As an appellate lawyer, I have a continuing (and probably unhealthy) obsession with verdict forms. Just like any other jury instruction, they can make or break your appeal. So it’s important to know when you must object to them, and when you can sit back and watch opposing counsel sabotage his or her own case.
Yesterday, the Tenth Circuit decided to indulge my obsession by issuing its decision in Pratt v. Petelin, a medical malpractice case. The jury was instructed that four factual theories supported the plaintiff’s negligence claim, and the jury returned a general verdict in the plaintiff’s favor that did not specify the factual theories on which it relied.
The defendant doctor appealed, arguing that the entire verdict must be reversed because three of the four factual theories were unsupported by the evidence, and because the general verdict did not reveal whether the jury relied on one of the supposedly insufficient theories.
Judge Stephanie Seymour’s opinion rejected this argument. In sum, where a general verdict includes several claims, one of which is not supported by the evidence, or is otherwise legally improper, then a general verdict must be reversed where one of the claims has been improperly submitted, because it’s not possible to determine whether the verdict is based on the improper claim. The defendant need not ask for a special verdict form, provided that it has otherwise objected to submitting the improper claim to the jury. In that situation, presumably, if the plaintiff insists on a general verdict in spite of the defendant’s objection, it’s the plaintiff’s own fault if the verdict ends up being defective.
But where a single claim is submitted on multiple factual theories, and the defendant believes that one or more of those theories is not supported by the evidence, then the defendant must ask for a special verdict form, so that it can be determined whether the jury relied on an improper factual theory.
The rationale for this distinction comes from the Supreme Court’s decision in Griffin v. United States, 502 U.S. 46 (1991), which stated that when an entire claim is improperly submitted due to legal error, a jury of laypersons is not equipped to decide whether a particular claim is not supported by law. But when a factually inadequate theory is submitted, jurors are well equipped to assess the evidence.
So keep that in mind the next time you are involved in an increasingly rare federal civil jury trial.
But this decision doesn’t mean that a defendant should always object to a general verdict. There may be sound strategic reasons not to. For example, if the defendant is more concerned about the issue-preclusive effect that a jury verdict may have in the future, then a general verdict may be preferable, because if a jury hasn’t said which specific factual theories it relied on, then the verdict can’t have issue-preclusive effect. The important thing is that you think it through before the verdict form is submitted, rather than waiting till you’re in the appellate court.
