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Verdict Forms: Tips for Trial Counsel

The instructions to the jury are a framework for the verdict form. The verdict form, in turn, formalizes the jury’s decisions on the case, telling us how it will answer the claims and defenses. Its structure and language could influence the jury’s ultimate answers. It may also control what issues may be raised on appeal. Needless to say, it should be carefully crafted, ideally in consultation with appellate counsel.

It goes without saying that the verdict form should include every claim and every defense. Otherwise, the omitted claim or defense may be deemed waived. See Birmingham Fire Ins. Co. of Penn. v. Politis & Perlman Int’l Realty, 52 Fed. Appx. 485 (11th Cir. 2002) (unpublished opinion) (verdict form given to jury only presented issue of intentional fraud, not the negligent misrepresentation claim that plaintiff also alleged, and abandonment of claim became dispositive in later coverage suit).

The most difficult tactical decision, from a trial and appellate standpoint, is how detailed the verdict form should be. A detailed verdict form has its pros and cons, and there is no right answer for all cases.

In considering this issue you should always take into account the two-issue rule and how it applies in your jurisdiction. In Florida, under this rule, appellate courts will not grant a new trial if the jury rendered a general verdict and there is no error on at least one of the theories on which the jury is instructed. See Colonial Stores, Inc. v. Scarborough, 355 So. 2d 1181 (Fla. 1977).

The rule is not the same in all forums. For example, in federal court, the Eleventh Circuit has held that the defendant is entitled to a new trial if the jury renders a general verdict that could be based on several possible grounds, one of which cannot support the verdict. See Grant v. Preferred Research, 885 F.2d 795 (11th Cir. 1989). On the other hand, that court also held that a defendant only is entitled to judgment as a matter of law if each possible ground for the general verdict is shown to be legally insufficient. Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001).

Another difficult tactical decision arises when the verdict is published. If there are defects or inconsistencies in the jury’s findings when the verdict is actually rendered, [(i.e., a particular question is not answered or not answered clearly, calculations do not add up or do not make sense (e.g., future and net present value damages are the same number), or findings are legally inconsistent)], you must consider whether to object and raise your concern before the jury is discharged. This is a tough judgment call that unfortunately must be made instantly.

On the one hand, failure to raise an inconsistency in the jury’s verdict usually will waive any challenge on appeal. See Pierce v. Southern Pacific Transp. Co., 823 F.2d 1366, 1370 (9th Cir. 1987); Coralluzzo v. Education Mgmt. Corp., 86 F.3d 185, 186 (11th Cir. 1996) (“This Court has repeatedly held that all challenges to the inconsistency of special verdicts must be raised before the jury is excused”); Cobut cf. Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 851 (10th Cir. 2000) (“when the verdicts are special verdicts a party is not required to object to the inconsistency before the jury is discharged in order to preserve that issue for a subsequent motion before the district court”); U.S. E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997) (party waived contention that jury verdict was inconsistent by failing to move post-verdict for new trial or for further jury deliberation). As the court explained in Progressive Select Ins. Co., Inc. v. Lorenzo, 49 So. 3d 272 (Fla. 4th DCA 2010):

[l]ooking back over almost eighty years of Florida case law reveals a consistent goal of ensuring that ‘the intent of the jury in rendering the verdict may fairly and with certainty be gleaned from the words used....’ To that end, Florida courts have required any objection to the form of the verdict to be made before the discharge of the jury to allow correction of a correctable error. When that verdict is rendered and ‘no objection appears to have been made to the form of verdict when the same was presented to the court, the form thereof was waived.’ (Internal citations omitted).

On the other hand, if you do raise the inconsistency before the jury is discharged, the jury obviously may resolve it against you. Then, you will have not only lost at trial, you will have lost any argument of an inconsistency for appeal. That is, unless you can tie the original inconsistency into some defect in the instructions or verdict form and argue that a mistrial was required. The right answer may never be known, and it usually will not be known at the time the decision has to be made at trial.

Lastly, you may want to get on the record the length of the jury's deliberations. You certainly want to get on the record any questions that the jury asks about the verdict form and the jury instructions (or otherwise) and be sure that any notes from the jury are placed in the record.

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