The Hybrid Verdict Device

Answers Versus the General Verdict

The Hybrid Verdict Device

A jury can report its decision in more than one form, and the hybrid borrows from the other two. A general verdict asks the jury, on each claim, “Who won?” and, if it finds for the plaintiff in an action for damages, “How much?”¹ A special verdict replaces those questions: the court may require the jury to return only a special written finding on each issue of fact.² The hybrid combines the questions of the special verdict with a general verdict, and the older name “interrogatories” sometimes still attaches to it.³

Federal Rule of Civil Procedure 49(b)(1) supplies the mechanics. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must then give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and it must direct the jury to do both.⁴

The special verdict, the hybrid's closest relative, has drawn criticism. It makes deliberations harder and slower. Such tight control over the jury also sits uneasily with the jury's historic power to bring the community's standards to bear on a case, even when those standards differ from specific legal principles. Despite those objections, any party may request a special verdict, and the court may order one on its own.⁵ The hybrid keeps the general verdict and adds specific cross-check questions, which let the judge determine whether the verdict is consistent with the facts as found. Those questions typically aim to make certain that the liability determination fits the facts and that the jury applied the law as the judge charged it. The judge is not supposed to ask so many detailed questions that the jury has no discretion left over the size or type of the award.⁶

The extra answers that give the judge a cross-check also create the device's central difficulty. A jury that makes two kinds of statements can contradict itself. That is why the hybrid is used less often than the general or special verdict: it poses a greater risk of inconsistencies among the answers, or between them and the general verdict.⁷ Courts have a duty to harmonize inconsistent verdicts if possible. When harmonizing fails, the court's options depend on the kind of verdict and the nature of the inconsistency.⁸

Whether a form is a true hybrid depends on what the form actually asked. Turyna v. Martam Construction Co. shows the failing side of that line. The form there asked only who won and how much, and the court observed that it did precisely those two things, which is all a general verdict does.⁹ Read one way, the jury's answers were inconsistent: it said that Martam won on Count II, but that Martam had to pay Turyna punitive damages. Read another way, the verdict was more confused still. Asked the first time who won on Count II, the jury answered “Martam,” and asked the second time, “Turyna.”¹⁰ The form put no written question on an issue of fact to the jury, so the judge had no findings to set against the verdict, and the contradiction was a contradiction within a general verdict. The red-light form is different. Its question goes to a fact the plaintiff had to prove, so it works as a genuine cross-check.

That leaves the question the rest of the chapter answers. When a true hybrid verdict returns and the answers do not line up with the general verdict, what must the court do?