Wisconsin Pattern Civil Jury Instructions Update
Amy Freiman, Hills Legal Group, Ltd.

I.              Introduction

WDC maintains various substantive law committees which are dedicated to their respective topic. The Civil Jury Instruction Committee (the “Committee”) is one of the fifteen committees. Approximately three times per year, the Committee receives a report from the Wisconsin Jury Instruction Committee and Office of Judicial Education on civil jury instructions that the Wisconsin Jury Instruction Committee is considering revising and/or creating based on developments in the law, whether it be through case law or statutory changes made by the legislature. Upon receipt of the report from the Wisconsin Jury Instruction Committee, the Committee will report to the WDC Board of Directors and determine if WDC will submit an official position on the proposed revision to an existing civil jury instruction and/or creation of a new civil jury instruction. Additionally, the Committee receives requests from WDC members to submit proposed new civil jury instructions to the Wisconsin Jury Instruction Committee for consideration. When those requests are received from members, the Committee will discuss with the WDC Board of Directors and submit the proposed instructions to the Wisconsin Jury Instruction Committee for consideration. 

The purpose of this article is to highlight revisions the Wisconsin Jury Instruction Committee made to existing civil jury instructions, as well as civil jury instructions created by the Wisconsin Jury Instruction Committee over the last year or so. Please note that this article will not provide the full jury instruction for each instruction discussed below. The full instruction should be reviewed prior to use in a case. You can review all civil jury instructions for free on the Wisconsin Law Library website.

 II.            Specific Civil Jury Instructions

 a.     Wis. JI-Civil 5: Comment: General-Neutral Language

The Wisconsin Jury Instruction Committee created a comment to explain the committee’s approach to the use of gender-neutral language throughout the civil jury instructions and to provide references for users who wish to use gender-neutral language in revising or supplementing published instructions.[1]

In this comment, the Wisconsin Jury Instruction Committee addresses substantive gender bias and the use of pronouns throughout the instructions. The Wisconsin Jury Instruction Committee acknowledges that trial courts have the discretion to use the pronouns “they” or “their” in place of “he” or “she” when referring to a single person. This comment also provides techniques to assist with the revision of any form jury instruction that may be required based on the facts of a case. The Wisconsin Jury Instruction Committee indicates it attempts to prepare instructions that are free from substantive gender bias which means statements that indicate that one gender is to be treated differently from the other in applying law as described in the instructions.

In this regard, the Wisconsin Jury Instruction Committee added language to Wis. JI-Civil 50 – Preliminary Instruction: Before Trial – to address assumptions individuals make from their own personal backgrounds and experiences to ask jurors to consider the possibility that their bias may affect how information is evaluated, and decisions are made.[2]

 b.    Wis. JI-Civil 260: [Expert] Opinion Testimony

The Wisconsin Jury Instruction Committee revised Wis. JI-Civil 260 regarding expert opinion testimony. The revised instruction now includes brackets around the word “expert” in the instruction title to signify that its inclusion is optional. The Wisconsin Jury Instruction Committee suggests omitting the term from the title of the instruction provided to the jury to reduce the potential risk of “judicial vouching” – the concern that a jury might place undue weight on testimony from a witness labeled as an “expert” by the judge.[3] The Wisconsin Jury Instruction Committee further recommends that trial judges minimize any declarations or references to a witness’s expertise in the jury’s presence to mitigate the risk of “judicial vouching.”

The Wisconsin Jury Instruction Committee notes that its recommendation to trial judges is based, in part, on Professor Daniel Blinka’s assessment that, under the current rules of evidence, asking the court to make a formal finding of expertise before the jury is both inappropriate and unnecessary. As explained by Profession Blinka:

There is no set procedure for qualifying an expert witness. Traditionally, the proponent elicits the witness’ education, training, and experience at the start of the direct examination. Under common law practice, the proponent then asked the court to make a “finding” that the witness was an expert in the identified field. If the witness’ credentials were dubius, the court might allow the opponent to voir dire the witness regarding qualifications. Before any questions were put to the witness regarding the facts of the case, the trial judge had to find he or she was an “expert.” 

The Wisconsin Jury Instruction Committee further notes that under Wis. Stat. § 907.02, the common law procedure is both inappropriate and unnecessary, partly because a formal finding of expertise could be mistaken by the jury for the judge’s endorsement of the witness’ testimony. Although the judge must determine the witness’ qualifications under Wis. Stat. § 901.04(1)(a), that finding need not be revealed to the jury.

 c.     Wis. JI-Civil 1133: School Bus: Equipped with Flashing Red Warning Lights and Without Amber Warning Lights and 1133A: School Bus: Equipped with Flashing Red and Amber Warning Lights

The Wisconsin Jury Instruction Committee approved a revision to Wis. JI-Civil 1133 to make the instruction consistent with 2013 Wisconsin Act 96. This Act modified the statute to require that a school bus “must be equipped with a 360-degree flashing white strobe light and either: (a) flashing red warning lights; or (b) flashing red and amber warning lights.”[4] The change to the law was reflected in the instruction. Similarly, the Wisconsin Jury Instruction Committee created Wis. JI-Civil 1133A for school buses equipped with flashing red and amber warning lights. The new instruction sets forth the requirements for an operator of a school bus equipped with flashing red and amber warning lights as specified in Wis. Stat. § 347.25(2).[5]

 d.    Wis. JI-Civil 1340: Stop: For School Bus Loading or Unloading Children

Similar to Wis. JI-Civil 1133, the Wisconsin Jury Instruction Committee revised Wis. JI-Civil 1340 to reflect 2013 Wisconsin Act 96 and an amendment to Wis. Stat. § 347.25(2). Wis. JI-Civil 1340 now provides that a driver of a vehicle that approaches from the front or rear of any school bus that has stopped on a street or highway when the bus is displaying flashing red warning lights shall stop the vehicle not less than twenty feet from the bus and shall remained stopped until the bus resumes motion or the bus driver extinguishes the flashing warning lights.[6]

 e.     Wis. JI-Civil 1391: Liability of Owner or Keeper of Animal: Common Law

The Wisconsin Jury Instruction Committee revised the suggested special verdict language in Wis. JI-Civil 1391 to add the word “negligence” to question four. The prior suggested language was “Did (defendant) use ordinary care to restrain and control the animal?” The revised suggested language now states “Was (defendant) negligent in failing to use ordinary care to restrain and control the animal?”[7]

 f.      Wis. JI-Civil 1920-1932: Nuisance

The revisions made by the Wisconsin Jury Instruction Committee to the civil jury instructions on nuisance law expanded on how to determine whether a nuisance is permanent or continuing and the impact such a designation has on the applicable statute of limitations.[8]

 g.     Wis. JI-Civil 2418A-2418B: Unfair Trade Practice 

The Wisconsin Jury Instruction Committee renumbered Wis. JI-Civil 2418 (Unfair Trade Practice: Unfair, Deceptive, or Misleading Representation: Wis. Stat. §100.18(1)) to 2418B. The Wisconsin Jury Instruction Committee then created Wis. JI-Civil 2418A which addresses claims brought by private parties under Wis. Stat. § 100.18(11)(b)2. Wis. JI-Civil 2418B addresses claims brought by the state pursuant to Wis. Stat. § 100.18(1). A claim brought by a private party has three elements while a claim brought by the state has two elements.[9]

 III.          Conclusion

While this article addresses some of the revisions the Wisconsin Jury Instruction Committee made to existing civil jury instructions and the creation of new civil jury instructions, the article does not address all changes. Lawyers are encouraged to review all civil jury instructions for any updates prior to preparing proposed jury instructions to file with the court and/or use at trial. Furthermore, to the extent that any WDC member has created an instruction for use at trial that may be helpful in other matters, the Committee asks that those instructions be provided for potential submission to the Wisconsin Jury Instruction Committee for consideration. 

Author Biography:

Amy M. Freiman is a shareholder at Hills Legal Group, Ltd. in Waukesha. After graduation from the University of St. Thomas School of Law, Amy worked for another firm in the Waukesha area for three years before joining Hills Legal Group in 2014. Since joining Hills Legal Group, she has devoted her practice to insurance defense and coverage matters. Amy has represented insurers in a variety of different types of cases within the ambit of the insurance defense umbrella. She has been named a Rising Star since 2019. Amy currently serves on the Wisconsin Defense Council Board of Directors and was the former president of the Waukesha Bar Association. In her free time, she enjoys spending her time with her husband, three children, and pets, attending sporting events, and playing recreational sports.