Although often relegated until the end of the trial, crafting a verdict form is among the most important aspects of a trial. This month we include an overview of California’s three verdict formats, when to use each, and the appellate implications of your choice.
The three types used in California are general verdicts, special verdicts, and general verdicts with special interrogatories. (See C.C.P. §§ 624, 625; FRCP 49.) General verdicts require that jurors pronounce generally upon any or all of the issues, either in favor of the plaintiff or defendant. Special verdicts, by contrast, require jurors to find only facts, leaving the judgment to the Court. General verdicts with special interrogatories often appear identical to special interrogatories, yet they require the jury to make factual findings in addition to the ultimate legal conclusions.
Appellate Review Varies for Each Verdict Type
For general verdicts, the court implies findings in favor of the prevailing party on every fact essential to the claim or defense at issue. Conversely, special verdicts do not create any implied findings and increase the possibility of reversal due to a defect or inconsistency. General verdicts with special interrogatories, however, will not be reversed unless the special interrogatories and general verdict are completely irreconcilable.
Using appellate review to inform verdict form selection: The general verdict form is the hardest to challenge on appeal for evidentiary issues, but where one of the theories of liability presented at trial was legally erroneous and the court is unable to determine whether the jury relied on that legally incorrect theory in reaching its verdict, reversal is often warranted. Accordingly, if you believe your client may win if the jury does not have to agree on the same factual theory of the case to reach the ultimate result, the general verdict form may be a good choice.
Because of the appellate court’s refusal to imply findings to a special verdict, if your case involves a novel legal issue or the possibility of being affected by legal error, you may wish to request special interrogatories that specify the basis for the jury’s verdict and clarify how damages are apportioned among various theories of liability. This way, the reversal of one theory will not affect an unrelated portion of the judgment. Make sure, however, that if you use a special verdict, you include every element of the claim(s) or you risk inviting appellate error.
The trial judge has wide discretion to allow the case to proceed by special or general verdict, so the judge’s decision on that issue, without more, will rarely result reversal.
Regardless of the verdict form, keep in mind this fundamental appellate consideration: avoid waiving your potential challenges to the verdict form by timely preserving objections to the form and jury instructions associated with it (ideally before the jury is discharged or if impossible, in a new trial motion).