This article originally appeared in The Recorder on September 30, 2014.
Preparing a verdict form is kind of like going to the chiropractor. It’s probably going to be fine and may even help things, but if you get something twisted the wrong way, you could end up in trouble.
Courts in California and the Ninth Circuit accept three types of verdict forms in jury trials. A “general verdict” form asks the jury to determine only ultimate liability and damages — nothing more than ‘is the defendant liable and how much should he pay?’ A “special verdict” form, in contrast, asks the jury to determine everything but ultimate liability — ‘did the defendant sign the contract?’ works, but ‘is the defendant liable for breach of contract?’ doesn’t. Finally, a “general verdict with special interrogatories” (or “special questions” in modern usage) asks both types of questions — ‘did the defendant sign the contract and did he then breach it?’
Trial lawyers put lots of energy into their jury presentations, and many skilled advocates remember to focus carefully on the jury instructions. But the verdict form, the one paper every jury takes with it into the decision room, is surprisingly often an afterthought.
That’s a mistake. At trial, the wording and structure of the verdict form can help lay out a claim or affirmative defense to the jury one last time. Even more importantly, on appeal, the verdict form can play a particularly critical role, because depending on the type of verdict form used, the chances of reversal from errors or inconsistencies can change dramatically.
Easiest to Defend: The General Verdict Form
A general verdict form is the easiest to prepare and the hardest to challenge on appeal. The form asks only the ultimate questions: did the defendant commit the tort, did he establish his affirmative defense, how much does he owe? For that reason, the appellate court will look to whether substantial evidence exists in the record to support any legal or factual theory that can carry the judgment. Zhang v. American Gem Seafoods, 339 F.3d 1020, 1031 (9th Cir. 2003); Gillespie v. Rawlings, 317 P.2d 601, 607 (Cal. 1957).
That makes general verdict forms pretty difficult to challenge on appeal. However, problems still arise. For example, if an appellate court determines that one of the theories of liability presented to the jury at trial was erroneous as a matter of law, the court may be unable to determine whether the jury relied on the legally incorrect theory in reaching its verdict. If that happens, the appellate court could reverse. United States v. Williams, 441 F.3d 716, 724 (9th Cir. 2006); DeTomaso v. Pan Am. World Airways, Inc., 733 P.2d 614, 624 (Cal. 1987). But this applies only to situations in which the theory presented to the jury is legally erroneous, because insufficiency of the evidence for one of multiple theories of liability will not lead to reversal. See Griffin v. United States, 502 U.S. 46, 59 (1991).
Thus, a general verdict form is the way to go if you think you’re going to win at trial, or that you’re more likely to win if the jurors don’t have to agree on the same theory of the case to come to an ultimate result.
Easiest to Challenge: The Special Verdict Form
If you’re a little less confident in the way trial is going, or your opponent has a complex, multipronged factors test to meet while your defense is straightforward, it might make more sense to propose a special verdict form. A special verdict form asks the jury to determine just the discrete factual elements necessary for each of the plaintiff’s legal claims and defendant’s affirmative defenses. The jury doesn’t issue any ultimate verdict, though; the task of putting the elements together and entering a final verdict on that basis lies with the court. Thus, a special verdict form in a defamation action might ask the jury to decide whether the defendant made a false statement, whether he published it, whether he did so with malice, and whether the statement caused harm, but the question “is the defendant liable to the plaintiff for the tort of defamation” remains one for the court alone based on the jury’s factual findings.
On appeal, a special verdict narrows the range of factual findings the appellate court will consider in reviewing the judgment for substantial evidence, making inconsistencies or contradictions in the form easier to challenge on appeal. That’s because, in contrast to a general verdict, in a special verdict setting, courts will not imply any findings in favor of the verdict. Rather, the court will evaluate the record only to find whether it contains substantial evidence to support the findings the jury actually made.
The problem with a special verdict form comes up if there’s any friction between the findings and the result sought. If the jury fails to decide a necessary element of a cause of action, for example, or reaches two factual conclusions at odds with one another, the entire verdict may be tossed out. “The requirement that the jury must resolve every controverted issue is one of the recognized pitfalls of special verdicts. The possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict . . . .” Vanderpol v. Starr, 194 Cal. App. 4th 385, 396 (2011). Thus, attorneys crafting special verdict forms should take care to make sure the forms track the jury instructions, include every element in the claims and defenses, and clearly delineate what findings could conflict with others so the jury knows exactly what it’s doing.
Hybrid Option: The General Verdict Form with Special Interrogatories
The third type of verdict form, a “general verdict form with special interrogatories,” is a hybrid of the other two. This type of form requires the jury determine both the discrete factual elements that make up parties’ claims and defenses, as well as the final win-lose verdict on each. That allows the attorneys to use a verdict form to walk the jury through all the pieces of legally complex trials, and still make sure the jurors have an opportunity to decide the ultimate result.
A general verdict with special interrogatories also falls in between the other two types of verdict forms in terms of appellate review — though California and Ninth Circuit courts approach it slightly differently. In California, appellate courts considering this type of verdict form will take all reasonable inferences in favor of the general verdict the jury issues, and will only reverse if the special interrogatories and the general verdict are so “totally irreconcilable” that the special interrogatories, on their own, would necessarily lead to the opposite result as the general verdict. Lowen v. Finnila, 102 P.2d 520, 522 (Cal. 1940). If they are irreconcilable, however, Code of Civil Procedure section 625 commands the interrogatory responses control. In the Ninth Circuit, on the other hand, the ultimate decision is highly discretionary with the district judge: Federal Rule of Civil Procedure 49 establishes that where a general verdict and special interrogatories are in tension, the trial court may either enter judgment in line with the result compelled by the interrogatories (ignoring the general verdict), direct the jury to conduct further deliberations, or order a new trial. Thus, attorneys preparing these hybrid verdict forms should still be as careful as when they’re preparing special verdict forms, even though they’ll have a bit more leeway on appeal.
But Watch Out
Like jury instructions, appellate arguments based on verdict forms are vulnerable to invited error and forfeiture contentions. To avoid an invited error problem, object on the record to any provisions that you find problematic in an opponent’s proposed verdict form or one the court issues, and if you don’t file the first verdict form proposal (which you should if you can), file your own carefully prepared alternative verdict form. Similarly, to avoid a forfeiture problem after the jury issues a verdict, raise any inconsistencies or incoherence you identify in the jury’s responses on the verdict form before the jury is discharged, if you can, so the court can order the jury to clarify its responses. If you don’t recognize the inconsistencies until after the jury’s been discharged, raise the form’s problems in a timely motion for new trial. While a purely legal error is almost never forfeited (in a verdict form or otherwise) on appeal, arguments based on facts or the wording of the form can be lost if not effectively preserved in the trial court.
Some of these appellate nuances can get tricky, so we generally recommend that litigators with legally complex or high-stakes trials think about verdict forms well in advance or consult an appellate specialist. Just like a good chiropractor, though, you should make sure that whatever you decide to do with your verdict form, you do it carefully.
Ben Feuer is a civil appellate attorney with the California Appellate Law Group* and the chair of the Appellate Section of the Bar Association of San Francisco’s Barristers Club. He’s a regular columnist for the Recorder and can be reached at firstname.lastname@example.org.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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