Appellate Insights

Litigators preparing for trial often ask whether they should propose a general verdict or a special verdict.  Although there are many strategic considerations, a key one is that special verdicts are more vulnerable to reversal on appeal than general verdicts.  Some reasons for that are:

• With a general verdict, the Court of Appeal will imply findings in favor of the judgment on every controverted factual issue.  By contrast, with a special verdict there are no implied findings—if the jury fails to make a finding on a controverted issue, the verdict is defective.

• Where two or more special verdict findings cannot be reconciled, there is no presumption in favor of upholding the verdict; instead, the remedy is to order a new trial.

►  The practical message:  The form of the verdict can have significant consequences for the standard of appellate review.  It is worth factoring in those consequences when deciding what type of verdict to propose.