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 Wis. 2d 585, 703 (1975);
1975 c. 218;
1979 c. 128;
1981 c. 358; Sup. Ct. Order, 130 Wis. 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.
805.13 Annotation
Sub. (4) is amended to required that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]
805.13 Annotation
Specific evidentiary facts may be incorporated into an instruction provided they do not lead the jury to believe that the court has prejudged the evidence. State v. Dix,
86 Wis. 2d 474,
273 N.W.2d 250 (1979).
805.13 Annotation
Under sub. (3), a failure to object waives errors of substance as well as of form. Gyldenvand v. Schroeder,
90 Wis. 2d 690,
280 N.W.2d 235 (1979).
805.13 Annotation
It was proper to instruct a jury that it need not consider a lesser offense if it found the defendant guilty of a higher one. State v. McNeal,
95 Wis. 2d 63,
288 N.W.2d 874 (Ct. App. 1980).
805.13 Annotation
Although failure to object at the verdict conference to a substantive defect in the verdict constituted waiver, failure to object did not preclude the court's consideration of the defect under s. 751.06. Clark v. Leisure Vehicles, Inc.
96 Wis. 2d 607,
292 N.W.2d 630 (1980).
805.13 Annotation
When an objection at the verdict conference was not specific enough to preserve an appeal, the supreme court reversed the trial court under s. 751.06. Air Wisconsin, Inc. v. North Central Airlines, Inc.
98 Wis. 2d 301,
296 N.W.2d 749 (1980).
805.13 Annotation
Under the separation of powers doctrine, ss. 805.13 (4) and 972.10 (5) require submission to the jury of written instructions on the substantive law but do not require an automatic reversal when the trial court fails to do so. Instructions on the burden of proof and presumption of innocence are procedural, not substantive law. In Matter of E. B.
111 Wis. 2d 175,
330 N.W.2d 584 (1983).
805.13 Annotation
When an alleged error went to the integrity of the fact-finding process, the trial court exercised its discretion to review the circumstantial evidence instruction irrespective of the defendant's waiver of objection. State v. Shah,
134 Wis. 2d 246,
397 N.W.2d 492 (1986).
805.13 Annotation
It is not error for the trial court to fail to instruct sua sponte on a lesser included offense. The trial court should not interfere with the parties' trial strategy. State v. Myers,
158 Wis. 2d 356,
461 N.W.2d 777 (1990).
805.13 Annotation
Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn,
193 Wis. 2d 346,
535 N.W.2d 1 (Ct. App. 1995).
805.13 Annotation
If an attorney disagrees with an instruction that a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen,
204 Wis. 2d 115,
553 N.W.2d 820 (Ct. App. 1996).
805.13 Annotation
Appellate courts have no power to reach waived issues concerning unobjected to jury instructions. State v. Ward,
228 Wis. 2d 301,
596 N.W.2d 887 (Ct. App. 1999).
805.14
805.14
Motions challenging sufficiency of evidence; motions after verdict. 805.14(1)
(1)
Test of sufficiency of evidence. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
805.14(2)
(2) Nonsuit abolished; misdesignation of motions. 805.14(2)(a)(a) The involuntary nonsuit is abolished. If a motion for involuntary nonsuit is made, it shall be treated as a motion to dismiss.
805.14(2)(b)
(b) When a party mistakenly designates a motion to dismiss as a motion for directed verdict, or vice versa; or mistakenly designates a motion to change answer as a motion for judgment notwithstanding the verdict, or vice versa; or otherwise mistakenly designates a motion challenging the sufficiency of evidence as a matter of law, the court shall treat the motion as if there had been a proper designation.
805.14(3)
(3) Motion at close of plaintiff's evidence. At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff.
805.14(4)
(4) Motion at close of all evidence. In trials to the jury, at the close of all evidence, any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict or dismissal or by moving the court to find as a matter of law upon any claim or defense or upon any element or ground thereof.
805.14(5)(a)(a)
Motion for judgment. A motion for judgment on the verdict is not required. If no motion after verdict is filed within the time period specified in
s. 805.16, judgment shall be entered on the verdict at the expiration thereof. If a motion after verdict is timely filed, judgment on the verdict shall be entered upon denial of the motion.
805.14(5)(b)
(b)
Motion for judgment notwithstanding verdict. A party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict in the event that the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.
805.14(5)(c)
(c)
Motion to change answer. Any party may move the court to change an answer in the verdict on the ground of insufficiency of the evidence to sustain the answer.
805.14(5)(d)
(d)
Motion for directed verdict. A party who has made a motion for directed verdict or dismissal on which the court has not ruled pending return of the verdict may renew the motion after verdict. In the event the motion is granted, the court may enter judgment in accordance with the motion.
805.14(5)(e)
(e)
Preliminary motions. It is not necessary to move for a directed verdict or dismissal prior to submission of the case to the jury in order to move subsequently for a judgment notwithstanding the verdict or to change answer.
805.14(5)(f)
(f)
Telephone hearings. Motions under this subsection may be heard as prescribed in
s. 807.13.
805.14(6)
(6) Grounds to be stated with particularity. In any motion challenging the sufficiency of evidence, the grounds of the motion shall be stated with particularity. Mere conclusory statements and statements lacking express reference to the specific element of claim or defense as to which the evidence is claimed to be deficient shall be deemed insufficient to entitle the movant to the order sought. If the court grants a motion challenging the sufficiency of the evidence, the court shall state on the record or in writing with particularity the evidentiary defect underlying the order.
805.14(7)
(7) Effect of order of dismissal. Unless the court in its order for dismissal otherwise specifies for good cause recited in the order, any dismissal under this section operates as an adjudication upon the merits.
805.14(8)
(8) Nonwaiver. A party who moves for dismissal or for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdict.
805.14(9)
(9) Involuntary dismissal of counterclaim, cross-claim or 3rd party claim. This section applies to counterclaims, cross-claims and 3rd party claims.
805.14 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 704 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975);
1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi (1986); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
805.14 Note
Judicial Council Committee's Note, 1976: Sub. (3) applies only to trials to the jury, codifying Household Utilities, Inc. v. Andrews Co., 71 Wis. 2nd 17 (1976). The standard for granting a motion under sub. (3) is found in sub. (1). Motions made by a defendant for dismissal after a plaintiff has completed presenting his evidence in trials to the court is governed by s. 805.17 (1). [Re Order effective Jan. 1, 1977]
805.14 Note
Judicial Council Note, 1984: Sub. (5) (a) is amended by eliminating the requirement for a motion before judgment is entered on a verdict. [Re Order effective July 1, 1984]
805.14 Note
Judicial Council Note, 1988: Sub. (5) (f) [created] allows motions after verdict to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
805.14 Annotation
An inconsistent verdict, if not timely remedied by reconsideration by the jury, must result in a new trial unless the party injured by the inconsistency waives that portion of its damage claim and the waiver does not result in a change of the prevailing party as found by the jury. Westfall v. Kottke,
110 Wis. 2d 86,
328 N.W.2d 481 (1983).
805.14 Annotation
If there is any credible evidence that, under any reasonable view, fairly admits of an inference that supports the jury's finding, the finding may not be overturned. GenStar v. Bankruptcy Estate of Lake Geneva Sugar Shack,
215 Wis. 2d 104,
572 N.W.2d 881 (Ct. App. 1997).
805.15(1)(1)
Motion. A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice. Motions under this subsection may be heard as prescribed in
s. 807.13. Orders granting a new trial on grounds other than in the interest of justice, need not include a finding that granting a new trial is also in the interest of justice.
805.15(2)
(2) Order. Every order granting a new trial shall specify the grounds therefor. No order granting a new trial shall be valid or effective unless the reasons that prompted the court to make such order are set forth on the record, or in the order or in a written decision. In such order, the court may grant, deny or defer the awarding of costs.
805.15(3)(a)
(a) The evidence has come to the moving party's notice after trial; and
805.15(3)(b)
(b) The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and
805.15(3)(c)
(c) The evidence is material and not cumulative; and
805.15(3)(d)
(d) The new evidence would probably change the result.
805.15(4)
(4) Alternate motions; conditional order. If the court grants a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial. If the motion for a new trial is thus conditionally granted and the judgment has been reversed on appeal, the new trial shall proceed unless the appellate court shall have otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
805.15(5)
(5) Appeal. If the court denies a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the party who prevailed on that motion may, as appellee, assert for the first time, grounds which entitle the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict or motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict. If the appellate court reverses the judgment, nothing in this section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
805.15(6)
(6) Excessive or inadequate verdicts. If a trial court determines that a verdict is excessive or inadequate, not due to perversity or prejudice or as a result of error during trial (other than an error as to damages), the court shall determine the amount which as a matter of law is reasonable, and shall order a new trial on the issue of damages, unless within 10 days the party to whom the option is offered elects to accept judgment in the changed amount. If the option is not accepted, the time period for petitioning the court of appeals for leave to appeal the order for a new trial under
ss. 808.03 (2) and
809.50 commences on the last day of the option period.
805.15 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 708 (1975);
1975 c. 218;
1979 c. 110;
1983 a. 219; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
2001 a. 16.
805.15 Note
Judicial Council Note, 1983: Sub. (6) is amended to codify the holding of Wick v. Mueller,
105 Wis. 2d 191,
313 N.W.2d 749 (1982) that orders for new trials under this subsection are not appealable as of right and that the time period for seeking leave to appeal under ss. 808.03 (2) and 809.50, stats., is computed from the last day of the option period set forth in the trial court's order. [Bill 151-S]
805.15 Note
Judicial Council Note, 1988: Sub. (1) is amended to allow motions for new trial to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
805.15 Annotation
A statement that the verdict is contrary to the weight of evidence will not support an order granting a new trial in the interest of justice. DeGroff v. Schmude,
71 Wis. 2d 554,
238 N.W.2d 730 (1976).
805.15 Annotation
That an expert listed in a pretrial order was not called as a witness at trial and the expert's report was admitted did not constitute grounds for granting a new trial. Karl v. Employers Insurance of Wausau,
78 Wis. 2d 284,
254 N.W.2d 255 (1977).
805.15 Annotation
If the answer to one material question shows that the jury made its answer perversely, the trial court should set aside the entire verdict unless the court is satisfied that other questions were not affected by the perversity. Fouse v. Persons,
80 Wis. 2d 390,
259 N.W.2d 92 (1977).
805.15 Annotation
If there is a reasonable basis for the trial court's determination under sub. (6) as to proper verdict amount, the decision will be sustained. Koele v. Radue,
81 Wis. 2d 583,
260 N.W.2d 766 (1978).
805.15 Annotation
When a jury award of damages was so inadequate that it indicated prejudice, the trial court did not abuse its discretion by ordering a new trial on all issues. Larry v. Commercial Union Ins. Co.
88 Wis. 2d 728,
277 N.W.2d 821 (1979).
805.15 Annotation
An order for a new trial under sub. (6) is not a final order and is not appealable as of right under s. 808.03 (1). Earl v. Marcus,
92 Wis. 2d 13,
284 N.W.2d 690 (Ct. App. 1979).
805.15 Annotation
Sub. (6) establishes that one who wishes to take an appeal from the interlocutory order issued by the court. Wick v. Mueller,
105 Wis. 2d 191,
313 N.W.2d 799 (1982).
805.15 Annotation
A shockingly low award of damages justified a new trial on that issue. Westfall v. Kottke,
110 Wis. 2d 86,
328 N.W.2d 481 (1983).
805.15 Annotation
A court may order a retrial under sub. (6) on punitive damages alone. Badger Bearing v. Drives & Bearings,
111 Wis. 2d 659,
331 N.W.2d 847 (Ct. App. 1983).
805.15 Annotation
The trial court may not grant a new trial based solely upon unobjected to instructional errors, but may use that error to grant a new trial in the interest of justice. State v. Harp,
150 Wis. 2d 861,
443 N.W.2d 38 (Ct. App. 1989).
805.15 Annotation
A new trial in the interest of justice under sub. (1), when the controversy was not fully tried, is not limited to cases of evidentiary error and does not require a showing of a probable different result in the 2nd trial. State v. Harp,
161 Wis. 2d 773,
469 N.W.2d 210 (Ct. App. 1991).
805.15 Annotation
The standard for granting a new trial in the interest of justice when the verdict is contrary to the great weight of the evidence is less stringent than for granting a motion challenging the sufficiency of the evidence under s. 805.14. Sievert v. American Family Mutual Insurance Co.
180 Wis. 2d 426,
509 N.W.2d 75 (Ct. App. 1993).
805.15 Annotation
A co-defendant's testimony that the defendant was aware of at trial, but unable to present because the co-defendant refused to testify on 5th amendment grounds, was not newly discovered evidence. State v. Jackson,
188 Wis. 2d 187,
525 N.W.2d 739 (Ct. App. 1994).
805.16
805.16
Time for motions after verdict. 805.16(1)
(1) Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents.
805.16(2)
(2) The time for hearing arguments on motions after verdict shall be not less than 10 nor more than 60 days after the verdict is rendered, unless enlarged pursuant to motion under
s. 801.15 (2) (a).
805.16(3)
(3) If within 90 days after the verdict is rendered the court does not decide a motion after verdict on the record or the judge, or the clerk at the judge's written direction, does not sign an order deciding the motion, the motion is considered denied and judgment shall be entered on the verdict.
805.16(4)
(4) Notwithstanding
sub. (1), a motion for a new trial based on newly discovered evidence may be made at any time within one year after verdict. Unless an order granting or denying the motion is entered within 90 days after the motion is made, it shall be deemed denied.
805.16(5)
(5) The time limits in this section for filing motions do not apply to a motion for a new trial based on newly discovered evidence that is brought under
s. 974.06.
805.16 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 711 (1975); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order 160 Wis. 2d xiii (1991);
2001 a. 16.
805.16 Note
Judicial Council Note, 1984: The requirement that the judge set dates for filing and hearing motions after verdict is repealed in favor of a time limit for such motions. The prior rule encouraged frivolous motions and caused unnecessary hearings. [Re Order effective July 1, 1984]
805.16 Note
Judicial Council Note, 1986: Sub. (1) specifies that the trial court may allow more than 20 days for motions after verdict to be filed, if a schedule for the filing of motions and supporting materials is ordered within that time.
805.16 Annotation
Sub. (2) clarifies that the time for hearing motions after verdict may be enlarged upon motion and good cause shown. However, any such enlargement does not affect the requirement that the motion be decided within 90 days after the verdict is rendered. See sub. (3) and s. 801.15 (2) (c), Stats.
805.16 Annotation
Sub. (4) is revised to require that a motion for new trial based on newly discovered evidence be decided within 90 days after it is made. The prior statute required such motions to be decided within 30 days after hearing, but did not require the hearing to be held within any specified time. [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: Sub. (3) is rewritten to clarify that if a motion after verdict is granted within 90 days, it will not be deemed denied merely because such order is not entered within 90 days after verdict. [Re Order eff. 7-1-91]
805.16 Annotation
Motions for directed verdicts and motions to dismiss made at the close of the plaintiff's case are motions challenging the sufficiency of the evidence under this section. Jansen Co. v. Milwaukee Area District Board,
105 Wis. 2d 1,
312 N.W.2d 813 (1981).
805.16 Annotation
Time periods under this section may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Insurance Co.
130 Wis. 2d 166,
387 N.W.2d 82 (Ct. App. 1986).
805.16 Annotation
Failure to present timely postverdict motions does not deprive the court of appeals of jurisdiction to review a judgment. Hartford Insurance Co. v. Wales,
138 Wis. 2d 508,
406 N.W.2d 426 (1987).
805.16 Annotation
Once the trial court loses authority to set aside a verdict under this section by failing to act within 90 days, it cannot achieve the same result by vacating the judgment under s. 806.07 (1) (h). Manly v. State Farm Fire and Casualty Co.
139 Wis. 2d 249,
407 N.W.2d 306 (Ct. App. 1987).
805.16 Annotation
The trial court is not competent to consider sub. (1) motions if the movant fails to timely file the motions and fails to obtain an extension before expiration of the 20-day period. Ahrens-Cadillac Olds v. Belongia,
151 Wis. 2d 763,
445 N.W.2d 744 (Ct. App. 1989).
805.16 Annotation
Trial court actions under s. 805.16 permitted pending appeal under s. 808.075 are subject to sub. (1) time limits. Schmidt v. Smith,
162 Wis. 2d 363,
469 N.W.2d 855 (Ct. App. 1991).
805.16 Annotation
A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195, ___Wis. 2d. ___, ___ N.W.2d ___.
805.16 Annotation
This section applies to trial-related motions. An award of attorney fees is not trial-related. Gorton v. American Cyanamid Co.
194 Wis. 2d 203,
533 N.W.2d 746 (1995).
805.17
805.17
Trial to the court. 805.17(1)(1)
Motion at close of plaintiff's evidence. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his or her evidence, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff on that ground or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in
sub. (2). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section operates as an adjudication upon the merits.
