitting an alternative instruction that is rejected by the court is not sufficient to raise an objection to the instructions that are given.18

Once the form of the verdict is known and the instructions that will be given are identified, typically counsel’s final argument is directed to a discussion of the facts, how those facts should be decided in light of the jury instructions, coupled with a request for the jury to answer the verdict questions in the manner supported by the evidence as counsel sees it.

VII. Instructions and Special Verdict During Trial

The court may give preliminary instructions after the jury is sworn to assist them in assessing the evidence.19 The statutes allow preliminary instructions that provide a description of the nature of the case, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until the deliberations begin. The court is to advise counsel of the preliminary instructions that will be given.

The instructions form the basis for the proof to be offered pursuant to the requirements of the applicable law stated in the jury instructions. Witness testimony must meet the requirements of the burden of proof set forth in the instructions, such as, “Do you have an opinion to a reasonable degree of certainty within your field of expertise?” The instructions and special verdict provide the basis for argument to the jury and references are almost always made to the law found in the instructions, how it applies to the facts, and why the jury should answer the special verdict questions as requested by counsel.

During deliberations, the jury may submit questions to the court. The court may give supplemental instructions to the jury during deliberations. Section 805.13(5) states that after the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given or may give supplemental instructions as it deems appropriate. When questions are asked, the judge may decide to respond with a reinstruction. The judge may reinstruct on specific matters and this is not considered to be improper overemphasis of specific points of evidence or the contention of a party. The court’s duty on receiving a request from the jury is to respond to the jury’s question. Often this will take the form of telling the jury to rely on their collective wisdom, their recollection of the evidence and the instructions given by the court.

During jury deliberations, most courts require counsel to be able to return to the courtroom to address a question within a limited period of time. Counsel should be present and likely will be asked for input on how the judge should respond to jury requests. If the court decides to reinstruct the jury, counsel should be present. If counsel is not present, the court may consider the absence voluntary and a waiver of the right to be present.20 It is important for counsel to learn the court’s requirements for returning to the courtroom. If counsel leaves during deliberations, courts will frequently call them if the jury has questions, assuming counsel can return within a very limited period of time. Arrangements should be made by counsel so as not to waive the right to be present if questions are raised and reinstruction given.

During trial, a witness may comment on items that are clearly inadmissible such as a criminal conviction, use of drugs or alcohol, offers of settlement or payment by an insurance company or a motion in limine may be violated. When this impropriety occurs, whether inadvertent or intentional, counsel should object and move for a mistrial. The experience of the authors is that judges seek to avoid mistrials whenever possible. The motion for a mistrial is likely to be denied and may be taken under advisement. In addition, the judge may request counsel to give suggestions for a curative instruction. This places trial counsel in a dilemma. First, authoring and/or contributing to a curative instruction may waive the right to later claim prejudicial error. In addition, when a request for a curative instruction is given, it may emphasize evidence which counsel wishes to avoid. The most appropriate response may be to simply stand on the motion for a mistrial and ask the judge to do what is deemed best to cure the problem. Counsel may be prevented from challenging a curative instruction which was expressly approved during trial.21 Thus, it may be best when the jury has heard something it should not have, to simply allow the corrective action to be taken by the trial judge and stand on the motion for a mistrial.

The court may instruct the jury either before or after closing argument. This depends on the preference of the judge. There is no requirement that instructions be read in any particular order, but there is a suggested order in the pattern Wisconsin Jury Instructions.

The requirements and standards for appealing a jury verdict are beyond the scope of this article. However, there are circumstances that arise when the verdict is read of which counsel should be aware to avoid the potential for error. Section 805.09(2) requires a five-sixths verdict. The statute says a verdict agreed to by five-sixths of the jurors shall be the verdict. 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 of the questions. Thus, when the verdict is returned, the jury may be directed to continue its deliberations if the same ten jurors are not in agreement on all questions required on the claim. The proper procedure when a verdict does not have the requisite five-sixths is to direct the jury to continue its deliberation after appropriate reinstruction on the five-sixths rule.22 The court reinstructs the jury on the five-sixths rule together with the instruction on when the jurors are unable to agree. The five-sixths rule is applied based on a claim-by-claim basis.23 Simply put, in a standard negligence case, the same ten jurors need to agree on negligence, cause and damages.

In Lorbiecki v. King, there was a finding in favor of the plaintiff and one juror dissented on the causal negligence of the defendant and two other jurors dissented on the comparison of negligence and damage question.24 The court found that where the plaintiff was found eighty percent at fault, the dissent from causal negligence was extraneous and could be disregarded. In a medical malpractice action, ten jurors found a hospital negligent, and a different group of ten jurors found that negligence was not causal.25 The court held that the answer to the question on causation alone was sufficient for a valid verdict.26

A quotient verdict may also be dealt with before the jury is discharged. A quotient verdict is where all of the jurors select a damage figure, the damages are added together and the total is divided by the number of jurors. Problems with verdicts usually need to be dealt with on appeal or motions after verdict and attacking the substance of the verdict is beyond the scope of this article.

VIII. Conclusion

The jury instructions and special verdict can be helpful throughout the trial process. The instructions and special verdict can shape the course of discovery, assist in assessment of the likely outcome, and determine the proofs offered in argument at trial. The usefulness of the instructions and special verdict throughout the action are often overlooked. The pattern instructions found in the Wisconsin Civil Instructions are favored. Counsel should not be discouraged, however, from attempting to modify the pattern instructions and/or draft custom instructions that are specifically tailored to their case.

Addendum A


The defendant has denied that he/she was negligent in the operation of his or her automobile on the basis that, without prior warning, he or she was subjected to a sudden, unexpected and unanticipated emergency. When considering negligence as to management and control, bear in mind that a driver may suddenly be confronted with a situation, not brought about or contributed to by his or her own negligence, which prevents him or her from properly managing and controlling his or her vehicle. In a situation such as this, the driver is compelled to avoid a collision, and the driver is not negligent if he or she makes a choice of action or inaction that an ordinarily prudent person might make if placed in the same position. This is so even if it later appears that his or her choice was not the best or safest course. This rule does not apply to any person whose negligence, wholly or in part, created the situation. A person is not entitled to the benefit of this emergency rule unless he or she is without fault in the creation of the emergency. This rule is to be considered by you only with respect to your consideration of negligence as to management and control.

In addition, when a driver commits an act or omits a precaution which otherwise would constitute negligence, such act or omission is not negligence if the occurrence was not preceded by sufficient warning that a person of ordinary intelligence and prudence should reasonably foresee that he or she is subjecting the person or property of another to an unreasonable risk of injury or damage. However, when the circumstances are such that they should reasonably have been foreseen, then the person operating the vehicle may be found negligent.

[This instruction is based on Wis. JI-Civil 1105(a) (“Management and Control in an Emergency”) and Wis. JI-Civil 1021.2 (“Illness without Forewarning”).]

Addendum B


A contractor must exercise ordinary care. This duty requires the contractor to use the degree of care, skill and judgment and provide suitable materials as are used by others in the trade, and to use prudence, skill and judgment as would be used in the same or similar circumstances at the time the work is performed. A contractor who fails to conform to this standard is negligent. The burden is on the plaintiff to prove that the contractor was negligent.

If you find from the evidence that more than one method of doing construction work and/or that using different types of materials is recognized as reasonable in the trade, given the state of knowledge at the time the work was performed, then the contractor is at liberty to select any of the recognized methods. A contractor is not negligent because he or she chose to use one recognized method rather than another recognized method, if reasonable judgment was exercised in selecting the method employed.

You have heard testimony during this trial from expert witnesses. The reason for this is because the degree of judgment, skill and prudence which a reasonable contractor would exercise is not a matter within the common knowledge of lay persons. The standard is within the specialized knowledge of experts in the field and can only be established by the testimony of an expert. You, therefore, cannot speculate or guess about the standard of skill and prudence in deciding this case, but must rather attempt to determine it from expert testimony that you heard during the trial.

[This instruction is based on Wis. JI-Civil 1023 (“Medical Negligence”) and 1022.4 (“Negligence: Building Contractor”).]

Addendum C


There have been references in the testimony to documentation in the medical records. You are to assess whether the defendant was negligent in his or her care and treatment of the plaintiff as that has been defined for you. Documentation itself is not care and treatment, but documentation or the lack of it may assist you in your determination of the facts. The lack of a written record of an event does not necessarily mean that it did not occur. Whether something was done or occurred is for you to determine based on all the facts and the evidence.

Addendum D


Evidence in this case has been presented to you from depositions that were taken at an earlier time. This testimony is admissible under the law and constitutes evidence just as if the witness was present in court testifying on the witness stand. You are instructed that the deposition testimony received shall be subject to the same rules regarding credibility that apply to any other witness. The fact that testimony was read to you by deposition or presented on videotape does not entitle it to any lesser or greater weight than if the witness was actually present on the witness stand. You are instructed to assess the credibility of witnesses who testify by deposition, including expert witnesses, in accordance with the instructions previously given to you. Under the law of this state, any party may use prior testimony of a medical witness rather than requiring the witness to appear at trial.

Author Biographies:

William R. Wick is a defense lawyer who concentrates his practice in the areas of general personal injury and medical malpractice litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. He has been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow of the American College of Trial Lawyers and a member. He is a fellow of the American Board of Trial Advocates (ABOTA) and has been President of the Wisconsin Chapter. He has been included in Best Lawyers in America since 2007. Mr. Wick is a contributor to the Wisconsin Defense Counsel Journal and a frequent lecturer on topics involving civil litigation.

Ryan R. Graff is a defense lawyer who concentrates his practice in the areas of insurance defense, personal injury, insurance law and business and commercial law. He received his B.A. in 2003 from the University of Wisconsin - Madison, and his J.D. in 2006 from Marquette University Law School. Mr. Graff is a member of the Manitowoc County Bar Association, the Wisconsin State Bar Association, the American Bar Association, and is also a board member of the Friends of the Aquatic Center, Wisconsin Defense Counsel and Ascend Service. Mr. Graff has been involved in over thirty appeals and has argued his clients’ cases before the Wisconsin Supreme Court and the 7th Circuit Court of Appeals.


1 See Anderson ex rel. Skow v. Alpha Lava Agri. Inc., 209 Wis. 2d 337, 564 N.W.2d 788 (Ct. App. 1997).

2 See Nommensen v. Am. Cont’l Ins. Co., 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301.

3 See Minton v. Farmers Mut. Auto. Ins. Co., 256 Wis. 556, 41 N.W.2d 801 (1950).

4 See id.; Parents v. ANR Pipeline Co., 205 WI App 61, ¶ 42, 281 Wis. 2d 173, 696 N.W.2d 194.

5 See Northwestern Nat’l Ins. Co. v. Nemitz, 135 Wis. 2d 245, 400 N.W.2d 33 (Ct. App. 1986).

6 See SCR 20:3.1, 20:3.3 and 20:3.4.

7 See Bode v. Buchman, 68 Wis. 2d 276, 228 N.W.2d 118


8 Naden v. Johnson, 61 Wis. 2d 375, 212 N.W. 2d 85 (1973).

9 See, e.g., Wis. JI-Civil 1022.6 (“Liability of One Employing Independent Contractor”), 1277 (“Safety Belt: Failure to Use”), and 2761 (“Bad Faith by Insurance Company (Insurance Claim)”).

10 Heldt v. Nicholson Mfg. Co., 72 Wis. 2d 110, 116, 240 N.W.2d 154, 157-58 (1976); Connar v. W. Shore Equip., Inc., 68 Wis. 2d 42, 45, 227 N.W.2d 660, 662 (1975) (“At the requested special-verdict-stage of a lawsuit, it is immaterial that the entity is not a party or is immune from further liability.”); Pierringer v. Hoger, 21 Wis. 2d 182, 191-93, 124 N.W.2d 106, 111-12 (1963).

11 Unigard Ins. Co. v. Ins. Co. of N. Am., 184 Wis. 2d 78, 516 N.W.2d 762 (Ct. App 1994).

12 Connar, 68 Wis. 2d 42.

13 See id.

14 See Barry v. Employers Mut. Cas. Co., 201 WI 101, ¶ 42,

245 Wis. 2d 560, 362 N.W.2d 517.

15 Wis. Stat. § 805.13(3).

16 Id.

17 See Gosse v. Navistar Int’l Transp. Corp., 2000 WI App 8, 232 Wis. 2d 163, 605 N.W.2d 896.

18 See Waukesha County Dep’t of Soc. Serv. v. C.E.W. (In the Interest of C.E.W.), 124 Wis. 2d 47, 368 N.W.2d 47 (1985); Douglas v. Dewey, 154 Wis. 2d 451, 453 N.W.2d 500 (Ct. App. 1990).

19 See Wis. Stat. § 805.13(2)(b).

20 See May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980); Younger v. Rosenow Paper & Supply Co., 63 Wis. 2d 548, 217 N.W.2d 841 (1974).

21 See State v. Lancaster, 2002 WI App 74, 252 Wis. 2d 388, 642 N.W.2d 627.

22 See Bensend v. Harper, 2 Wis. 2d 474, 87 N.W.2d 285 (1958).

23 See Nommensen v. Am. Cont’l Ins. Co., 239 Wis. 2d 129, 619 N.W.2d 137, aff’d, 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301.

24 Lorbiecki v. King, 49 Wis. 2d 463, 182 N.W.2d 226 (1971).

25 See Nommensen, 239 Wis. 2d 129.

26 Id.