Checking a Verdict Step by Step

Checking a Verdict Step by Step

A federal civil verdict faces two separate tests, and each comes from a different rule. The first test classifies the form, and the form depends on what the court told the jury to do: under Rule 49(b)(1), the court may submit a general verdict form together with written questions on issues of fact, and it must direct the jury to do both.¹ The second test decides whether the jury's decision can be received at all, and Rule 48(b) answers that by requiring a unanimous verdict, returned by at least six members, unless the parties stipulate otherwise.² Neither answer predicts the other. A form whose type is beyond doubt can carry a vote that fails, and a vote that passes can sit on a form that a court would struggle to label.

Exam problems rarely announce which test they are probing. The facts report that a jury returned something, and finding the issue is left to you. One bar-prep treatment of trial procedure warns that the litigants often state their positions cursorily and without reasoning, so you must work out what the reasoning could have been, which makes issue-spotting unusually hard in the trial context.³ A fixed order of checks keeps the two inquiries from bleeding into each other.

One extended set of facts shows the steps working together.

The first step settles the type. The jury received the law, was told to decide who prevails, and was directed to answer written questions as well, so the verdict is a general verdict with written questions under Rule 49(b)(1).⁴ The written questions alone could not have decided the matter, because special verdicts carry written questions too. The instruction on the law and the direction to do both place the form in the hybrid category.

The second step sets the pass mark without yet applying it. Eight jurors remained after the two excusals, which clears the floor of six, so size causes no trouble. The facts record no stipulation, so the default applies and all eight had to join the verdict.⁵ A stipulation would change the pass mark, and nothing in these facts suggests one. The foreperson's announcement never revealed the vote count, which is why the third step carries the weight. The poll came before discharge, and seven of eight falls short of the pass mark. The clarity of the form in step one does nothing to repair that shortfall, and the court's options after a failed poll are the ones covered in the earlier discussion of polling.

A verdict can also stumble at step one and still clear steps two and three.

The label here is open to argument. Rule 49(b)(1) calls for a direction to do both, and the court gave no direction to return a verdict, so the form fits the hybrid description poorly.⁶ Validity never depended on that label. Six jurors returned the verdict, which meets the minimum, and all six joined it, which meets unanimity, so Rule 48(b) is satisfied whatever form the verdict finally earns.⁷ How the court handles answers that conflict with each other or with a general verdict is a separate question, taken up in another reading.