Statement by Mark Thomsen on Joint and Several Liability Poll
A recently released survey relating to the Joint and Several Liability provisions included in the state budget tells only half of the story. The survey, sponsored by the biggest business and insurance lobbying groups in Wisconsin, asks residents a question that not only tries to paint the change in the law in the most undesirable light, using the most extreme example it can think of, but overlooks the very reason why that example will not happen.
The survey essentially asked whether people think, “someone found 1% at fault should be held responsible for 100% of the damages that occurred.” This is the hot button issue for businesses with a scenario that rarely ever has occurred. In fact when the State Bar of Wisconsin investigated the number of jury verdicts that involved joint and several liability in personal injury cases in the 1980s, they found it only applied in 1.6% of the cases. The study also found the average negligence attributed to the wrongdoer held jointly liable was 35% in those cases.
The scenario is even less likely to occur in the future since the state budget also requires that juries be told the consequences of their findings for the percentage of negligence found by the jury to be attributable to each party.
Wisconsin is one of only a few states that does not instruct the jury about what their findings of fault will mean for each of the parties involved. Unfortunately this too often results in jury verdicts that do not have the effect that the jury thought it would. Almost nothing undermines the confidence in the jury system than when jurors, trying to do the best job they can to deliver justice, learn that their findings did not result in the outcome they thought they had decided.
The present system of not informing the jury of the consequences of its answers does not promote openness. Our civil justice system should not depend on keeping information from jurors. Instead jurors should be informed of what the legal consequences of their factual findings are.
In this information age, it also seems unrealistic to think that jurors aren’t going to attempt to find out what their findings will mean. Some jurors may have more knowledge than others while others may use the Internet. All jurors should have the same information and know the effect of their verdict.
The joint and several liability provisions in the budget strike a fair balance between ensuring the innocent are not left stuck paying their own damages when someone else is at fault and making sure juries understand how their decisions will affect all parties.
The vast majority of states have adopted this “sunshine” approach to instructing the jury on comparative negligence issues. We have not found any evidence of runaway verdicts or higher insurance premiums because of this change. Rather these states have put their trust in jurors to render fair and just verdicts based on a full understanding of the law.
The citizens of Wisconsin are reasonable people who act sensibly when on a jury. Of course if you want jurors to make good decisions you have to tell them how the law works so they can reject unfair verdicts. I suspect that given the whole truth on joint and several liability Wisconsin citizens would come to a more rational decision in a poll too.
Mark L. Thomsen is the President of the Wisconsin Association for Justice, the state’s largest voluntary bar organization defending the civil justice system.