(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:
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.
If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.
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.
(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.
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.
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.
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).
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.
Effective date note
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]
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
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
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).
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
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
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
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
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
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).
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), 92-2475
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), 98-2530
A party is not held to a waiver under sub. (3) when a potentially inconsistent verdict is produced by the substance of the jury's verdict, as opposed to the wording of the verdict. LaCombe v. Aurora Medical Group, 2004 WI App 119
, 274 Wis. 2d 771
, 683 N.W.2d 532
A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under sub. (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234
, 288 Wis. 2d 188
, 708 N.W.2d 13
A trial court's decision to read jury instructions on damages prior to certain testimony was a proper exercise of discretion and the court properly denied the defendant's motion for mistrial. Because the instructions were not disclosed to the parties before they were read by the court, the reading did not qualify as a preliminary instruction under sub. (2) (b). The trial court has broad discretion over the conduct of litigation and saw a need to orient the jury to the subject matter of the testimony when the evidence was jumping from expert testimony to fact testimony to damage testimony in a long and complex trial. Hegarty v. Beauchaine, 2006 WI App 248
, 297 Wis. 2d 70
, 727 N.W.2d 857
A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47
, 347 Wis. 2d 559
, 830 N.W.2d 681
Defining the meaning of a word in a jury instruction is akin to defining the meaning of a word in a statute. Determining the meaning of the word in a jury instruction is a legal question that appellate courts review de novo. When the word is not defined in the jury instruction, the appellate court will assign the word its common, ordinary, and accepted meaning, which may be ascertained by resort to a dictionary. State v. Bowen, 2015 WI App 12
, 359 Wis. 2d 659
, 859 N.W.2d 166
In this case, the defendant waived his objection to the use of a jury instruction by failing to object at the jury instruction and verdict conference as required under sub. (3). The defendant's post-conviction challenge to the jury instruction could have been made at trial, and the fact that law review articles that the defendant claims support his position were published after the defendant's conviction did not render his objection “unknowable" at the time of the conference. State v. Trammell, 2019 WI 59
, 387 Wis. 2d 156
, 928 N.W.2d 564
The court of appeals has no power to reach an unobjected-to jury instruction under sub. (3) because the court of appeals lacks a discretionary power of review. However, the supreme court possesses a discretionary power of review that the court may exercise when a matter is properly before the court. State v. Trammell, 2019 WI 59
, 387 Wis. 2d 156
, 928 N.W.2d 564
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.
(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.
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.
(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.
(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.
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.
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.
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.
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.
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.
Motions under this subsection may be heard as prescribed in s. 807.13
(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.
(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.
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.
(9) Involuntary dismissal of counterclaim, cross claim or 3rd-party claim.
This section applies to counterclaims, cross claims, and 3rd-party claims.
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); 2005 a. 253
; 2007 a. 97
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]
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]
Judicial Council Note, 1988: Sub. (5) (f) [created] allows motions after verdict to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
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
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), 96-2156
A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under s. 805.13 (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234
, 288 Wis. 2d 188
, 708 N.W.2d 13
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.
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.
The evidence has come to the moving party's notice after trial; and
The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and
The evidence is material and not cumulative; and
The new evidence would probably change the result.
(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.
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.
(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)
commences on the last day of the option period.
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
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]
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]
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
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
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
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
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
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).
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
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
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).
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).
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).
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).
A codefendant's testimony that the defendant was aware of at trial, but unable to present because the codefendant 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).
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.
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)
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.
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.
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
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
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]