Six tips from an appellate lawyer about how to minimize the risk of inconsistent verdicts
Inconsistent verdicts are one of the most frustrating issues that come up in my appellate practice. This year, for example, I handled a products-liability case where the jury ruled against the plaintiff on strict-liability failure to warn, and in favor of the plaintiff on negligent failure to warn. The appellate court held that these findings were inconsistent, vacated an $80 million judgment, and remanded the case for a new trial. (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 127-142.)
I have six tips for trial lawyers to avoid this fate. Before I share them with you, I’ll need to explain a little bit of law.
Types of verdicts
In the California courts and in federal court, there are three types of verdicts:
- General Verdicts (FRCP 49(b); Cal. Code Civ. Proc., § 624)
- General Verdicts with Special Interrogatories (FRCP 49(b); Cal. Code Civ. Proc., § 625)
- Special Verdicts (FRCP 49(b); Cal. Code Civ. Proc. § 624)
Under California law, a general verdict is “that by which (jurors) pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant …” (Cal. Code Civ. Proc., § 624.)
A special verdict “is that by which the jury finds the facts only, leaving the judgment to the Court.” (Ibid.) The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Ibid.)
A general verdict with special interrogatories is sort of an amalgam of both a general and special verdict. It instructs the jury to return a general verdict, while also answering specific questions of fact. (Code Civ. Proc., § 625; FRCP 49(b).)
These definitions are largely accurate with respect to federal court, as well. Rule 49(b) of the FRCP authorizes the use of a “General Verdict with Answers to Written Interrogatories.” Rule 49(a) authorizes the use of special verdicts. Rule 49 has also been held to implicitly authorize the use of a general verdict without interrogatories. (Zhang v. American Gem Seafoods, Inc. (9th Cir. 2003) 339 F.3d 1020, 1031.)
As a practical matter, in civil cases, trial judges in both the Superior Courts and in the federal district courts will seldom use pure general verdicts any longer. Rather, they always will require the jury to answer questions that make factual findings. It was not always so, and it is still not how juries are asked to resolve criminal cases. Think about it – when was the last time you either saw an actual criminal verdict returned, or saw a fictionalized version in a movie or on TV, and the clerk (in a real trial) or the jury foreperson (in a fake one) read the verdict saying, “We the jury in the above-entitled action, on the first count, murder in the first degree, find that the defendant (a) killed a human being; (b) the killing was unlawful; and (c) the killing was done with malice aforethought.”
No; that’s just not how it goes. Juries find the defendant “guilty” or “not guilty” on each charge. We all know this. These are general verdicts.
Special verdict vs. general with special interrogatories
So, what is the difference between a special verdict and a general verdict with special interrogatories? That depends on when you ask the question. If you ask at the point that the verdict form is being proposed, the answer is – not much. As the California Supreme Court explained in 1907, “Special verdicts and special interrogatories are identical in everything but the name.” (Plyer v. Pacific Portland Cement Co. (1907) 152 Cal. 125, 134.)
The Ninth Circuit takes a similar view. “As a practical matter, it seems that the form of a general verdict with interrogatories is virtually indistinguishable from that of a special verdict. 5A Moore ¶ 49.03, 49.04; 9 Wright & Miller §§ 2508, 2512. Both may appear simply as a list of questions calling for findings of fact. 1 Fed.Proc.Forms §§ 1:1578, 1615, 1616. Often courts are unable to decide whether a verdict is a special verdict under Rule 49(a) or a general verdict with interrogatories under Rule 49(b).” (Floyd v. Laws (9th Cir. 1991) 929 F.2d 1390, 1395.)
Ultimately, the Floyd court proposed the following test for how to tell a special verdict from a general verdict with special interrogatories: If the trial court calls the verdict form a “special verdict” form, then the verdict is a special verdict; if it calls it a general verdict with special interrogatories, then it is a general verdict with special interrogatories. (Id., 929 F.3d at p. 1396 [“as a matter of law, the interrogatories submitted to the jury in this case constituted a special verdict, simply because that is what the trial court declared them to be”].)
In a more recent case, Zhang v. American Gem Seafoods, Inc. (9th Cir. 2003) 339 F.3d 1020, 1031, the Ninth Circuit developed a functional test: When a jury is required to provide “the ultimate legal result of each claim,” it has returned an ordinary general verdict. (Id.) If it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. (Ibid.) “If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.” (Ibid.)
Juries rendering general verdicts face a dual task: “First, they are responsible for finding facts, which are reflected in their answers to special interrogatories…. Second, they must reach a general verdict by applying the law to their findings of fact.” (Floyd v. Laws, 929 F.2d at 1395, citations omitted.) To allow them to fulfill the second function, the court will provide detailed instructions about the law. (Ibid.) By contrast, special verdicts do not require legal instruction because the jury focuses exclusively on its fact-finding role. (Zhang, 339 F.3d at 1031.)
Why does it matter what the verdict is called?
If there is no practical difference between a special verdict and a general verdict with special interrogatories, why does it matter what the judge calls the verdict form? Because, despite the lack of substantive differences between the two types of verdicts, the rules for appellate review of general and special verdicts, and specifically the rules for how courts reconcile potential inconsistencies in the jury’s answers on the verdict form are different for special verdicts and general verdicts (and hence for special verdicts and general verdicts with special interrogatories.)
When a special verdict is used, the jury must make findings on every controverted factual issue. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242.) By contrast, a general verdict will imply findings in favor of the prevailing party on every fact essential to support the claim or defense at issue. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673.)
Special verdicts do not create any implied findings. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.) As a result, with a special verdict, “the possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings.” (Ibid.)
With a general verdict with special interrogatories, if there is an inconsistency between the general verdict and the findings on the special interrogatories, the general verdict “will not be set aside unless there is no possibility of reconciling the general and special verdicts under any possible application of the evidence and instructions.” (Id., 126 Cal.App.4th at p. 679.) “But this rule of reconciliation does not apply to inconsistencies between questions in a special verdict because . . . there is no such presumption in favor of upholding a special verdict.” (Ibid.) “A court reviewing a special verdict does not infer findings in favor of the prevailing party, and there is no presumption in favor of upholding a special verdict when the inconsistency is between two questions in a special verdict.” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.)
You are not reading that wrong. There is no difference between general verdicts with special interrogatories and special verdicts – until the case is on appeal and the verdict is being reviewed. Then, two different standards will be used, and one of those standards makes it much easier for the reviewing court to uphold the verdict.
With this legal backdrop in mind, the tips I offer will make a lot more sense.
Tip 1: Don’t ever propose or stipulate to the use of a “special verdict.”
Always propose a “general verdict with special interrogatories” and always try to have the trial court title the form that way. If the court won’t accept that, at least try to have the verdict form called “verdict form” as opposed to “special verdict form.”
If the judge is reluctant, point out the law, cited above, that makes clear that, in the trial court, there is no functional difference between a “special verdict” and a “general verdict with special interrogatories.”
Note that the drafters of the CACI verdict forms call them “special verdict forms” in the use instructions. This seems wrong. As noted above, with a true “special verdict,” the jury does not actually apply law to fact; they simply find facts and allow the court to apply the law to those facts. With true special verdict forms, there is no need for jury instructions about the law! (Zhang, 339 F.3d at 1031.) Hence, if the jury is receiving all those CACI instructions, it does not seem that they are being asked to return a “special verdict.”
Tip 2: If you use the CACI verdict forms, or any other form that could be viewed as a “special verdict,” do not leave out any of the elements of the claim.
Since “special verdicts” require the jury to resolve every material controverted factual issue, if you leave an element off the form, you are building in a risk of reversal. For example, in an appeal from a third-party bad-faith case I recently handled, the defense proposed a verdict form that required the jury to make a finding on causation. Plaintiff’s counsel was concerned that the defense would try to leverage the question on the form into its argument that the “real” reason that the case did not settle within policy limits was not the insurer’s refusal to pay the demand; it was the sharp practices of the plaintiff’s lawyer.
Of course, the jury instructions informed the jury that causation is an element of a bad-faith claim, but the defense argued vigorously on appeal that the verdict was defective because the jury failed to decide the disputed issue of causation.
Similarly, in Trejo, the verdict form on the negligent failure-to-warn claim omitted the element asking the jury to find that “a reasonable manufacturer under the same or similar circumstances would have warned of the danger.” The appellate court held that the form was defective. (Id., 13 Cal.App.5th at p. 136.)
It is not worth keeping questions about the essential elements of the claim off the verdict form as a way to try to shape the jury argument. Since the instructions will have the same elements, the strategy is not likely to prevent the other side from making the argument that concerns you. But it can cause massive problems on appeal.
Tip 3: Do not ask the jury to answer the same question twice.
The rule says that a jury returning a special verdict must answer each disputed factual issue in the case. It does not say that the jury must answer the same questions for each claim being asserted, or that the jury’s answers to one question in one claim cannot be applied to a different claim. So there is no need for the duplication that routinely occurs on verdict forms, nor is there any benefit to such duplication. If you ask the jury to answer the same question more than once, and it answers those questions inconsistently, you have a problem.
Tip 4: Make sure that if the jury is asked to answer the same question twice, the question is phrased identically.
Do not assume that the CACI verdict forms do not present this problem. They do! Here is an example. A common element of claims for strict liability failure to warn and negligent failure to warn is that the product presents a risk that is substantial enough to require a warning. Unfortunately, the CACI verdict forms for these claims ask this question in different ways.
Question 3 on CACI VF 1203, the verdict form for strict-liability failure to warn, asks “Did the potential [risks/side effects/allergic reactions] present a substantial danger to persons using or misusing the [product] in an intended or reasonably foreseeable way?”
Question 2 on CACI VF 1205, the verdict form for negligent failure to warn, asks, “Did [name of defendant] know or should [he/she/it] reasonably have known that the [product] was dangerous or was likely to be dangerous when used or misused in a reasonably foreseeable manner?”
These are plainly not the same question. One asks about whether the product had potential risks that presented a “substantial danger” to the user. The other asks whether the defendant knew or should have known that its product was “dangerous” or “likely to be dangerous” in foreseeable use.
It is possible that a jury might conclude upon reading these questions that there is a difference between something that poses a “danger,” something that is “substantially dangerous,” and something that is “likely to be dangerous.” If so, they could easily answer the questions differently, based on their perception of this difference.
Yet, the Court of Appeal has twice held that a jury that answers question 3 on CACI VF 1203 “no” and answers question 2 on CACI VF 1205 “yes” has reached an inconsistent verdict. (See Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1482 [jury finding in favor of defendant on strict liability failure to warn subsumes inconsistent finding in favor of plaintiff on negligent failure to warn]; Trejo, 13 Cal.App.5th at pp. 128-130 [jury’s findings on strict liability failure to warn and negligent failure to warn are inconsistent].)
Hence, it is vital that you carefully examine each question on the form, compare it to any similar questions on the form, and make sure that if there are differences in wording, that you truly intend to communicate to the jury that they are being asked two distinct questions, not one question phrased in two ways.
Tip 5: Do not ask the jury to make separate findings on malice, oppression, and fraud.
On verdict forms in cases that seek punitive damages, make sure that the verdict form asks the jury a single question about whether the defendant acted with “malice, oppression or fraud?” Do not divide the question into three parts, one for malice, one for oppression, and one for fraud.
That is what happened in Nickerson v. Stonebridge Life Insurance Company (2013) 219 Cal.App.4th 188, 203, review granted and opinion superseded sub nom. (Nickerson v. Stonebridge Life Ins. (Cal. 2013) 165 Cal.Rptr.3d 61 [314 P.3d 51], and rev’d (2016) 63 Cal.4th 363.) The jury found “fraud” but not “malice” or “oppression.” The late Justice Croskey concluded that this verdict was inconsistent, because, in his view, when the jury found that there was no “malice,” it negated any basis to make a finding of fraud. As he explained in his dissent, “[C]onduct constituting fraud under these instructions also necessarily constitutes malice . . . an intent to cause injury. The finding of no malice therefore is inconsistent with the finding of fraud, and I can see no way to reconcile the inconsistency between these two express findings.”
Because review was ultimately granted in Nickerson, the Court of Appeal’s opinion is not citable in California. (But it can still be cited in the Ninth Circuit.) This is a pity, because in a footnote, the majority explained, “We agree with the dissent that jurors should not be presented with a special verdict form that requests them to make discrete findings as to oppression, fraud, or malice. Such interrogatories are unnecessary and serve only to open the verdict to post-trial challenges, as demonstrated by the controversy raised by the dissent.” (Id., 219 Cal.App.4th at 203, n. 3.)
Even though the 2013 opinion in Nickerson is not citable binding precedent, it still teaches a valuable lesson about how to avoid an inconsistent verdict on punitive damages.
Tip 6: Do not wait to put the verdict form together until just before closing argument.
Have it done before the trial starts. Do whatever you need to do to get the defense to deal with the form before trial as well. I am just an appellate lawyer, with limited trial experience, but even I have been involved in multiple trials where the final version of the verdict form was being ironed out at lunch, just before closing argument. This is a recipe for disaster.
Trying to put a verdict form together under time pressure, on a laptop in the courthouse cafeteria, makes it easy to miss problems and to make mistakes that will become all too obvious once the verdict is in and the defense is looking for reasons to overturn it. Make sure you give the verdict form the time it deserves. Your appellate lawyer, and your client, will thank you.
Jeffrey I. Ehrlich is the principal of the Ehrlich Law Firm, in Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine and a two-time recipient of the CAALA Appellate Attorney of the Year award. He was honored in November 2019 as one of the Consumer Attorneys of California’s “Street Fighters of the Year.”
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