Rule 49: Special Verdicts and InterrogatoriesAuthor(s): William GibbonsSource: Litigation, Vol. 7, No. 3, USING AND ABUSING THE FEDERAL RULES (Spring 1981), pp.34-35, 56Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758626 .

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Rule49:

Special \erdicts and Interrogatories

by William Gibbons

Special verdicts and general verdicts accompanied by special interrogatories are important alternatives to the

general verdict. They are also poorly understood and seldom used.

Judge Frank once wrote that "[t]he general verdict is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi." Skid more v. Baltimore and O.R. Co., 167 F.2d 54, 60 (2d Cir.), cert, denied, 335 U.S. 816 (1948). He intended his statement as a criticism. But many judges and lawyers praise the general verdict for the same reason. They are often afraid to explore the bases for a jury verdict.

Rule 49 offers the court two alternatives to the general verdict. Rule 49(a) provides for a special verdict, precluding the use of a general verdict. Rule 49(b) allows

special interrogatories, necessarily used in conjunction with a general verdict. Although courts frequently use the terms special verdict and special interrogatories in?

terchangeably, they are distinct. If a general verdict is not used, the special "questions" constitute a special ver? dict under Rule 49(a). If a general verdict is used, then the special "questions" are special interrogatories pur? suant to Rule 49(b).

Rule 49(a) permits the court to "require a jury to return only a special verdict in the form of a special writ? ten finding upon each issue of fact." The court may pre? sent factual issues to the jury in three ways:

? written questions susceptible of categorical or other brief answer;

? written forms of the several special findings that

might properly be made under the pleadings and

evidence; and ? any other appropriate method of submitting the is?

sues and requiring written findings. The court must instruct the jury as necessary to resolve

the factual issues. Once the jury resolves them, the court

applies the law to the factual findings and enters judg? ment. The jury needs instructions only on those legal principles it needs to answer the factual issues presented

Mr. Gibbons is a partner in the Chicago and Los Angeles law firm of Hedlund, Hunter & Lynch.

to it, not on the legal issues the court will use in entering a judgment.

For example, if a special verdict is used in a personal in?

jury action, the jury should be instructed that each of the

questions must be decided by a preponderance of the evi? dence. The court should also explain what constitutes a

preponderance of the evidence. But while the jury may be asked to determine whether the plaintiff was negligent, it need not be instructed that contributory negligence bars

any recovery by the plaintiff. Special verdicts should address each critical factual

issue in a case. The rule provides that each party waive his right to a jury trial on any issue of fact omitted without objection. The court may make a finding, or be deemed to have made a finding, in accord with the jury's judgment on the submitted special verdict. A defeated

litigant cannot argue that the failure to submit a factual issue requires a new trial.

Good Faith

Special verdicts may include mixed questions of fact and law. See McDonnell v. Timmerman, 269 F.2d 54

(8th Cir. 1959). The court must give the jury instructions

adequate to answer each of the mixed questions of fact and law. For example, in an action alleging a violation of the Automobile Dealers' Day in Court Act, the following special verdict question is appropriate: "Did the

manufacturer's actions toward the dealer result from a lack of good faith in violation of the Dealers' Day in Court Act?" The court would instruct the jury on the

meaning of "good faith" under the Dealers' Act. The special verdict is not intended to test the con?

sistency of the jury's verdict. Thus, while each fact issue should be submitted to the jury, it should only be sub?

mitted once. The role of the trial judge in entering judgment after

return of the special verdict is to apply the law to the facts determined by the jury. The trial judge must at?

tempt to reconcile ambiguities in the special verdict. Kirkendoll v. Neustrom, 379 F.2d 694, 699 (10th Cir.

1967); Martin v. Gulf States Utilities Co., 344 F.2d 34, 37 (5th Cir. 1965).

The trial judge cannot, however, resubmit the special

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verdict to the jury hoping that the jury will change its answers if the judge is unable to reconcile inconsistent

special verdicts. The only alternative is a new trial on all issues affected by the irreconcilable inconsistency.

Slaughter v. Philadelphia National Bank, 290 F.

Supp. 234 (E.D. Pa. 1968), rev'd on other grounds, 417 F.2d 21 (3d Cir. 1969), illustrates the problem. A jury returned a verdict in favor of defendant and third-party plaintiff Philadelphia National Bank (Philadelphia) and against third-party defendant Peoples National Bank

(Peoples). The court instructed the jury that Peoples could be found liable only if Peoples was found to be the

agent of Philadelphia. The jury held that no principal agent relationship existed. The jury nevertheless found

Peoples liable in damages to Philadelphia. The court re?

jected the suggestion to reconcile the inconsistency be? cause it was the jury's function to decide the factual issues.

In certain cases, special verdicts use scarce judicial time in the most efficient way. In a case involving multiple claims, the use of a special verdict may localize errors so that a case need not be remanded for a failure of proof. For example, in Albergo v. Reading Co., 372 F.2d 83 (3d Cir. 1966), cert, denied, 386 U.S. 983 (1967), the court of appeals reversed a lower court judgment for the plain? tiff, entered pursuant to a general verdict. The court of

appeals held that there was insufficient evidence to sub? mit plaintiff's first claim to the jury, and that the trial court's judgment could be sustained only if the verdict rested solely on the second claim. The general verdict made it impossible for the court of appeals to determine the claim upon which the jury verdict rested.

The general verdict accompanied by special inter?

rogatories, governed by Rule 49(b), differs from the

special verdict. Unlike special verdict questions, special interrogatories are designed to test the jury's general ver?

dict, frequently with respect to only those issues par? ticularly troubling the court or the parties. Unlike a

special verdict, special interrogatories need not cover

every factual issue to be decided by the jury. Inconsistencies between the general verdict and special

interrogatories are also treated differently under Rule 49(b). When the special interrogatories are consistent with each other, but one or more is inconsistent with the

general verdict, the trial judge may either enter judgment pursuant to Rule 58 in accordance with the special inter

rogatories notwithstanding the general verdict, return the jury for further consideration of its answers and ver?

dict, or order a new trial. When the special interrogatories are inconsistent with

eacli other and one or more is inconsistent with the

general verdict, the trial judge must either return the jury for further consideration of its answers and verdict or order a new trial. In neither case may the court enter

judgment in accordance with the general verdict. Since general verdicts, either with or without special

interrogatories, are less likely to lead to a finding of in?

consistency requiring a new trial, why should you ever seek a special verdict? One reason involves the inherent limitations in the general verdict. Although our judicial system pays great homage to a party's right to a jury trial, many persons question whether the jury can understand complex legal principles.

Judge Frank once articulated:

We come, then, to this position, that the general verdict . . . confers on the jury a vast power to commit error and do mischief by loading it with technical burdens far beyond its ability to perform, by confusing it in aggregating instead of segregating the issues, and by shrouding in secrecy and mystery the actual results of its deliberations. . . . The record must be absolutely flawless, but such a result is possible only by concealing, not by excluding

mistakes. This is the great technical merit of the

general verdict. ... In short, the general verdict is valued for what it does, not for what it is. It serves as the great procedural opiate, . . . draws the cur? tain upon human errors and soothes us with the assurance that we have attained the unattainable. Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 61 (2d Cir.) cert, denied, 335 U.S. 816 (1948) (footnote omitted).

Judge Frank went on to describe the virtues of the

special or fact verdict:

Every advantage, which the jury is popularly sup? posed to have over the court as a trier of facts, is re?

tained, with the very great additional advantage that the analysis and separation of the facts in the case which the court and the attorney must necessarily effect in employing the special verdict, materially reduces the chance of error. It is easy to make

mistakes in dealing at large with aggregates of facts. The special verdict compels detailed consideration. But above all it enables the public, the parties and the court to see what the jury has really done. 167 F.2d at 65.

The use of special interrogatories with a general ver?

dict, designed to test the general verdict, is a compromise between a special verdict and a bald general verdict. It reduces the problems of inconsistency. But its efficiency depends on whether a resubmitted special interrogatory is likely to change an inconsistent general verdict. While special interrogatories occasionally serve their

intended purpose, it is more likely that the jury deter? mines the result it wishes to achieve and that result is reflected in the general verdict. When confronted with a

special interrogatory inconsistent with that general ver

(Please turn to page 56)

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Rule49

Interrogatories

(Continued from page 35) diet, the jury will more often than not decide who should win the case. The jury's answers to the special in?

terrogatories are designed in most cases to reinforce, but certainly not to undercut, the general verdict.

Thus, general verdicts accom?

panied by special interrogatories are

only marginally better than a bald

general verdict. In contrast, the

properly drafted special verdict re? tains the jury function in precisely the area that the jury, able to draw

upon its collective knowledge gained in the real world, can exercise its ex?

pertise?the finding of facts. It is fic? tion in any complex litigation to believe that a jury of lay men and women can be instructed on the law in a manner of minutes, or, at most, hours. The use of special verdicts enables the court to refrain from in?

structing the jury on complex prin? ciples of law. Special verdicts are

particularly helpful in cases involv?

ing multiple theories of recovery. The special verdict leaves to the jury those matters best handled by jurors and leaves to the court those matters best handled by the trial judge.

Despite the advantages of special verdicts, they certainly are not ap? propriate in all cases. The three choices the federal trial judge cur?

rently has in his verdict arsenal allow the judge to tailor the verdict form to the particulars of each case. The court, aware of the complexities of the law that confront the jury, and the conduct of the trial over the days or weeks in session, is the best per? son to determine the requirements of the verdict form. The trial judge can decide how to protect the jury verdict from reversal on appeal, while secur?

ing a result that comports with ele? mental fairness.

It remains for the trial lawyer to

propose the appropriate verdict form. When you believe you have a good case "on the law" but the facts look

bad, choose the special verdict. If the

judge insists upon a general verdict, at least attempt to include special in?

terrogatories in the verdict form.

Special interrogatories are intend? ed to do one of two things, if the jury is inclined to render an adverse

general verdict: (1) convince the jury, in the course of its deliberations, that its inclination to render an adverse

general verdict is ill-considered; or (2) reveal to the trial judge that the adverse general verdict is the product of passion and prejudice, or at least is inconsistent. The jury may see the er? ror of its ways and change the general verdict in the course of its delibera? tions. The judge may grant a new trial or enter judgment in accordance with the special interrogatories.

If you believe that your case at trial will appeal to the lay person or, more

basely, to the lay person's prejudices, but that the legal theories are less per? suasive, choose the general verdict. In this situation, pare your legal theories down to the bare minimum since a trial judge giving legal instructions on

multiple theories is much less likely to allow a general verdict.

Mistaken

Identification

(Continued from page 46) tive is to convince the jury that the honest testimony is nonetheless mis? taken. Where the scientific evidence shows unwanted reliance on the "honest" eyewitness the lawyer's task is increasingly difficult.

Experienced advocates have devel?

oped certain approaches to the prob? lem. This book should help those advocates refine and extend those

strategies. Newer advocates who need those techniques will find ample guid? ance here. In combination with the other classic, Patrick Wall's Eyewit? ness Identification in Criminal Cases, published in 1975, Professor Loftus's book provides an impressive array of ammunition to challenge eyewitness testimony.

Professor Loftus also outlines in some detail an important new tool in the lawyer's arsenal to combat eye

56

witness testimony-the use of a wit ness who is expert in the vagaries of

eyewitness testimony. In his foreword to the book, Stanford law professor John Kaplan states the problem:

Lawyers have innumerable rules

involving hearsay, the character of the defendant or of the wit ness, opinions given by a witness, and alike, which are in one way or another meant to improve the

fact-finding process. But more crucial than any one of these and possibly more critical than all put together-is the evidence of eyewitness testimony; there are virtually no rules which

govern what witnesses may say they saw with their own eyes. No one reading Professor Loftus's

book can doubt that an expert witness such as she would go a long way towards dispelling some of the errone ous assumptions that ajudge or jury is

likely to hold. The final chapter and the appendix to the book contain an account ofjust such expert testimony. Other examples have occasionally ap peared in print, such as M. Timothy, Jury Woman (1974), pp. 182-86 (a juror's account of the expert testi

mony in the Angela Davis case). It is well to remember, as Professor

Kaplan warns in his foreword, that "before long, we will see experts testi

fying on the other side as well." The

experience we have had with the bat tle of experts in psychiatric testimony is a cause for concern in this area.

But, for the daily practitioner, that long-range problem is less important than finding an effective way to com

municate in tomorrow's trial. The one weakness of the book is re

lated to its strength. Professor Loftus, who is not a lawyer, predictably fails to deal with the real problem of how one convinces the trial judge that the proposed expert witness on eyewit ness testimony is relevant to the pro ceedings. After all, one expert on the stand is worth two in the bush.

Supply Legal Analysis Lawyers ought to be able to supply

the necessary legal analysis from other sources. Trial judges are generally unwilling to grant a request for expert testimony, frequently wielding the shibboleth that such testimony "invades the province of

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