Appellate Insights

Wondering whether to use a special verdict for your trial?  Here are some things to consider.

• Inconsistent findings require a new trial.  Where the jury makes irreconcilable findings—as may happen when there are multiple causes of action with similar elements—there is no presumption in favor of upholding the verdict.  Instead, the remedy is a new trial.

• Missing findings are fatal.  A special verdict that does not elicit findings on all essential elements is susceptible to reversal:  Courts cannot imply findings to save the verdict.

• Special verdicts reveal the jury’s reasoning.  A jury’s issue-by-issue findings allow more focused post-judgment motion and appellate arguments than a general verdict would.  Assess whether or not this is likely to benefit your client.

► The practical message:  If you decide to use a special verdict form, scrutinize the draft for potential trouble spots, and the completed form for potential post-judgment motion or appeal implications.