Concept
Answers Conflicting With the Verdict
Consistency of written answers with the general verdict
Answers Conflicting With the Verdict
Rule 49(b) addresses a specific mismatch: the jury’s written answers agree with one another, but at least one of them cannot be squared with the general verdict. When that happens, the court may take any one of three courses.1 Two conditions trigger the rule. The answers must tell a coherent story when read together, and at least one answer must point to a result different from the one the verdict announces. Even then, the court reaches the rule only after harmonizing has failed, because a fair reading that lets every statement stand leaves no inconsistency to remedy.2
The court now holds usable fact findings and one conclusion that does not follow from them, and the papers do not say why. The jurors may have misapplied the law to facts they found correctly, filled in the verdict form carelessly, or answered one question by mistake. Because one symptom can have several causes, the rule gives the court three tools instead of one fixed remedy. It may approve judgment according to the answers notwithstanding the general verdict, direct the jury to consider its answers and verdict further, or order a new trial.3
The verb is may, so each tool is permissive. The choice among them rests in the court’s discretion and typically turns on the judge’s perception of whether the jury is so confused that further deliberations merely might mask jury error.4 A jury that seems to have understood the case and slipped on one conclusion presents a different problem from a jury that seems to have misread the instructions throughout. A separate branch of Rule 49(b), taken up in the next section, governs the harder case in which the answers also contradict each other.
Judgment on the Answers
The first tool lets the specific answers override the general verdict: the court may approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict.5 The reason lies in what the answers are for. Cross-check questions are submitted so that the judge can tell whether the verdict is consistent with the facts as found and whether the law as charged was applied properly.6 When the answers form a coherent account and the verdict contradicts that account on a point that decides the case, the likelier error lies in the last step, where the jury applied the law to its findings. The jury decides questions of fact and the judge decides issues of law,7 so judgment on the answers lets the judge take that last step correctly and spares the parties a second trial.
The standard illustration is an automobile accident case in which the jury returned a general verdict of $500,000 for the plaintiff and, in the same verdict, specifically found the plaintiff guilty of contributory negligence. The substantive law barred recovery by a contributorily negligent plaintiff, so the court entered judgment for the defendant on the specific answer; the inconsistency could not be reconciled.8 The answer reported a fact, the law attached a consequence to that fact, and the verdict announced a result the consequence forbids.
Even on those facts, judgment on the answers remains an option and not a duty. The court could equally send the case back to the jury or order a new trial.9 Four limits keep the option within bounds.
The first limit is materiality. Specific answers prevail over the general verdict only when the answers and the verdict conflict on a material issue and there is no chance for reconciliation.10 Materiality turns on the governing substantive law: the contributory-negligence finding mattered because the law made it fatal to recovery.
The same answer can therefore override a verdict in one jurisdiction and leave it untouched in another, because the conflict comes from the legal consequence the jurisdiction attaches to the finding.
The second limit is the duty to harmonize. Before it sets a verdict aside, the court must try to reconcile an apparent inconsistency by viewing the case in the light most favorable to the answers’ consistency.11 Gallick v. Baltimore & Ohio R.R. Co. illustrates the duty: the Supreme Court read the jury’s answers so that they fit together, and the verdict stood. A court that had reached for judgment on the answers there would have discarded a result that a fair reading preserved. The contributory-negligence case differs on this very point, since no fair reading let both a recovery and a finding fatal to recovery be true.
The third limit is that real answers on fact issues must exist. In Turyna, the verdict form asked only who won on Count II and how much to award, which is what a general verdict does.12 It was not a special verdict, which contemplates a special written finding on each issue of fact.13 The form therefore gave the court no fact findings to enforce over the verdict. The automobile jury had reported a decisive fact in its answers; the Turyna jury had reported none. It said that Martam won on Count II yet owed Turyna punitive damages, and the reviewing court could not tell which part of that verdict controlled.14 The outcome of that uncertainty is taken up below.
The last limit explains why the answers must agree with one another. Judgment on the answers treats them as the jury’s findings and lets the law follow from them, which works only when the answers tell a single story. If they contradict each other and the verdict as well, the court may not enter judgment at all; it must request further deliberation or order a new trial, because there is no way for the judge to surmise what the appropriate verdict should be.15 That is why Rule 49(b) treats internally inconsistent answers as a separate branch with a narrower set of remedies.
Further Jury Consideration
The second tool returns the problem to the people who created it: the court may direct the jury to further consider its answers and verdict.17 In practice, the judge sends the jurors back to the jury room with the verdict form, and the jurors decide which statement to change. The judge does not choose between the answers and the verdict, as the judge does when entering judgment on the answers. The decision stays with the body that heard the evidence, which fits the division of labor under which the jury finds the facts and the judge applies the law.18
Resubmission is the cheapest cure because of what the conflict reveals. A verdict that contradicts the answers tells the court that something in the jury’s statements is mistaken, but not what. The jurors may have misjudged a fact, misunderstood the instruction that connects the facts to a winner, or marked the wrong box, and only they know which. A short return to deliberation can settle the question at its source, while a new trial makes the lawyers and witnesses repeat the whole case before a different jury. When the jury appears to have understood the case and slipped on a single step, the court therefore has good reason to try resubmission first.
Timing sets the limit on the option. A court can direct only a jury that is still empaneled, so the cure disappears once the jurors are discharged, and the court’s remaining choices narrow with it. A party who sees the conflict has every reason to raise it while the jurors are still in the courtroom, a point developed later in this chapter.
Two cautions apply even while the jury is available. The first is pressure. Resubmission asks jurors who have just announced a result to revisit it, and the way the court frames the return can signal which result the judge prefers. If the jurors feel coerced, the resulting verdict is not returned fairly.19 A short, neutral explanation of the form is the safer course.
The second caution is masking. If the conflict comes from confusion deeper than one misread question, a revised verdict may hide the error without curing it. That risk is why the choice among the three courses rests in the court’s discretion and typically turns on whether the jury is so confused that further deliberations merely might mask jury error.20 A court that doubts the jury can repair its own mistake still has the third option, which the next section takes up.
Ordering a New Trial
The third tool abandons the trial already held: the court may order a new trial.22 Judgment on the answers and further jury consideration both repair the problem inside that trial, one by letting the judge apply the law to the answers and the other by letting the same jurors correct their papers. A new trial sends the disputed issues to a fresh jury, which makes it the natural remedy for a case the other two courses cannot responsibly fix.
The reason follows from what each of the other courses assumes. Judgment on the answers assumes that the answers are the jury’s real findings and that the verdict is a slip in applying the law to them. Further consideration assumes that the jurors are available and can repair the conflict without being steered toward a result. When neither assumption holds, the court has two jury statements that cannot both be true, and judgment on either would make the judge, not the jury, decide which statement the jury meant. A new trial returns the question to a jury. The price is high, because witnesses testify again and the lawyers try the dispute a second time, which is why a court first asks whether a cheaper course will do.
Sawyer v. Robson shows a conflict that no fair reading could repair. A tenant claimed that her landlords had illegally evicted her from a mobile home, and the landlords defended on the ground that she had abandoned it. They conceded that they entered the home, removed her belongings, kept them in storage until she obtained a court order, and changed the locks.23 The jury was told that if the abandonment criteria were not met and the landlords denied the tenant access, it could find an illegal eviction.24 On the verdict form, the jury found no illegal eviction, but it also found that the tenant had not abandoned the home. The tenant moved for a new trial, arguing that the jury could not logically find for the landlords after rejecting their only defense, and the trial court granted the motion under Vermont’s counterpart to Rule 49(b).25 Because Sawyer is a state decision applying a state rule, it teaches reasoning and does not bind a federal court.
On appeal the landlords argued that the answers could be reconciled, which is the step every Rule 49(b) problem begins with. But a reconciling theory must be one the record can bear. Given the landlords’ own concessions, the Vermont Supreme Court called their theory untenable, held the findings inconsistent, and concluded that the trial court did not abuse its discretion in ordering a new trial.26 Rejecting abandonment while also rejecting an illegal eviction left no explanation for the verdict in a case where the landlords admitted the entry, the removal, and the lock change. Only a new jury could resolve the contradiction without the judge deciding which finding the first jury meant.
Turyna carries the same lesson to a general verdict. There the reviewing court said it could not tell which part of the verdict should control, because favoring the liability answer would do as much violence to the jury’s findings as favoring the damages answer, and it held that the trial court should have ordered a new trial on Count II.27 The Turyna form was a general verdict and not a Rule 49(b) verdict, so the case illustrates the same reasoning and not the rule’s text.
A court that orders a retrial too quickly commits its own error. In USFL v. NFL, the plaintiffs cited many apparent inconsistencies, often setting an answer on one claim beside an answer on another. The court was unconvinced that any of them was so irreconcilable that a new trial was required, and it described the plaintiffs’ approach as argument by juxtaposition that exalts semantics over substance.28 What separates that result from Sawyer is whether a consistent view of the case existed. In USFL the court found the alleged conflicts reconcilable. In Sawyer the landlords’ own concessions foreclosed any reconciling theory.
Even when the jury is still in the courtroom and a fair reading has failed, the choice between resubmission and a new trial rests in the court’s discretion. Resubmission risks undue pressure on the jurors, and a verdict returned under coercion is not returned fairly.29 If the confusion seems deeper than one misread question, a revised verdict may only mask the error.30 Review of the choice is deferential: the Vermont court in Sawyer asked only whether the trial court had abused its discretion.31 Two errors are therefore possible: ordering a new trial before trying to harmonize the answers, and entering judgment on one jury statement when the court has no reliable way to choose between them.