805.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 693 (1975);
1975 c. 218.
805.06 Annotation
Trial court properly refused to admit additional evidence on issue of fact which referee was appointed to resolve. Kleinstick v. Daleiden, 71 W (2d) 432, 238 NW (2d) 714.
805.07(1)(1)
Issuance and service. Subpoenas shall be issued and served in accordance with
ch. 885. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
805.07(2)
(2) Subpoena requiring the production of material. 805.07(2)(a)(a) A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein.
805.07(2)(b)
(b) Notice of a third-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a third-party subpoena requests the production of books, papers, documents or tangible things that are within the scope of discovery under
s. 804.01 (2) (a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
805.07(3)
(3) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
805.07(4)(a)(a) The subpoena shall be in the following form:
Subpoena
State of Wisconsin
.... County
The State of Wisconsin, To ....:
Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o'clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., 19...
[Handwritten Signature]
Attorney for [identify party]
(or other official title)
[Address]
[Telephone Number]
805.07(4)(b)
(b) For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].
805.07(5)
(5) Substituted service. A subpoena may be served in the manner provided in
s. 885.03 except that substituted personal service may be made only as provided in
s. 801.11 (1) (b) and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in
s. 801.11 (5) (a).
805.07 History
History: Sup. Ct. Order, 67 W (2d) 585, 697 (1975);
1979 c. 110; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 155;
1993 a. 112; Sup. Ct. Order, No. 95-09, 195 W (2d) xiii (1996).
805.07 Note
Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
805.07 Note
Judicial Council Note, 1995: Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them.
805.07 Annotation
Court may quash under (3) only subpoena to compel production of tangible things, not subpoena to compel attendance of witnesses. State v. Gilbert, 109 W (2d) 501, 326 NW (2d) 744 (1982).
805.08(1)(1)
Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
805.08(2)
(2) Number of jurors drawn. A sufficient number of jurors shall be called in the action so that the number applicable under
s. 756.096 (3) (b) remains after the exercise of all peremptory challenges to which the parties are entitled under
sub. (3). The court may order that additional jurors be impaneled. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them.
805.08(3)
(3) Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be impaneled under
sub. (2).
805.08(4)
(4) Jury view. On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.
805.08 History
History: Sup. Ct. Order, 67 W (2d) 585, 698 (1975);
1975 c. 218;
1977 c. 318;
1977 c. 447 s.
210;
1983 a. 226.
805.08 Note
Judicial Council Note, 1983: Sub. (2) is amended by replacing the concept of "alternate" jurors with a provision allowing the court to order the impaneling of additional jurors. The panel is then reduced to the proper size by lot immediately prior to final submission of the cause. These changes are intended to promote an attentive attitude and a collegial relationship among the members of the jury.
805.08 Annotation
The first sentence of prior sub. (3) is moved to sub. (2) for more logical placement in the statutes. The reference to "alternate" jurors in the final sentence is changed to "additional" jurors to reflect the modification of sub. (2). [Bill 320S]
805.08 Annotation
Case law makes clear that challenge for principal cause cannot be predicated on a ground not delineated in (1). Therefore, disqualification because of a juror's affiliation or interest in the insurance industry requires proof of bias or prejudice. Nolan v. Venus Ford, Inc. 64 W (2d) 215, 218 NW (2d) 507.
805.08 Annotation
Trial court did not abuse discretion in failing to strike for cause 3 veniremen who were friends of a prosecution witness where there was no showing of probable prejudice. Nyberg v. State, 75 W (2d) 400, 249 NW (2d) 524.
805.08 Annotation
Mere expression of predetermined opinion as to guilt during voir dire does not disqualify juror per se. Hammill v. State, 89 W (2d) 404, 278 NW (2d) 821 (1979).
805.08 Annotation
Disproportionate representation of group in one array is insufficient to establish systematic exclusion. State v. Pruitt, 95 W (2d) 69, 289 NW (2d) 343 (Ct. App. 1980).
805.08 Annotation
Trial court, sitting as trier of fact, committed error of law in making and relying on unrequested, unannounced, unaccompanied and unrecorded view of accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon, 120 W (2d) 560, 356 NW (2d) 175 (1984).
805.08 Annotation
See note to 752.35, citing State v. Wyss, 124 W (2d) 681, 370 NW (2d) 745 (1985).
805.08 Annotation
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis, 156 W (2d) 470, 457 NW (2d) 484 (1990).
805.08 Annotation
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 W (2d) 660, 482 NW (2d) 99 (1992).
805.08 Annotation
Verdict of thirteen member jury panel agreed to by defense and prosecution was not invalid. State v. Ledger, 175 W (2d) 116, 499 NW (2d) 199 (Ct. App. 1993).
805.08 Annotation
Guarantees of open public proceedings in criminal trials includes voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court of Cal. 464 US 501 (1984).
805.08 Annotation
No new trial was required where juror's failure to disclose during voir dire was harmless. Mc Donough Power Equipment, Inc. v. Greenwood, 464 US 548 (1984).
805.08 Annotation
Use of peremptory challenges by private litigant in civil action to exclude potential jurors solely because of race violates equal protection. Edmonson v. Leesville Concrete Co., 500 US 614, 114 LEd 2d 660 (1991).
805.08 Annotation
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
805.08 Annotation
See also notes to Article I, section 7.
805.09
805.09
Juries of fewer than 12; five-sixths verdict. 805.09(2)
(2) Verdict. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. 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 the questions.
805.09 History
History: Sup. Ct. Order, 67 W (2d) 585, 700 (1975);
1977 c. 318;
1977 c. 447 s.
210.
805.09 Annotation
"Claim-by-claim" analysis of multiple-question verdicts discussed. Giese v. Montgomery Ward, Inc. 111 W (2d) 392, 331 NW (2d) 585 (1983).
805.10
805.10
Examination of witnesses; arguments. Unless the judge otherwise orders, not more than one attorney for each side shall examine or cross-examine a witness and not more than 2 attorneys on each side shall sum up to the jury. The plaintiff shall be entitled to the opening and final rebuttal arguments. Plaintiff's rebuttal shall be limited to matters raised by any adverse party in argument. Waiver of argument by either party shall not preclude the adverse party from making any argument which the adverse party would otherwise have been entitled to make. Before the argument is begun, the court may limit the time for argument.
805.10 History
History: Sup. Ct. Order, 67 W (2d) 585, 701 (1975);
1975 c. 218.
805.10 Annotation
Attorney's concession during closing argument that client was negligent could not be construed as binding admission. Kuzmic v. Kreutzmann, 100 W (2d) 48, 301 NW (2d) 266 (Ct. App. 1980).
805.10 Annotation
This section authorizes judge to allow more than 2 attorneys on each side to sum up to jury but judge may not limit to fewer than 2 on each side. In Interest of C.E.W. 124 W (2d) 47, 368 NW (2d) 47 (1985).
805.11
805.11
Objections; exceptions. 805.11(1)
(1) Any party who has fair opportunity to object before a ruling or order is made must do so in order to avoid waiving error. An objection is not necessary after a ruling or order is made.
805.11(2)
(2) A party raising an objection must specify the grounds on which the party predicates the objection or claim of error.
805.11(3)
(3) Exceptions shall never be made.
805.11 History
History: Sup. Ct. Order, 67 W (2d) 585, 701 (1975);
1975 c. 218.
805.12
805.12
Special verdicts. 805.12(1)(1)
Use. Unless it orders otherwise, the court shall direct the jury to return a special verdict. 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. The jury shall answer in writing. In cases founded upon negligence, the court need not submit separately any particular respect in which the party was allegedly negligent. The court may also direct the jury to find upon particular questions of fact.
805.12(2)
(2) Omitted issue. When some material issue of ultimate fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, the issue shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on the issue shall be deemed a waiver of jury trial on that issue.
805.12(3)
(3) Clerk's entries after verdict. Upon receiving a verdict, the clerk shall make an entry on the minutes specifying the time the verdict was received and the court's order setting time for motions after verdict under
s. 805.16. The verdict and special findings shall be filed.
805.12 History
History: Sup. Ct. Order, 67 W (2d) 585, 702 (1975);
1975 c. 218.
805.12 Annotation
If court can find as matter of law that party is causally negligent, contrary to jury's answer, and jury attributes some degree of comparative negligence to that party, court should change causal negligence answer and permit jury's comparison to stand. Ollinger v. Grall, 80 W (2d) 213, 258 NW (2d) 693.
805.12 Annotation
See note to 805.15, citing Fouse v. Persons, 80 W (2d) 390, 259 NW (2d) 92.
805.12 Annotation
See note to 751.06, citing Schulz v. St. Mary's Hospital, 81 W (2d) 638, 260 NW (2d) 783.
805.12 Annotation
Where evidence conflicts and inconsistent theories on cause of event are advanced, instructions on both theories should be given. Sentell v. Higby, 87 W (2d) 44, 273 NW (2d) 780 (Ct. App. 1978).
805.12 Annotation
See note to 805.14, citing Westfall v. Kottke, 110 W (2d) 86, 328 NW (2d) 481 (1983).
805.12 Annotation
Ambiguities in jury questions were "omitted issues" under (2) and therefore properly determined by trial court. Badtke v. Badtke, 122 W (2d) 730, 364 NW (2d) 547 (Ct. App. 1985).
805.12 Annotation
Special verdict formulation in Wisconsin. Decker and Decker, 60 MLR 201.
805.12 Annotation
Product liability verdict formulation in Wisconsin. Slattery et al. 61 MLR 381.
805.13
805.13
Jury instructions; note taking; form of verdict. 805.13(1)(1)
Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record.
805.13(2)
(2) Preliminary instructions and note taking. 805.13(2)(a)(a) After the trial jury is sworn, the court shall determine if the jurors may take notes of the proceedings:
805.13(2)(a)1.
1. If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of the proceedings, except the opening statements and closing arguments, if they so desire and that the court will provide materials for that purpose if they so request. The court shall stress the confidentiality of the notes to the jurors. The jurors may refer to their notes during the proceedings and deliberation. The notes may not be the basis for or the object of any motion by any party. After the jury has rendered its verdict, the court shall ensure that the notes are promptly collected and destroyed.
805.13(2)(a)2.
2. If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.
805.13(2)(b)
(b) The court may give additional preliminary instructions to assist the jury in understanding its duty and the evidence it will hear. The preliminary instructions may include, without limitation, 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 deliberations begin. Any such preliminary jury instructions may be given again in the charge at the close of the evidence. The additional preliminary instructions shall be disclosed to the parties before they are given and either party may object to any specific instruction or propose instructions of its own to be given prior to trial.
805.13(3)
(3) Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. 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. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.
805.13(4)
(4) Instruction. The court shall instruct the jury before or after closing arguments of counsel. Failure to object to a material variance or omission between the instructions given and the instructions proposed does not constitute a waiver of error. The court shall provide the jury with one complete set of written instructions providing the burden of proof and the substantive law to be applied to the case to be decided.
805.13(5)
(5) Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate.
805.13 History
History: Sup. Ct. Order, 67 W (2d) 585, 703 (1975);
1975 c. 218;
1979 c. 128;
1981 c. 358; Sup. Ct. Order, 130 W (2d) xi (1987).
805.13 Note
Judicial Council Note, 1986: Sub. (2) (b) is amended to provide that preliminary instructions may include 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 deliberations begin.
