Fischer v. Fischer

• Decision Date: 07 June 1966
• Citation: 142 N.W.2d 857,31 Wis.2d 293
• Parties: Genevieve FISCHER, Appellant, v. Erick FISCHER et al., Respondents.
• Court: Wisconsin Supreme Court

Page 857

142 N.W.2d 857

31 Wis.2d 293

Genevieve FISCHER, Appellant, v. Erick FISCHER et al., Respondents.

Supreme Court of Wisconsin.

June 7, 1966.

Rehearing Denied July 27, 1966.

Kaftan, Kaftan & Kaftan, Green Bay, for appellant.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for respondents Fischer and Hartford.

Cornelisen, Denissen, Kranzush & Kuehn, Green Bay, for respondents Bopray and Hardware Mutual.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for respondents Zweig and State Farm Mutual.

HEFFERNAN, Justice.

Did the court err in refusing to let plaintiff's counsel

suggest to jury that $30,000 be awarded for

personal injuries?

The statement in controversy was uttered in the course of the plaintiff's argument to the jury. The reporter did not take notes until an objection was made, and therefore the initial statement objected to is not of record. However, it is clearly apparent from the record that the plaintiff suggested that the jury might appropriately award the plaintiff the sum of $30,000 for her past and future personal injuries. Plaintiff's attorney then, in apparent explanation of what had been objected to, repeated his suggestion of an award of $30,000, and this language was again objected to, and the court sustained the objection, using the following language:

'COURT: Objection sustained. Don't comment any more figures, Mr. Kaftan.

MR. KAFTAN: Pardon?

COURT: I said please refrain from commenting any further on the figures.'

Subsequently, during the course of oral argument, the following statement was made:

'MR. KAFTAN: I have commented as to the figure, ladies and gentlemen, the figure that I recommended to you.'

At this point counsel for the three defendants joined in an objection to this statement and moved for a mistrial. The court denied the motion, stating:

'COURT: * * * Mr. Kaftan, please refrain. Fot the record, I state at this time, please pass on to some other phase. You have made your statement. I don't want you to reiterate or repeat it.

MR. KAFTAN: The only statement that I want to make * * *

COURT: I don't want any colloquy from counsel. The court has admonished you, period.'

We conclude that the court erred in refusing to allow counsel's comments to the jury. The learned trial judge took the position that the $30,000 figure should not be mentioned because he concluded that a verdict in that amount could not be sustained. In the trial judge's opinion he indicated that he felt that figure was unreasonable in the absence of any testimony related to permanent scarring to a reasonable medical certainty or probability. This court, however, has heretofore concluded that the trial judge's conception of what is reasonable should not be the test when an award figure is suggested to the jury. In Affett v. Milwaukee & S.T. Corp. (1960), 11 Wis.2d 604, 614, 106 N.W.2d 274, 86 A.L.R.2d 227, we held:

'Counsel for both the plaintiff and the defendant may make an argumentative suggestion in summation from the evidence of a lump sum dollar amount for pain and suffering which they believe the evidence will fairly and reasonably support.' (Emphasis supplied)

We subsequently, in Walker v. Baker (1961), 13 Wis.2d 637, 651, 109 N.W.2d 499, have followed the 'lump-sum' rule approved in Affett. Later, in Halsted v. Kosnar (1963), 18 Wis.2d 348, 352, 118 N.W.2d 864, we emphasized that:

'The test as to what is permissible by way of counsel's argument in presenting his lump sum figure for pain and suffering must be a subjective one. If the attorney argues to the jury that a certain figure is sustained by the evidence, neither his good faith nor his ethics should be subjected to post-trial challenge. We reject the learned trial judge's suggestion that the request for a figure larger or lower than the court would later sustain constitutes a violation of the attorney's oath. The measurement of pain and suffering is so patently thorny that the yardstick used by counsel should not be condemned merely because the court considers it too long or too short.'

We also pointed out in Halsted, supra, page 352, 118 N.W.2d page 866, that, under some circumstances, the plaintiff lawyers suggest absurdly large or 'boxcar' damages, while some defense attorneys suggest ludicrously inadequate compensation for an injured person. We therein expressed our faith in the jury system and the ability of jurors to discern absurdities when they are presented to them. We stated that:

'* * * excessive demands, either too high or too low, will normally backfire. In those instances in which jurors reach a conclusion which is beyond the range of reasonableness, the law affords relief--both in the trial court and on appeal.'

We reiterate our faith in the jury's ability to discern or reject extremes in the appraisal of damages, and we conclude that if trial counsel are permitted to express their own subjective advocate's appraisal of damages that demands completely unsupported by evidence will be rejected by the jury. The probability of a 'backfire' in the event of an unreasonable demand is likely to make this phase of trial advocacy self policing.

We have not overlooked the fact that the trial judge in concluding that the $30,000 figure was beyond reason (though this is not the test of the right to argue the figure) stated that it did not appear from the record that there was medical testimony that the scars would be permanent to a reasonable medical certainty or probability. The testimony, however, of Doctor Hoops made it quite clear that although improvement could be expected that some scarring would be of a permanent nature. He stated, 'I can't eliminate the scars. There is no way of doing that * * *' As we stated in Casimere v. Herman (1965), 28 Wis.2d 437, 445, 137 N.W.2d 73, though the test is 'medical certainty,' no particular words of art are necessary to show that the physician's prediction is more than a mere possibility or conjecture. In the case before us, Doctor Hoops was speaking as a qualified expert plastic surgeon, and it would appear that his statement quoted above might well have been the basis upon which a jury could reasonably determine that the plaintiff's scarring in some degree would be permanent. The record indicates the trial judge quite vehemently put an end to counsel's attempts to state his lump-sum figure. He used the language:

'You have made your statement. I don't want you to reiterate or repeat it.'

Later, the court said:

'I don't want any colloquy from counsel. The court has admonished you, period.'

By this language, the jury may have been made aware of the trial judge's conviction that $30,000 was an unreasonably high figure. We conclude that he

erred in suppressing this portion of counsel's oral

argument. Did the court err in directing that

notes taken by a juror be turned over to

the court?

Plaintiff's counsel, during the course of oral argument, placed certain computations in regard to medical expenses on the courtroom blackboard. It came to the attention of the court, through opposing counsel, that one of the jurors, during the noon recess, made copies of these figures. Opposing counsel moved for a mistrial. The motion was denied, but upon the resumption of the trial, the judge made inquiries to determine which juror made the notes. The following dialogue took place:

'COURT: Would you please surrender that to the court? Will you take it, Mr. Bailiff?

MRS. VALEN: I didn't know I couldn't.

COURT: I want you to understand that when this case is decided, it is upon the evidence produced in court and that black board is not part of the evidence and will not be considered. The court will tear it up. You will not consider anything that you wrote down.

JURY: No.

COURT: Then, that's out, I mean.

JURY: All right.'

The judge then tore up the slip and, in the presence of the jury, disposed of it in a wastebasket.

The affidavit of plaintiff's counsel, Fred F. Kaftan, is made a part of the record and purports to set forth the matters that were on the blackboard. These figures, affiant states, are supported by the testimony in the record, and a perusal of the record indicates this to be true, although, admittedly, some of the figures involve future expenses and, therefore, to that extent, are speculative.

It is within the discretion of the trial judge to determine whether or not jurors may take notes. 154 A.L.R. 878, 880. The general rule nationally is that, it is entirely proper for jurors to make notes. 53 Am.Jur., Jury, p. 623, sec. 851, and 154 A.L.R. 878, Anno.--Taking of Notes by Jury. This general rule is, of course, circumscribed by the judge in the exercise of discretion. This court takes the position, however, that jurors should not in the ordinary case be permitted to take notes. While the taking of notes is, for a person trained in that technique, an essential part of the process by which facts are assimilated; in the hands of one who is not skilled in note taking, the practice is likely to be an impediment. It is likely to interfere with his perception and appreciation of what is going on in the courtroom. A skilled note taker or one who is able to record the proceedings in shorthand would have a marked advantage in influencing other jurors. It is therefore submitted that the sound discretion of the trial judge will almost universally prohibit the taking of notes. Nevertheless, this court recognizes that trials occasionally are of protracted length and are replete with facts, figures, and computations that serve only to confuse a jury unless the figures are accurately before the jury at the time of deliberation. If, in the discretion of the court, it appears necessary to prevent jury confusion, we see nothing wrong with the practice of having counsel prepare tabulations and computations of matters in evidence. In the event facts and figures so submitted are not stipulated the trial judge should, by appropriate instruction, make that fact clear to the jury....