Wis JI-Civil 50

(NOTE TO THE TRIAL JUDGE: The following is a suggested instruction to be given to

the jury before opening statements are made by the lawyers for the parties. While most of

this instruction should apply to most cases, some parts of it do not apply to all cases, and

some parts of it may not apply to the case before you now. Read the instruction before it is

given and delete any parts that are not applicable. Also, the language used in this instruction

is “suggested” language. You may have another way of expressing the same ideas in this

instruction and may do so in a way consistent with Wisconsin law.)

MEMBERS OF THE JURY:

Before the trial begins, there are certain instructions you should have to better

understand your functions as a juror and how you should conduct yourself during the trial.

Your duty is to decide the case based only on the evidence presented at trial and the

law given to you by the court. Anything you may see or hear outside the courtroom is not

evidence. All people deserve fair treatment in our system of justice, regardless of their

personal characteristics. [These include, but are not limited to, race, national origin,

religion, age, ability, sex, gender identity, sexual orientation, education, income level,

occupation, or any other personal characteristic.]1 People make assumptions and form

opinions from their own personal backgrounds and experiences. Generally, we are aware

of these things, but you should consider the possibility that you have biases of which you

may not be aware. Like conscious bias, bias of which you may not be aware can affect how

you evaluate information and make decisions. This is called unconscious or implicit bias.

You must carefully evaluate the evidence and resist any urge to reach a verdict that is

influenced by bias for or against any party, witness, or attorney in order to treat all parties

equally and to arrive at a just and proper verdict based on the evidence.

In fairness to the parties, keep an open mind during the trial. Do not begin your

deliberations and discussion of the case until all the evidence is presented and I have

instructed you on the law. Do not discuss this case among yourselves or with anyone else

until your final deliberations in the jury room. This order is not limited to face-to-face

conversations. It also extends to all forms of electronic communications. Do not use any

electronic devices, such as a mobile phone or computer, text or instant messaging, or social

networking sites, to send or receive any information about this case or your experience as

a juror. Once deliberations begin in the jury room you will then be in a position to

intelligently and fairly exchange your views with other jurors.

CONDUCT

We will stop, or “recess,” from time to time during the trial. You may be excused from

the courtroom when it is necessary for me to hear legal arguments from the lawyers. If you

come in contact with the parties, lawyers [interpreters,] or witnesses, do not speak with

them. For their part, the parties, lawyers, [interpreters,] and witnesses will not contact or

speak with the jurors. Do not listen to any conversation about this case.

Do not research any information that you personally think might be helpful to you in

understanding the issues presented. Do not investigate this case on your own or visit the

scene, either in person or by any electronic means. Do not read any newspaper reports or

listen to any news reports on radio, television, over the internet, or any other electronic

application or tool about this trial. Do not consult dictionaries, computers, electronic

applications, social media, the internet, or other reference materials for additional

information. Do not seek information regarding the public records of any party or witness

in this case. Any information you obtain outside the courtroom could be misleading,

inaccurate, or incomplete. Relying on this information is unfair because the parties would

not have the opportunity to refute, explain, or correct it.

Do not communicate with anyone about this trial or your experience as a juror while

you are serving on this jury. Do not use a computer, cell phone, or other electronic device,

including personal wearable electronics, applications, or tools with communication

capabilities, to share any information about this case. For example, do not communicate by

telephone, blog post, e-mail, text message, instant message, social media post, or in any

other way, on or off the computer.

Do not permit anyone to communicate with you about this matter, either in person,

electronically, or by any other means. If anyone does so despite your telling them not to,

you should report that to me. I appreciate that it is tempting when you go home in the

evening to discuss this case with another member of your household, but you may not do

so. This case must be decided by you, the jurors, based on the evidence presented in the

courtroom. People not serving on this jury have not heard the evidence, and it is improper

for them to influence your deliberations and decisions in this case. After this trial is

completed, you are free to communicate with anyone in any manner.

These rules are intended to ensure that jurors remain impartial throughout the trial. If

any juror has reason to believe that another juror has violated these rules, you should report

that to me. If jurors do not comply with these rules, it could result in a new trial involving

additional time and significant expense to the parties and the taxpayers.

PARTIES

A party who brings a lawsuit is called a plaintiff. In this case, the plaintiff[s] [is] [are]

______________________ [state separately as to each if more than one]. The plaintiff[s]

[is] [are] suing to [note: state purposes of the action for each plaintiff, for example, recover

damages from a defendant].

[If there are multiple plaintiffs, give the following: You should decide the case of each

plaintiff as if it were a separate lawsuit. Each plaintiff is entitled to separate consideration

of [his] [her] [its] own claim(s). All instructions apply to each plaintiff unless I tell you

otherwise.]

A party against whom a claim is made is called a defendant. In this case, the

defendant[s] [is] [are] ________________________ [state separately to each if more than

one].

[If there are multiple defendants, give the following: You should decide the case

against each defendant as if it were a separate lawsuit. Each defendant is entitled to separate

consideration of [his] [her] [its] own defenses. All instructions apply to each defendant

unless I tell you otherwise.]

[If there is a counterclaiming defendant, give the following: The defendant[s] in this

case have also filed a claim against the plaintiff[s]. [Identify the party making the

counterclaim and the party against whom the counterclaim is made]. The claim of a

defendant against a plaintiff is called a counterclaim. The defendant[s] [is] [are]

counterclaiming for [note: state purposes of the counterclaim for each defendant, for

example, recover damages from a plaintiff.]

[If there are parties with subrogated interests or other parties named in the caption and

not appearing at trial, give the following: There [is another party] [are other parties] named

in this case that will not participate in this trial. Do not speculate on the reasons. Any claims

involving them are not to be considered by you in deciding this case.]

[If there are settled, dismissed, or withdrawn parties, give the following: [Former

party] is no longer a party in this case. [The claims of that party] [Claims against that party]

have been [settled] [dismissed] [withdrawn]. Do not speculate on the reasons.]

EVIDENCE

You are to decide the case solely on the evidence offered and received at trial.

Evidence is:

1. testimony of witnesses given in court, both on direct and cross-examination,

regardless of who called the witness;

2. deposition testimony presented during the trial;

3. exhibits admitted by me regardless of whether they go to the jury room; and

4. any facts to which the lawyers have agreed or stipulated or which I have directed

you to find.

Anything you may have seen or heard outside the courtroom is not evidence.

Remarks of the attorneys are not evidence. If any remarks suggest certain facts not

in evidence, disregard the suggestion.

ORDER OF PROOF

Normally, a plaintiff will produce all witnesses and exhibits supporting the plaintiff’s

claim against the defendant before the defendant introduces any evidence, although

exceptions are sometimes made to that rule to accommodate a witness. After the plaintiff’s

case is presented, the defendant may present witnesses and exhibits to establish any

defenses. There is no requirement that the defendant call any witnesses or present any

evidence [unless the defendant is making a claim against the plaintiff]. If the defendant

does introduce evidence, the plaintiff is then permitted to offer additional evidence to rebut

the defendant’s case. Each witness is first examined by the lawyer who called the witness

to testify, and then the opposing lawyer is permitted to cross-examine.

OBJECTIONS

At times during a trial, objections may be made to the introduction of evidence. I do

not permit arguments on objections to evidence to be made in your presence. Any ruling

upon objections will be based solely upon the law and are not matters which should concern

you at all. You must not infer from any ruling that I make or from anything that I should

say during the trial that I hold any views for or against either party to this lawsuit.

During the trial, I will sustain objections to questions asked without permitting the

witness to answer or, where an answer has been made, will instruct that it be stricken from

the record and that you are to disregard it and dismiss it from your minds. You should not

draw any inference from an unanswered question, nor may you consider testimony that has

been stricken in reaching your decision. This is because the law requires that your decision

be made solely upon the competent evidence before you.

[NOTETAKING NOT ALLOWED

Do not take notes during the trial. Taking notes will not be permitted in this case

because _______________.]

[NOTETAKING PERMITTED

You are not required to, but you may take notes during this trial, except during the

opening statements and closing arguments. The court will provide you with materials.

In taking notes, you must be careful that it does not distract you from carefully listening

to and observing the witnesses.

You may rely on your notes to refresh your memory during your deliberations.

Otherwise, keep them confidential. After the trial, the notes will be collected and

destroyed.]

TRANSCRIPTS NOT AVAILABLE FOR DELIBERATIONS; READING BACK

TESTIMONY

You will not have a copy of the written transcript of the trial testimony available for

use during your deliberations. [You may ask to have specific portions of the testimony read

to you.] You should pay careful attention to all the testimony because you must rely

primarily on your memory of the evidence and testimony introduced during the trial.

USE OF DEPOSITIONS

During the trial, the lawyers will often refer to and read from depositions. Depositions

are transcripts of testimony taken before the trial. The testimony may be that of a party or

anybody who has knowledge of facts relating to the lawsuit. Deposition testimony, just like

testimony during the trial, if received into evidence at the trial, may be considered by you

along with the other evidence in reaching your verdict in this case.

[JUROR QUESTIONING OF WITNESSES

You will be given the opportunity to ask written questions of the witnesses testifying

in this case.

After both lawyers have finished questioning a witness, you may raise your hand if

you have any questions that have not been addressed by the lawyers. Questions must be in

writing and directed to the witness and not to the lawyers or me. If I determine that your

question may be asked, I will ask it. If I do not ask your question, you should not speculate

what the answer to the question is or why I did not ask it.]

CREDIBILITY OF WITNESSES

It is the duty of the jury to scrutinize and to weigh the testimony of witnesses and to

determine the effect of the evidence as a whole. You are the sole judges of the credibility,

that is, the believability, of the witnesses and of the weight to be given to their testimony.

In determining the credibility of each witness and the weight you give to the testimony

of each witness, consider these factors:

• whether the witness has an interest or lack of interest in the result of this trial;

• the witness’ conduct, appearance, and demeanor on the witness stand;

• the clearness or lack of clearness of the witness’ recollections;

• the opportunity the witness had for observing and for knowing the matters the

witness testified about;

• the reasonableness of the witness’s testimony;

• the apparent intelligence of the witness;

• bias or prejudice, if any, has been shown;

• possible motives for falsifying testimony, if any has been shown; and

• all other facts and circumstances during the trial which tend either to support or to

discredit the testimony.

Then, give to the testimony of each witness the weight you believe it should receive.

[In your determination of credibility, you must avoid your own personal biases.]2

There is no magic way for you to evaluate the testimony; instead, you should use your

common sense and experience. In everyday life, you determine for yourselves the

reliability of things people say to you. You should do the same thing here.

BURDEN OF PROOF

In every trial there is a burden of proof. The phrase “burden of proof” means that when

a party comes into a courtroom and makes a claim, as the plaintiff is making here, the law

says that the claim must be proved. After the trial, I will instruct you on the proper burden

of proof to be applied to the questions in the verdict that will be submitted to you.

[CLOSING ARGUMENTS

After all of the evidence is introduced and both parties have rested, the lawyers will

again have an opportunity to address you in a closing argument. While the closing

arguments are very important, they are not evidence, and you are not bound by the

argument of either lawyer.

After the final arguments are concluded, I will instruct you on the rules of law

applicable to the case, and you will then retire for your deliberations. Your function as

jurors is to determine what the facts are and to apply the rules of law that I give you to the

facts. The conclusion you reach will be your verdict. You will determine what the facts are

from all the testimony that you hear and from exhibits that are submitted to you. You are

the sole and exclusive judges of the facts. In that field, neither I nor anyone may invade

your province. I will try to preside impartially during this trial and not express any opinion

concerning the facts. Any views of mine as to what the facts are totally irrelevant.

I do caution you, however, that under your oath as jurors, you are duty-bound to accept

the rules of law that I give you whether you agree with them or not. As the sole judges of

the facts in this case, you must determine which of the witnesses you believe, what portion

of their testimony you accept, and what weight you attach to it.]

OPENING STATEMENTS

We have now reached that stage of the proceedings where both lawyers have the

opportunity to make an opening statement.

The purpose of an opening statement is to outline for you what each side expects to

prove so that you will better understand the evidence as it is introduced during the trial. I

must caution you, however, that the opening statements are not evidence.

After [counsel/the parties] have completed their opening statements, we will begin the

trial by (plaintiff)’s lawyer calling the first witness.