¶ 25. (concurring).
I agree with the lead opinion in this case, and as it particularly relates to this concurrence, Part 2.1 write separately because I am convinced that it is time for the supreme court to reevaluate the use of the phrase *141"reasonable certainty" as it exists in our standard instruction to the jury relating to the burden of proof for ordinary negligence, Wis JI — Civil 200. Wisconsin law requires that the plaintiff prove negligence by a preponderance of the evidence. See Mock v. Czemierys, 113 Wis. 2d 207, 211, 336 N.W.2d 188 (Ct. App. 1983). I am satisfied that using the term "reasonable certainty" in the instruction creates too high of a risk that jurors will hold a plaintiff to a higher burden of proof than intended.
¶ 26. Wisconsin JI—Civil 200 states, in relevant part, as follows:
The burden of proof, other than on question -(e.g., comparison of negligence) and the damage questions in the verdict, rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.
By the greater weight of the evidence is meant evidence which when weighed against evidence opposed to it has more convincing power. Credible evidence is evidence which ... is worthy of your belief. (Emphasis added.)
¶ 27. The term "reasonable certainty" is not defined for jurors. Jurors must therefore draw their own conclusions about what the term means. However, while jurors are left to their own devices to ascertain the meaning of the term, we may assume, for purposes of Wisconsin law, that jurors will draw the same meaning of a word or term which is defined in a recognized dictionary. Cf. Erdman v. Jovoco, Inc., 173 Wis. 2d 273, 279, 496 N.W.2d 183 (Ct. App. 1992) (stating that reasonable persons might look to a dictionary to define words). The Random House Dictionary of the English *142Language, Unabridged, defines the word "certainty" as: "1. the state of being certain. 2. something certain; an assured fact. 3. for or of a certainty, certainly; without a doubt: I suspect it, but I don't know it for a certainty." The Random House Dictionary of the English Language, Unabridged 339 (2d ed. 1987).
¶ 28. But we do not have to rely on assumptions and conjecture to come to the conclusion that ordinary persons think of "certainty" as being "free of doubt." We have empirical testing supporting it. A linguistic study was published in the New England Journal of Medicine indicating that the use of the word "certainty" produces in the hearer an expectation of probability of 94% or more. See Augustine Kong, et al., How Medical Professionals Evaluate Expressions of Probability, New Eng. J. Med. 740, 743 (1986). The study set out to quantify certain qualitative expressions. See id. at 740. Thus, while the study was of qualitative expressions, the experiment was quantitative. See id. The subjects were those who were either physicians or persons studying medical subjects and who were using interactive computer programs. See id. at 741. The subjects were asked to focus on twelve probability expressions: "certain," "almost certain," "very likely," "probable," "likely," "frequent," "not reasonable," "possible," "unlikely," "improbable," "almost never" and "never." See id. The subject's belief in the probability of a fact being true moved along a scale of 0% to 100% depending on the terms used. See id. Sampling error was taken into account and statistically enumerated and accounted for. See id. at 742.
¶ 29. The outcome, in pertinent part, was as follows: The word "certain" had a probability rating of 99%. See id. at 743. When the adverb "almost" was added to the adjective "certain," the median moved *143from 99% to 94%. See id. The data thus points to the unescapable conclusion that words matter and a person being asked to find something to a "certainty" thinks of the task as being asked to find something to a 99% degree of probability or higher. This empirical study was published in one of the most recognized avenues for peer review in the United States. There is a strong tradition of editorial overview. Hence, the study's empirical reliability is enhanced.
¶ 30. While it is true that the study did not measure the term "reasonable certainty," I am satisfied that it makes no difference. I do not believe that placing the adverb "reasonable" before the adjective "certainty" allows the hearer to qualify or downgrade the near absolute quality of the word "certain." The word "reasonable" is defined by THE RANDOM HOUSE DICTIONARY as "agreeable to reason or sound judgment; logical." See The Random House Dictionary at 1608. That jurors are asked to determine that a fact is "logically certain" is not the same as being asked to downgrade the probability of a fact being true. Rather, the jurors are simply being reminded that the decision about certainty must be one that is rationally made. I am convinced that the term "certainty" and the term "reasonable certainty" ask the jurors the same question.
¶ 31. Those who defend the use of "reasonable certainty" in the standard instruction most likely have no disagreement with this empirical data. They would probably agree that "reasonable certainty" means a probability of at least 94% or more. But they would also likely contend that it does no injustice to a plaintiff s burden to prove the case to a preponderance of the evidence. These defenders would probably argue that jurors are not told to hold the plaintiff to a burden of *144convincing them with evidence that is 94% certain or more. Rather, the jurors are only being asked to be at least 94% certain about which side's "story", has the greater weight.
¶ 32. The defenders would no doubt point out that there is a difference between preponderance of evidence and burden of proof. They would probably then cite Eichman v. Buchheit, 128 Wis. 385, 388 (1906), for the following proposition:
Preponderance of evidence and burden of proof are not the same thing, although they run into each other. By preponderance of evidence is meant the evidence which possesses greater weight or convincing power; by burden of proof is meant the duty resting on the party having the affirmative of the issue to satisfy or convince the minds of the jury, by the preponderance of the evidence, of the truth of his contention.
¶ 33. The defenders would most likely point to the language of the instruction as evidence that the jurors are told about the difference between deciding burden of proof and preponderance of the evidence. For instance, they would likely argue that the instruction does not say that preponderance of the evidence is equated with "reasonable certainty." Instead, the jurors are informed that the burden is to "satisfy you to a reasonable certainty by the greater weight of the credible evidence that yes should be the answer." Wis JI — Civil 200. The instruction goes on to say that, by the greater weight of the evidence, is meant evidence which when "weighed against evidence opposed to it has more convincing power." Id. The defenders would thus conclude that the jurors are informed how preponderance of the evidence is the same as the greater weight of the evidence.
*145¶ 34. The defenders would then say that "reasonable certainty" is a necessary component of the instruction because that term addresses the burden to satisfy the jurors. The instruction tells the jury to be reasonably certain about whether the plaintiff has met his or her affirmative duty to convince the jury of the weight of the evidence. See id. These defenders would most likely say that the supreme court got it right back in 1894 when the court rhetorically asked: "When the mind is satisfied or convinced of the existence of a fact, is the mind reasonably certain of the fact?" Pelitier v. Chicago, St. Paul, Minneapolis & Omaha Railroad Co., 88 Wis. 521, 529, 60 N.W. 250 (1894).
¶ 35. The defenders would thus conclude that the jurors are accurately informed about two different components of the law: burden of proof and preponderance of the evidence. In other words, the defenders would say that all the jurors are being asked to do is to be certain in their own minds (the burden of proving) that one side's evidence has greater weight than the other side's (the preponderance of the evidence).
¶ 36. The Wisconsin Civil Jury Instructions Committee of 1996 appeared to be among the defenders. When it was requested that the Committee delete the term "reasonable certainty," the Committee considered the request and declined to do so. See Comment, Wis JI—Civil 200, 1996, Regents, Univ. of Wisconsin. The Committee opined as follows: "The Committee believes that the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions." Id.
¶ 37. I do not agree with the statement that the term is "firmly established" in our case law. And while the language in the instruction may accurately state *146how those well versed in the law might understand the appropriate meaning of the term "reasonable certainty," the instruction fails miserably in its attempt to explain to the jurors how to use the term "reasonable certainty." As a result, I am convinced that the language in the instruction runs a real risk of the jurors applying the term "reasonable certainty" to the quality of the evidence rather than applying the term to their state of mind about which side is the more convincing. See Alan E. Gesler, The Burden of Proof: How Certain is Reasonable, 14 WATL VERDICT 12 (Winter 1991).
¶ 38. First, I will respond to the Wisconsin Civil Jury Instructions Committee's assertion that the term "reasonable certainty" has been "firmly established" in our case law. I am not so convinced. In 1894, the supreme court wrote:
The expression "reasonable certainty" is not strictly accurate as a definition of the weight of evidence required, and may mean no more than that quantum of evidence which satisfies or convinces the mind of a reasonable person of the truth of a particular claim or contention. Possibly, however, it may mean more, and so be misleading. We think it better, in such cases, to stop with stating the usual rule that the party having the burden of proof must establish his case by a preponderance or the greatest weight of evidence.
Allen v. Murray, 87 Wis. 41, 46, 57 N.W. 979 (1894). And in Pelitier, the court was also less than enthusiastic about the trial court's use of the term "reasonable certainty" when describing the plaintiffs burden of proof. Although the court affirmed the trial court's use of the term, even a casual reading of the decision shows that it was done with some misgiving. See Pelitier, 88 Wis. at 528.
*147¶ 39. Fast forward to Sullivan v. Minneapolis, St. Paul & Sault Sainte Marie Railway Co., 167 Wis. 518, 167 N.W. 311 (1918). There, the court rejected the argument that a jury instruction in a negligence case must contain the phrase "reasonable certainty" to describe the burden of proof. See id. at 527. The court called the term "surplusage" which "adds nothing." See id.
¶ 40. The first unequivocal endorsement of the term was in Kausch v. Chicago & Milwaukee Electric Railway Co., 176 Wis. 21, 26, 186 N.W.2d 257 (1922). But in that case no instruction was given to the jury on either the definition of burden of proof or preponderance of the evidence. See id. Rather, the trial judge instructed the jurors that they must be "reasonably certain" of their answers. See id. What that instruction did, therefore, was clearly and accurately speak to the jurors' state of mind. This is a far cry from the language now used in the standard instruction.
¶ 41. It was not until Victorson v. Milwaukee & Suburban Transport Corp., 70 Wis. 2d 336, 356-57, 234 N.W.2d 332 (1975), that the court gave its first unequivocal imprimatur to the term as used in the standard jury instruction. But the reason given for this affirmation was founded upon the holding in Kausch. See Victorson, 70 Wis. 2d at 356-57. Again, however, the instruction given in Kausch clearly told the jurors that they had to be reasonably certain of their answers. See Kausch, 176 Wis. at 26. In other words, jurors were informed that the term went to their own state of mind. No attempt was made by the Victorson court to explain how the standard jury instruction told jurors the same thing as was told to the jurors in Kausch.
¶ 42. I am reminded of a quote made by the great Oliver Wendell Holmes:
*148It is so revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
Oliver Wendell Holmes, The Path of Law, 10 Harv. L. Rev. 457, 469 (1897).
¶ 43. It is my view that the law is not "firmly established" and that continued use of the term "reasonable certainty" is based, in part, upon blind allegiance to what, on closer inspection, reveals a checkered past. I agree with Alan Gesler's conclusion that the burden of proof language was created by accident rather than analysis. See Gesler, supra, at 13.
¶ 44. I will now discuss the Wisconsin Civil Jury Instructions Committee's statement that the instruction accurately reflects the degree of certitude jurors must reach in answering verdict questions. First, the statement does not go far enough. An instruction is not a good one simply because it accurately states the law. It must also be drafted in such a manner that jurors understand the language contained within it. The immediate problem with the instruction is that it makes no attempt to explain to the jurors how there are two separate pieces of information being presented to them: (1) that the jurors must be convinced in their own mind; and (2) that they must be convinced that one side's evidence is probably more true than the other side's. There is nothing in the instruction that says the weighing process means the jurors are asked to determine whether the plaintiffs evidence is more than likely truer than the defendant's. There is, in fact, no explanation of how to "weigh the evidence." This void creates the very real risk that the jurors will use the *149"reasonable certainty" language as the method by which the two sides are weighed. The jurors can easily understand the instruction to say that unless the plaintiffs evidence is true to a "reasonable certainty" it may not be considered weighty enough for the plaintiff to prevail.
¶ 45. I will paraphrase the instruction based upon the dictionary definitions and empirical data I have set forth above. I am convinced that reasonable jurors could understand the instruction to say as follows: "Plaintiffs evidence is weighed against the defendant's and the job of deciding whose evidence has more weight is yours. But before you may find that the plaintiffs evidence has more weight, you must first be satisfied that the plaintiff has provided you with evidence that is absolutely true or nearly absolutely true." I would be the first to say that not all jurors would glean this meaning from the instruction. But I argue that some would. The job of an instruction is to not only accurately state the law but explain what the law means to persons who usually do not possess law degrees. Here, the instruction fails in its duty to teach.
¶ 46. I suggest an instruction that conveys a plain message to the jurors about what their job is. I would say:
Your job is to determine whether the plaintiff has submitted evidence which has greater weight than the defendant's. It is the plaintiffs burden to satisfy you, in your own mind, that (his, her or its) evidence is more convincing to you than the defendant's. The plaintiff does not have to convince you that the evidence is absolutely true or even almost true. In other words, the plaintiff need not exclude the probability that the contrary conclusion may be true. Rather, the plaintiff has to convince you that *150(his, her or its) evidence outweighs the other as to the probabilities. If you are satisfied that the evidence submitted by the plaintiff is more likely true than not true, you may find for the plaintiff. If, however, you are convinced that the plaintiffs evidence is more likely not true, than you may find that the plaintiff has not met (his, her or its) burden of convincing you.
¶ 47. I believe that the proposed instruction comports with Wisconsin law. It tells the jury that it is the plaintiff who has an affirmative duty. See Eichman, 128 Wis. at 388. It tells the jurors what this affirmative duty is: to convince them. See id. It tells the jurors what it is that the plaintiff must convince them of: that the plaintiffs evidence is more probably true than the defendant's. See Grotjan v. Rice, 124 Wis. 253, 258-59, 102 N.W. 551 (1905). Finally, it tells the jurors that if they are not convinced that the plaintiffs evidence is more likely true than not true, then the weight of the plaintiffs evidence is not sufficient.
¶ 48. In the final analysis, this concurrence is a call to change the paradigm about how we write our instructions. Much has been written about data confirming that jurors are often lost in a sea of legalisms. What we should be doing, as we enter the twenty-first century, is to better teach jurors what the law means and how they should apply it. We should not be content with giving an "accurate statement of the law." The various jury instructions committees in Wisconsin have done an exemplary job in this regard for the most part. However, the standard instruction on burden of proof stands as a poster child for those instructions that need to be more juror friendly. I fear that, while we may never know for sure whether a jury made its decision based upon an inaccurate understanding of its *151responsibility, the risk that this has occurred is real. We should change the wording of the instruction to insure that jurors are really acting in accordance with the law given to them.