The power and the process: Instructions and the civil jury

Fordham Law Review

Volumn 66, Issue 5, 1998, Pages 1837-1893

  Thornburg, Elizabeth G ^a,b  

^a SOUTHERN METHODIST UNIVERSITY   (United States)

^b Dept of Economics and Thomas Jefferson Program in Public Policy at the College of William and Mary

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032381253     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (250)

1. See Robert P. Burns, The History and Theory of the American Jury, 83 Cal. L. Rev. 1477, 1490 (1995) (reviewing Jeffrey Abramson, We the Jury: The Jury System and the Ideal Democracy (1994)) (contending that a truly representative jury that maintains its traditional role of engaging in highly contextual moral evaluation will be attacked by elite with political and economic power in other institutions); see, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 335 (Tex. 1993) (Doggett, J., dissenting) (reacting to a case creating a threshold requirement that plaintiffs show "extreme degree of risk" as a matter of law, thus removing certain issues from the jury). The dissent stated: "The only further insight offered to its thinking is the majority's recurrent fear of our right to trial by jury." Id.
2. See Robert P. Burns, The History and Theory of the American Jury, 83 Cal. L. Rev. 1477, 1490 (1995) (reviewing Jeffrey Abramson, We the Jury: The Jury System and the Ideal Democracy (1994)) (contending that a truly representative jury that maintains its traditional role of engaging in highly contextual moral evaluation will be attacked by elite with political and economic power in other institutions); see, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 335 (Tex. 1993) (Doggett, J., dissenting) (reacting to a case creating a threshold requirement that plaintiffs show "extreme degree of risk" as a matter of law, thus removing certain issues from the jury). The dissent stated: "The only further insight offered to its thinking is the majority's recurrent fear of our right to trial by jury." Id.
3. See Robert P. Burns, The History and Theory of the American Jury, 83 Cal. L. Rev. 1477, 1490 (1995) (reviewing Jeffrey Abramson, We the Jury: The Jury System and the Ideal Democracy (1994)) (contending that a truly representative jury that maintains its traditional role of engaging in highly contextual moral evaluation will be attacked by elite with political and economic power in other institutions); see, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 335 (Tex. 1993) (Doggett, J., dissenting) (reacting to a case creating a threshold requirement that plaintiffs show "extreme degree of risk" as a matter of law, thus removing certain issues from the jury). The dissent stated: "The only further insight offered to its thinking is the majority's recurrent fear of our right to trial by jury." Id.
4. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (discussing summary judgment); see also Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 95 (1988) (discussing the Court's expanded use of summary judgment and directed verdict).
5. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (discussing summary judgment); see also Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 95 (1988) (discussing the Court's expanded use of summary judgment and directed verdict).
6. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993) (limiting expert testimony); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (same).
7. See, e.g., BMW of North America v. Gore, 517 U.S. 559 (1996) (reviewing punitive damage award); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (engaging in due process analysis of judge and jury roles in punitive damage cases); cf. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) (holding that Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), requires federal courts to accommodate state law procedural devices limiting jury discretion in assessing damages).
8. U.S. Const. amend VII ("[T]he right of trial by jury shall be preserved . . . .").
9. See Marc Galanter, The Civil Jury as Regulator of the Litigation Process, 1990 U. Chi. Legal F. 201, 206 [hereinafter Galanter, The Civil Jury] (discussing newly focused attacks on juries and proposals to limit their power); Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 580 (1993) (tracing the practices of opponents to the civil jury who utilized procedural changes to marginalize juries and decrease their power).
10. See Marc Galanter, The Civil Jury as Regulator of the Litigation Process, 1990 U. Chi. Legal F. 201, 206 [hereinafter Galanter, The Civil Jury] (discussing newly focused attacks on juries and proposals to limit their power); Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 580 (1993) (tracing the practices of opponents to the civil jury who utilized procedural changes to marginalize juries and decrease their power).
11. See Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. Chi. Legal F. 87, 93 [hereinafter Yeazell, The New Jury] (describing the eighteenth-century changes that altered relationships of power among judges, counsel, and jury); see also David Millon, Juries, Judges, and Democracy, 18 Law & Soc. Inquiry 135, 152 (1993) (reviewing Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence Before John Marshall (1990)) (describing the nineteenth-century procedural changes used to gradually diminish jury authority).
12. See Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. Chi. Legal F. 87, 93 [hereinafter Yeazell, The New Jury] (describing the eighteenth-century changes that altered relationships of power among judges, counsel, and jury); see also David Millon, Juries, Judges, and Democracy, 18 Law & Soc. Inquiry 135, 152 (1993) (reviewing Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence Before John Marshall (1990)) (describing the nineteenth-century procedural changes used to gradually diminish jury authority).
13. This article attempts to place the issue of the form of jury instructions in the context of recent jurisprudential discussions of and empirical insights into the nature and function of the jury. Scholars have begun to analyze the composition of the jury in light of these theories. See Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 Cornell L. Rev. 325 (1995); Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill Rts. J. 29 (1994); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L. Rev. 1041 (1995). Scholars have also discussed the effect of other procedural changes on the jury. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725 (1989); Yeazell, The New Jury, supra note 7. But no one has re-examined the issues raised by charge format itself in light of these changes in our understanding of the political and process issues implicated by the civil jury.
14. This article attempts to place the issue of the form of jury instructions in the context of recent jurisprudential discussions of and empirical insights into the nature and function of the jury. Scholars have begun to analyze the composition of the jury in light of these theories. See Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 Cornell L. Rev. 325 (1995); Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill Rts. J. 29 (1994); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L. Rev. 1041 (1995). Scholars have also discussed the effect of other procedural changes on the jury. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725 (1989); Yeazell, The New Jury, supra note 7. But no one has re-examined the issues raised by charge format itself in light of these changes in our understanding of the political and process issues implicated by the civil jury.
15. This article attempts to place the issue of the form of jury instructions in the context of recent jurisprudential discussions of and empirical insights into the nature and function of the jury. Scholars have begun to analyze the composition of the jury in light of these theories. See Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 Cornell L. Rev. 325 (1995); Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill Rts. J. 29 (1994); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L. Rev. 1041 (1995). Scholars have also discussed the effect of other procedural changes on the jury. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725 (1989); Yeazell, The New Jury, supra note 7. But no one has re-examined the issues raised by charge format itself in light of these changes in our understanding of the political and process issues implicated by the civil jury.
16. This article attempts to place the issue of the form of jury instructions in the context of recent jurisprudential discussions of and empirical insights into the nature and function of the jury. Scholars have begun to analyze the composition of the jury in light of these theories. See Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 Cornell L. Rev. 325 (1995); Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill Rts. J. 29 (1994); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L. Rev. 1041 (1995). Scholars have also discussed the effect of other procedural changes on the jury. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725 (1989); Yeazell, The New Jury, supra note 7. But no one has re-examined the issues raised by charge format itself in light of these changes in our understanding of the political and process issues implicated by the civil jury.
17. See Robert L. McBride, The Art of Instructing the Jury (1969); Amiram Elwork et al., Juridic Decisions: In Ignorance of Law or in Light of It?, 1 Law & Hum. Behav. 163 (1977). See generally Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979) (describing empirical research concerning jurors' understanding of instructions).
18. See Robert L. McBride, The Art of Instructing the Jury (1969); Amiram Elwork et al., Juridic Decisions: In Ignorance of Law or in Light of It?, 1 Law & Hum. Behav. 163 (1977). See generally Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979) (describing empirical research concerning jurors' understanding of instructions).
19. See Robert L. McBride, The Art of Instructing the Jury (1969); Amiram Elwork et al., Juridic Decisions: In Ignorance of Law or in Light of It?, 1 Law & Hum. Behav. 163 (1977). See generally Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979) (describing empirical research concerning jurors' understanding of instructions).
20. See, e.g., Burns, supra note 1, at 1490 (noting that a truly democratic jury may be "incongruent with the distribution of power in economic and political spheres of American society"); Dooley, supra note 8, at 326-27 (discussing how limits on jury power coincide with the jury's increasing diversity).
21. See, e.g., Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992) (reviewing empirical data that shows that unsophisticated belief in the pro-plaintiff nature of juries is oversimplified and misleading).
22. Juries have not always been instructed in the law. Until the nineteenth century, American juries were presumed to be capable of deriving the law from community norms, and judges did not instruct them on applicable law. See Millon, supra note 7, at 137 n.4; William W. Schwarzer, Communicating with Juries: Problems and Remedies, 69 Cal. L. Rev. 731, 732-37 (1981).
23. Federal practice is important both in its own right and in its tendency to be seen as a model for state procedural practices. While federal courts handle only about two percent of all civil cases in American courts, they conduct from seven to ten percent of all civil jury trials. Galanter, The Civil Jury, supra note 6, at 214.
24. See Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1519 (6th Cir. 1990); Guidry v. Kem Mfg. Co., 598 F.2d 402, 405 (5th Cir. 1979); Charles Alan Wright & Arthur R. Miller, 9A Federal Practice and Procedure § 2501 (2d ed. 1995); Shaun P. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683, 694 (1995). While this assumption is probably correct, it does not rest on an actual empirical study of federal practices regarding jury submission. It is also probable that federal courts sitting in states which use special verdicts (such as North Carolina, Texas, and Wisconsin) tend to use some form of special verdict, at least in diversity cases. In addition, use of the special verdict is becoming increasingly common throughout the federal system. See Wright & Miller, supra, § 2505.
25. See Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1519 (6th Cir. 1990); Guidry v. Kem Mfg. Co., 598 F.2d 402, 405 (5th Cir. 1979); Charles Alan Wright & Arthur R. Miller, 9A Federal Practice and Procedure § 2501 (2d ed. 1995); Shaun P. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683, 694 (1995). While this assumption is probably correct, it does not rest on an actual empirical study of federal practices regarding jury submission. It is also probable that federal courts sitting in states which use special verdicts (such as North Carolina, Texas, and Wisconsin) tend to use some form of special verdict, at least in diversity cases. In addition, use of the special verdict is becoming increasingly common throughout the federal system. See Wright & Miller, supra, § 2505.
26. See Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1519 (6th Cir. 1990); Guidry v. Kem Mfg. Co., 598 F.2d 402, 405 (5th Cir. 1979); Charles Alan Wright & Arthur R. Miller, 9A Federal Practice and Procedure § 2501 (2d ed. 1995); Shaun P. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683, 694 (1995). While this assumption is probably correct, it does not rest on an actual empirical study of federal practices regarding jury submission. It is also probable that federal courts sitting in states which use special verdicts (such as North Carolina, Texas, and Wisconsin) tend to use some form of special verdict, at least in diversity cases. In addition, use of the special verdict is becoming increasingly common throughout the federal system. See Wright & Miller, supra, § 2505.
27. Fed. R. Civ. P. 49(a).
28. Id. 49(b).
29. See Wright & Miller, supra note 14, § 2512; see also Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971) (stating that the district court has discretion in deciding what issues to submit and the form in which they are submitted).
30. See Wright & Miller, supra note 14, § 2512.
31. Charles Alan Wright, The Use of Special Verdicts in Federal Court, 38 F.R.D. 199, 203 (1966).
32. See Wright & Miller, supra note 14, § 2505.
33. Edward J. Devitt et al., Federal Jury Practice and Instructions § 6.05 (4th ed. 1992) (quoting Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 66-67 (2d Cir. 1948)). This level of discretion is particularly striking when examined in the context of all of the Federal Rules of Civil Procedure governing the trial itself. Collectively, these rules allow the trial judge extremely wide discretion to run the trial as she chooses because the content of the rules is discretionary rather than prescriptive. See, e.g., Fed. R. Civ. P. 40 (assignment of cases for trial); Fed. R. Civ. P. 43 (taking of testimony); Fed. R. Civ. P. 47 (selection of jurors); Fed. R. Civ. P. 48 (number of jurors).
34. Edward J. Devitt et al., Federal Jury Practice and Instructions § 6.05 (4th ed. 1992) (quoting Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 66-67 (2d Cir. 1948)). This level of discretion is particularly striking when examined in the context of all of the Federal Rules of Civil Procedure governing the trial itself. Collectively, these rules allow the trial judge extremely wide discretion to run the trial as she chooses because the content of the rules is discretionary rather than prescriptive. See, e.g., Fed. R. Civ. P. 40 (assignment of cases for trial); Fed. R. Civ. P. 43 (taking of testimony); Fed. R. Civ. P. 47 (selection of jurors); Fed. R. Civ. P. 48 (number of jurors).
35. See Pamela J. Stephens, Controlling the Civil Jury: Towards a Functional Model of Justification, 76 Ky. L.J. 81, 105-09 (1987); Robert M. Dudnik, Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74 Yale L.J. 483, 515-16 (1965) (stating that most opinions addressing the use of special verdicts are very broad and communicate only "attitudes, not standards").
36. See Pamela J. Stephens, Controlling the Civil Jury: Towards a Functional Model of Justification, 76 Ky. L.J. 81, 105-09 (1987); Robert M. Dudnik, Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74 Yale L.J. 483, 515-16 (1965) (stating that most opinions addressing the use of special verdicts are very broad and communicate only "attitudes, not standards").
37. See, e.g., Bank of Nova Scotia v. San Miguel, 196 F.2d 950, 959-60 (1st Cir. 1952) (noting that the special verdict has the greatest value in complex cases); Cohen v. Travelers Ins. Co., 134 F.2d 378, 384 (7th Cir. 1943) (observing that special verdicts are not useful where pleadings raise only one issue). But see Samuel M. Driver, The Special Verdict - Theory and Practice, 26 Wash. L. Rev. 21, 25 (1951) (asserting that the special verdict has the least value in complex cases) (article written by district judge).
38. See, e.g., Bank of Nova Scotia v. San Miguel, 196 F.2d 950, 959-60 (1st Cir. 1952) (noting that the special verdict has the greatest value in complex cases); Cohen v. Travelers Ins. Co., 134 F.2d 378, 384 (7th Cir. 1943) (observing that special verdicts are not useful where pleadings raise only one issue). But see Samuel M. Driver, The Special Verdict - Theory and Practice, 26 Wash. L. Rev. 21, 25 (1951) (asserting that the special verdict has the least value in complex cases) (article written by district judge).
39. See Dudnik, supra note 22, at 516-17 (listing undecided issues and referring to the "almost total failure of the courts to develop standards").
40. Most cases are submitted using a general verdict. The reporters, however, show that a variety of possibilities are actually in use. For examples of narrow special issues, see P & L Contractors, Inc. v. American Norit Co., 5 F.3d 133, 136 n.3 (5th Cir. 1993) (illustrating a fractionalized submission of contract claim); Klein v. Sears Roebuck & Co., 773 F.2d 1421, 1426 (4th Cir. 1985) (submitting express warranty, implied warranty, and negligent misrepresentation separately); Thrash v. O'Donnell, 448 F.2d 886, 890 n.11 (5th Cir. 1971); Ratigan v. New York Cent. R.R. Co., 291 F.2d 548, 554 (2d Cir. 1961) (noting factual submission of negligence claims); McDonnell v. Timmerman, 269 F.2d 54, 58 (8th Cir. 1959) (indicating that defendant's negligence, plaintiff's negligence, comparative negligence, and damages were submitted separately); Tillman v. Great Am. Indem. Co., 207 F.2d 588, 591 (7th Cir. 1953) (submitting separate questions regarding speed, control of automobile, lookout, exercise of judgment and skill, causation, damages, and a question regarding the insurance contract); Scarborough v. Atlantic Coast Line R.R. Co., 190 F.2d 935, 937 (4th Cir. 1951) (illustrating a fractionalized submission of fraud claim). For examples of broad form questions, see Bradshaw v. Freightliner Corp., 937 F.2d 197, 200-01 (5th Cir. 1991); Dreiling v. General Electric Co., 511 F.2d 768, 773 (5th Cir. 1975) (submitting negligence, defect, and damages to the jury). For an example of a general verdict with interrogatories, see Thompson v. State Farm Fire & Casualty Co., 34 F.3d 932, 946 app. (10th Cir. 1994).
41. Devitt et al., supra note 21, § 6.03.
42. Duke v. Sun Oil Co., 320 F.2d 853, 864 n.5 (5th Cir. 1963) (stating questions must cover issues tried by consent); Mickey v. Tremco Mfg. Co., 226 F.2d 956, 957 (7th Cir. 1955) (requiring charge to cover all issues pleaded and proved). Anything omitted without objection, however, can be determined by an actual or deemed finding by the trial judge. Fed. R. Civ. P. 49(a).
43. See Stephens, supra note 22, at 105-09.
44. See Wright & Miller, supra note 14, § 2509; see also Gunnar H. Nordbye, Comments on Selected Provisions of the New Minnesota Rules, 36 Minn. L. Rev. 672, 682 (1952) (suggesting that juries not be informed).
45. Jury instructions also contain general procedural instructions for the jury concerning matters such as selecting a presiding juror, communicating with the court, and proper jury conduct. These types of instructions, while important, are beyond the scope of this article.
46. In cases involving comparative fault, the jury might be required to answer an additional question or questions attributing percentages to the various parties.
47. The charge would also need to include definitions of all legally significant terms used in the questions. These definitions might be placed adjacent to the question or in an introductory section.
48. This question combines both plaintiff's theory of negligence and defendant's contributory negligence defense. The jury would have to be properly instructed concerning burden of proof (namely, that a "yes" answer requires proof by a preponderance of the evidence). An alternative format for all of these questions would place the burden of proof and standard of proof within each question through a phrase such as "do you find from a preponderance of the evidence that . . . ."
49. Depending on the law of the jurisdiction in question, the plaintiff may also need a finding that he was less than 50% (or some other percentage) at fault in order to be able to recover anything.
50. Some of these issues will be more significant in state systems that prohibit the judge from commenting on the weight of the evidence than they will be in federal court. Nevertheless, this kind of issue will have to be faced even under the more discretionary federal system. For an example of these kind of issues in a special verdict jurisdiction, see Hyundai Motor Co. v. Chandler, 882 S.W.2d 606 (Tex. Ct. App. 1994). See generally Gus M. Hodges & T. Ray Guy, The Jury Charge in Texas Civil Litigation §§ 11-24 (2d ed. 1988 & Supp. 1997) (discussing issues raised by definitions and instructions).
51. Some of these issues will be more significant in state systems that prohibit the judge from commenting on the weight of the evidence than they will be in federal court. Nevertheless, this kind of issue will have to be faced even under the more discretionary federal system. For an example of these kind of issues in a special verdict jurisdiction, see Hyundai Motor Co. v. Chandler, 882 S.W.2d 606 (Tex. Ct. App. 1994). See generally Gus M. Hodges & T. Ray Guy, The Jury Charge in Texas Civil Litigation §§ 11-24 (2d ed. 1988 & Supp. 1997) (discussing issues raised by definitions and instructions).
52. An inferential rebuttal defense is different from an affirmative defense. Rather than offering an independent reason for the defendant to prevail, an inferential rebuttal defense offers a factual theory of the case that, by inference, makes it impossible for the plaintiff to win. For example, the defendant may claim that the occurrence was caused by an "unavoidable accident," generally denned as some unforeseeable natural condition. This defense actually negates the element of causation, already present in plaintiff's burden of proof, and is in that sense a type of denial. Nevertheless, a number of jurisdictions allow unavoidable accident to be specifically mentioned in a jury charge, and some have let separate questions on unavoidable accident be submitted to the jury. For an example of a state court struggling with whether to include an instruction on unavoidable accident, see Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995), and cases cited therein.
53. I have omitted answer lines from this sample format in the interest of space, but they would be similar to the Yes/No options above.
54. These contributory negligence questions could also be made fact specific. For example, the jury could be asked whether Cleaver was negligent in mowing across a hillside, mowing in bare feet, or whatever. Each factual theory of contributory negligence would then have two questions, one on breach and one on causation. Similarly, if there is a defense that Cleaver modified the mower in a way that is relevant to the defect or warranty claims, those issues could be submitted factually and separately. Notice also how the separate submission of these questions forces the court to make decisions about the order in which the questions should be placed. Acme, for example, might argue that the defensive issues should be placed at the beginning, with instructions not to answer the liability questions if certain defenses are found to exist, rather than toward the end. Rule 49 contains absolutely no direction on issues such as this.
55. Note that because an inferential rebuttal defense negates an element of the plaintiff's claim, plaintiff retains the burden of proof to disprove it. Thus the question needs to be worded in this convoluted fashion to properly place the burden of proof, and plaintiff needs a "yes" answer to win. While the wording problem could be cured by shifting the burden of proof to the defendant, the result of that shift would be simultaneously placing the burden of proof on both parties to prove opposite facts, for example, that Acme was the cause of the occurrence (plaintiff's burden) and was not the cause of the occurrence (defendant's burden).
56. I have not set out a separate example of a general verdict accompanied by interrogatories, the most discretionary of verdict forms. It would look like a general verdict with the addition of a number of questions. Those additional questions could cover all issues and look like either the broad form set or the separate and distinct set. Otherwise, the court has the option of choosing just a few key questions and asking them specifically in addition to the general verdict. Fed. R. Civ. P. 49(b). Note that in case of irreconcilable conflict between the general verdict and the interrogatory answers, the latter control. Id.
57. These examples assume a twelve member jury. There are, of course, jurisdictions in which smaller juries are used in civil cases, and jurisdictions in which a non-unanimous verdict is sufficient. U.S. Dep't of Justice, Bureau of Justice Statistics, State Court Organization 1993, at 274 tbl. 37 (1995). The point remains the same: a general charge allows the requisite number of jurors to rely on different factual or legal bases for their answers.
58. As before, the judge will have to instruct the jury about the meaning of applicable legal terms.
59. See, e.g., Scott Baldwin et al., Art of Advocacy: Jury Instructions (1991) (providing that almost every possible instruction in two versions - plaintiff's instruction and defendant's instruction - covering the same substantive law but with different emphasis).
60. These issues have created serious problems for the federal courts even with the current very limited use of the special verdict. For example, sometimes federal courts are unable to tell a special verdict from a general verdict with interrogatories, Martin, supra note 14, at 697 n.49, have reached conflicting decisions about what to do if the jury's answers conflict, id. at 701; Donald Olander, Note, Resolving Inconsistencies in Federal Special Verdicts, 53 Fordham L. Rev. 1089, 1092-98 (1985), and differ about the requirements for preserving error, Martin, supra note 14, at 727.
61. These issues have created serious problems for the federal courts even with the current very limited use of the special verdict. For example, sometimes federal courts are unable to tell a special verdict from a general verdict with interrogatories, Martin, supra note 14, at 697 n.49, have reached conflicting decisions about what to do if the jury's answers conflict, id. at 701; Donald Olander, Note, Resolving Inconsistencies in Federal Special Verdicts, 53 Fordham L. Rev. 1089, 1092-98 (1985), and differ about the requirements for preserving error, Martin, supra note 14, at 727.
62. For examples of the legal intricacies of preserving error and dealing with conflicting and missing answers when special verdicts are used, see Hodges & Guy, supra note 35, §§ 91-127.
63. The federal courts are split as to whether juries may be informed of the effect of their answers. See Wright & Miller, supra note 14, § 2509. Texas and Wisconsin, states that use special verdicts, have consistently held that the jury may not be so informed. Id.; see, e.g., Grieger v. Vega, 271 S.W.2d 85, 87 (Tex. 1954) (stating jury may not be told effect of its answers).
64. See infra Part III.
65. When the jury is asked mixed questions of law and fact, the court must supply the proper legal definition. See Wright & Miller, supra note 14, § 2506; see also Fed. R. Civ. P. 49(a) ("The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.").
66. Stephen A. Saltzburg, Improving the Quality of Jury Decisionmaking, in Verdict: Assessing the Civil Jury System 341, 360 (Robert E. Litan ed., 1993) [hereinafter Verdict].
67. Dudnik, supra note 22, at 484 n.2; see also Stephen A. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L. Rev. 1867, 1869-71 (1966) (identifying the jury's role as fact-finder).
68. Dudnik, supra note 22, at 484 n.2; see also Stephen A. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L. Rev. 1867, 1869-71 (1966) (identifying the jury's role as fact-finder).
69. It is also not clear whether such an attempt would violate the Seventh Amendment (in federal court) or state constitutional rights to jury trial (in state courts). See Martin B. Louis, Allocating Adjudicative Decision Making Authority Between the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/Jury Question, and Procedural Discretion, 64 N.C. L. Rev. 993, 1008-10 (1986).
70. 275 U.S. 66 (1927).
71. Id. at 70. The Court recognized the problem with such attempts to make ultimate fact findings a question of law when, seven years later, it reversed a directed verdict for defendant railroad and limited Goodman to its facts in Pokora v. Wabash Railway Co., 292 U.S. 98, 106 (1934) ("[W]hat is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury.").
72. Fed. R. Civ. P. 15(b) allows trial amendments to be made freely in the absence of surprise or prejudice.
73. I suppose it would be possible to write an open-ended question like "describe how you think the crash occurred" but that would raise another set of mind boggling questions ranging from the logistical to the legal/jurisprudential. What, for example, if they answer the questions by talking about whose "fault" it was?
74. It is possible that in certain kinds of contract disputes, questions that are more purely factual would be easier to frame. See Nordbye, supra note 29, at 683. For example, if a contract required Seller to deliver 100 widgets to Buyer on June 1, 1995, and Buyer claimed that Seller had delivered only 75 widgets on that date, the jury could be asked, "Do you find from a preponderance of the evidence that Seller failed to deliver 100 widgets on June 1?" Indeed, there is a tradition of treating certain contract issues as questions of law to be decided by the judge rather than the jury, presumably because these commercial issues need more consistency than multiple juries can achieve, or because the democratic jury is not wanted in business cases. See Louis, supra note 51, at 1028 (listing questions of ultimate fact traditionally categorized as "legal"); Weiner, supra note 50, at 1896-1906 (discussing split of authority in commercial cases over whether judge or jury decides the reasonableness or timeliness of commercial conduct). Even in commercial cases, though, many traditional jury decisions require the jury to apply law to fact, and a change to questions only about historical occurrences would change the jury's function.
75. Thomas C. Galligan, Jr., The Louisiana Products Liability Act: Making Sense of it All, 49 La. L. Rev. 629, 641 n.68 (1989).
76. Id.
77. Thomas C. Galligan, Jr., A Primer on the Pattern of Negligence, 53 La. L. Rev. 1509, 1529-32 (1993).
78. Note, however, that among those who argue for greater use of law and economics analysis in jury instructions, some have rejected the idea of questioning the jury in this way. See Stephen G. Gilles, The Invisible Hand Formula, 80 Va. L. Rev. 1015, 1028 (1994) ("No one thinks that cost-benefit analysis in negligence law is, or could be, a rigorous quantitative inquiry into continuous increments of marginal care." (citing Learned Hand's rejection of quantitatively applying the Hand formula in Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. 1949))).
79. Note, however, that among those who argue for greater use of law and economics analysis in jury instructions, some have rejected the idea of questioning the jury in this way. See Stephen G. Gilles, The Invisible Hand Formula, 80 Va. L. Rev. 1015, 1028 (1994) ("No one thinks that cost-benefit analysis in negligence law is, or could be, a rigorous quantitative inquiry into continuous increments of marginal care." (citing Learned Hand's rejection of quantitatively applying the Hand formula in Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. 1949))).
80. See Thomas C. Galligan, Jr., Strict Liability in Action: The Truncated Learned Hand Formula, 52 La. L. Rev. 323, 324 (1991).
81. For a suggested formula to govern a type of antitrust case, see Gary Myers, Litigation as a Predatory Practice, 80 Ky. L.J. 565, 605 (1992) (liability if (1 - s)(xJ + L) + s(1-p)(xJ + L) + s(p)(B) ≥ C + sCd + s(p)(mD + Cp)). In this formula, s = Probability of antitrust claim; p = probability that target would prevail in antitrust case as perceived by predator; x = probability of winning the case; J = anticipated value of money judgment and injunctive relief; L = anticipated marketplace profit from the litigation; B = benefits from predation until final judgment in antitrust case; Cp = cost of target's antitrust claim; Cd = cost of predator's defense of antitrust claim; m=damages multiplier for successful antitrust claim; D = probable antitrust damages suffered by target firm. Id. at 602-05. Note, however, that the author does not recommend submitting this formula as a jury question. Id. at 605.
82. David C. Sobelsohn, Comparing Fault, 60 Ind. L.J. 413, 420 n.58 (1985).
83. See Sandford v. Chevrolet Div. Gen. Motors, 642 P.2d 624, 634-35 & n.19 (Or. 1982). The court suggested that the trial judge could instruct the jury to compare plaintiff's conduct with that of a reasonable person, assigning plaintiff a number on a scale of O to 10 (0 = no negligence; 10 = intent). The jury would then compare defendant's product with a product that would not have been defective, assigning that defective product a number on a scale of 0 to 10. The jury would then add the two numbers, then divide each party's fault number into the total. The result will be each party's percentage of fault.
84. "The court should instruct the jury to consider causation, but only as it affects their assessment of the dangerousness of each party's risk-producing behavior." Sobelson, supra note 63, at 424. "[B]oth culpability and direct causation aid in understanding the magnitude of the risk of dangerous conduct, as well as the cost of avoiding that risk." Id. at 424-25 n.88. In strict liability cases, instructions would also include information about how to define "fault" on the part of the manufacturer. Id. at 431; see also id. at 432-35 (discussing formulas for finding comparative fault in design defect and manufacturing defect cases).
85. It is reasonable to predict, however, that the jury would still get strong clues from the substance of the lawyers' closing arguments and from the testimony in the trial itself.
86. Given the potential significance of the format chosen, one must question the standard conclusion that Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), does not require federal courts to consider state court methods of instructing the jury when trying diversity cases. See Wright & Miller, supra note 14, § 2502 (stating that federal courts have uniformly concluded that state law does not govern whether to use general or special verdict, what questions to submit, the form of the questions submitted, the effect of inconsistent answers, or any other detail of special verdict and interrogatory practice).
87. For a general discussion of the Framers' view of the political significance of the jury, see Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973).
88. See Yeazell, The New Jury, supra note 7, at 117 ("[B]oth those who attack and those who defend the modern jury ought to be clear about the political character of the institution under discussion . . . one cannot simply discuss the jury as if it were an entirely utilitarian institution to be judged by how well it performed a factfinding function.").
89. See Landsman, supra note 6, at 610; Richard O. Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 Mich. L. Rev. 68, 81-82 (1981).
90. See Landsman, supra note 6, at 610; Richard O. Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 Mich. L. Rev. 68, 81-82 (1981).
91. For example, one might applaud the early juries that refused to award no damages to a plaintiff who was one percent negligent but deplore the jury that acquitted the assailants of Rodney King. Jury nullification even in criminal cases also remains extremely controversial. For a sampling of the recent debate on jury nullification in criminal cases, see Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239 (1993); Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997).
92. For example, one might applaud the early juries that refused to award no damages to a plaintiff who was one percent negligent but deplore the jury that acquitted the assailants of Rodney King. Jury nullification even in criminal cases also remains extremely controversial. For a sampling of the recent debate on jury nullification in criminal cases, see Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239 (1993); Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997).
93. For example, one might applaud the early juries that refused to award no damages to a plaintiff who was one percent negligent but deplore the jury that acquitted the assailants of Rodney King. Jury nullification even in criminal cases also remains extremely controversial. For a sampling of the recent debate on jury nullification in criminal cases, see Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239 (1993); Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997).
94. For example, one might applaud the early juries that refused to award no damages to a plaintiff who was one percent negligent but deplore the jury that acquitted the assailants of Rodney King. Jury nullification even in criminal cases also remains extremely controversial. For a sampling of the recent debate on jury nullification in criminal cases, see Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239 (1993); Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997).
95. See Devitt et al., supra note 21, § 6.03 (stating proposition that special verdicts make the law cold and business-like, rather than warm and human); see also Jennifer M. Granholm & William J. Richards, Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury's Role, 26 U. Tol. L. Rev. 505, 536 (1995) (labeling the jury as the "humanitarian custodian of the law"); John H. Wigmore, A Program for the Trial of a Jury Trial, 12 J. Am. Judicature Soc'y 166, 170 (1929) ("The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.").
96. See Devitt et al., supra note 21, § 6.03 (stating proposition that special verdicts make the law cold and business-like, rather than warm and human); see also Jennifer M. Granholm & William J. Richards, Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury's Role, 26 U. Tol. L. Rev. 505, 536 (1995) (labeling the jury as the "humanitarian custodian of the law"); John H. Wigmore, A Program for the Trial of a Jury Trial, 12 J. Am. Judicature Soc'y 166, 170 (1929) ("The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.").
97. See Devitt et al., supra note 21, § 6.03 (stating proposition that special verdicts make the law cold and business-like, rather than warm and human); see also Jennifer M. Granholm & William J. Richards, Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury's Role, 26 U. Tol. L. Rev. 505, 536 (1995) (labeling the jury as the "humanitarian custodian of the law"); John H. Wigmore, A Program for the Trial of a Jury Trial, 12 J. Am. Judicature Soc'y 166, 170 (1929) ("The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.").
98. There is a persistent, if subtle, tendency to associate female imagery with this allegedly non-rational behavior of juries. See, e.g., Edsun R. Sunderland, Verdicts, General and Special, 29 Yale L.J. 253, 258 (1920) (asserting that juries are "as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi"); Olander, supra note 44, at 1089 (analogizing jury processes with "the veil of secrecy"). See generally Gerald Torres & Donald P. Brewster, Judges and Juries: Separate Moments in the Same Phenomenon, 4 Law & Ineq. J. 171, 181-85 (1986) (discussing how female qualities are used to characterize juries).
99. There is a persistent, if subtle, tendency to associate female imagery with this allegedly non-rational behavior of juries. See, e.g., Edsun R. Sunderland, Verdicts, General and Special, 29 Yale L.J. 253, 258 (1920) (asserting that juries are "as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi"); Olander, supra note 44, at 1089 (analogizing jury processes with "the veil of secrecy"). See generally Gerald Torres & Donald P. Brewster, Judges and Juries: Separate Moments in the Same Phenomenon, 4 Law & Ineq. J. 171, 181-85 (1986) (discussing how female qualities are used to characterize juries).
100. There is a persistent, if subtle, tendency to associate female imagery with this allegedly non-rational behavior of juries. See, e.g., Edsun R. Sunderland, Verdicts, General and Special, 29 Yale L.J. 253, 258 (1920) (asserting that juries are "as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi"); Olander, supra note 44, at 1089 (analogizing jury processes with "the veil of secrecy"). See generally Gerald Torres & Donald P. Brewster, Judges and Juries: Separate Moments in the Same Phenomenon, 4 Law & Ineq. J. 171, 181-85 (1986) (discussing how female qualities are used to characterize juries).
101. See Marder, supra note 8, at 1052 (1995); see also ABA/Brookings Symposium, Charting a Future for the Civil Jury System 9 (1992) ("[T]he standards used to resolve disputes on public standards are based on the community's sense of justice."); Alexis de Tocqueville, Democracy in America 272 (J.P. Mayer ed. & George Lawrence trans., 13th ed., Doubleday & Co. 1969) (1850) (discussing role of American jury); Jonathan D. Casper, Restructuring the Traditional Civil Jury: The Effects of Changes in Composition and Procedures, in Verdict, supra note 49, at 414, 450 (stating that legal concepts are not state of nature questions).
102. See Marder, supra note 8, at 1052 (1995); see also ABA/Brookings Symposium, Charting a Future for the Civil Jury System 9 (1992) ("[T]he standards used to resolve disputes on public standards are based on the community's sense of justice."); Alexis de Tocqueville, Democracy in America 272 (J.P. Mayer ed. & George Lawrence trans., 13th ed., Doubleday & Co. 1969) (1850) (discussing role of American jury); Jonathan D. Casper, Restructuring the Traditional Civil Jury: The Effects of Changes in Composition and Procedures, in Verdict, supra note 49, at 414, 450 (stating that legal concepts are not state of nature questions).
103. See Marder, supra note 8, at 1052 (1995); see also ABA/Brookings Symposium, Charting a Future for the Civil Jury System 9 (1992) ("[T]he standards used to resolve disputes on public standards are based on the community's sense of justice."); Alexis de Tocqueville, Democracy in America 272 (J.P. Mayer ed. & George Lawrence trans., 13th ed., Doubleday & Co. 1969) (1850) (discussing role of American jury); Jonathan D. Casper, Restructuring the Traditional Civil Jury: The Effects of Changes in Composition and Procedures, in Verdict, supra note 49, at 414, 450 (stating that legal concepts are not state of nature questions).
104. See Marder, supra note 8, at 1052 (1995); see also ABA/Brookings Symposium, Charting a Future for the Civil Jury System 9 (1992) ("[T]he standards used to resolve disputes on public standards are based on the community's sense of justice."); Alexis de Tocqueville, Democracy in America 272 (J.P. Mayer ed. & George Lawrence trans., 13th ed., Doubleday & Co. 1969) (1850) (discussing role of American jury); Jonathan D. Casper, Restructuring the Traditional Civil Jury: The Effects of Changes in Composition and Procedures, in Verdict, supra note 49, at 414, 450 (stating that legal concepts are not state of nature questions).
105. See Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev. 47, 58-59 (1977); Marcus, supra note 8, at 782 (noting that the need to apply community standards makes a jury decision more accurate than a decision by a judge); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law & Contemp. Probs., Autumn 1980, at 51, 69 ("Civil jurors . . . must often decide how the parties ought to have acted, or how a reasonable person would have acted, under the circumstances. This judgment requires a policy decision - not just an evaluation of the facts.").
106. See Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev. 47, 58-59 (1977); Marcus, supra note 8, at 782 (noting that the need to apply community standards makes a jury decision more accurate than a decision by a judge); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law & Contemp. Probs., Autumn 1980, at 51, 69 ("Civil jurors . . . must often decide how the parties ought to have acted, or how a reasonable person would have acted, under the circumstances. This judgment requires a policy decision - not just an evaluation of the facts.").
107. See Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev. 47, 58-59 (1977); Marcus, supra note 8, at 782 (noting that the need to apply community standards makes a jury decision more accurate than a decision by a judge); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law & Contemp. Probs., Autumn 1980, at 51, 69 ("Civil jurors . . . must often decide how the parties ought to have acted, or how a reasonable person would have acted, under the circumstances. This judgment requires a policy decision - not just an evaluation of the facts.").
108. Albert J. Moore, Trial by Schema: Cognitive Filters in the Courtroom, 37 UCLA L. Rev. 273, 284 (1989).
109. See generally W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture 162 (1981) (theorizing that jurors use experience to evaluate evidence).
110. Mark Cammack, In Search of the Post-Positivist Jury, 70 Ind. L.J. 405, 462 (1995).
111. Id. at 467; see also James A. Holstein, Jurors' Interpretations and Jury Decision Making, 9 Law & Hum. Behav. 83 (1985) (stating jurors' own mental filters affect their understanding of evidence).
112. Id. at 467; see also James A. Holstein, Jurors' Interpretations and Jury Decision Making, 9 Law & Hum. Behav. 83 (1985) (stating jurors' own mental filters affect their understanding of evidence).
113. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 Cardozo L. Rev. 519, 530-31 (1991) [hereinafter Pennington & Hastie, Cognitive Theory]. For further examples of their work, see Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. of Personality & Soc. Psychol. 242 (1986); Nancy Pennington & Reid Hastie, Practical Implications of Psychological Research on Juror and Jury Decision Making, 16 Personality & Soc. Psychol. Bull. 90 (1990).
114. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 Cardozo L. Rev. 519, 530-31 (1991) [hereinafter Pennington & Hastie, Cognitive Theory]. For further examples of their work, see Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. of Personality & Soc. Psychol. 242 (1986); Nancy Pennington & Reid Hastie, Practical Implications of Psychological Research on Juror and Jury Decision Making, 16 Personality & Soc. Psychol. Bull. 90 (1990).
115. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 Cardozo L. Rev. 519, 530-31 (1991) [hereinafter Pennington & Hastie, Cognitive Theory]. For further examples of their work, see Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. of Personality & Soc. Psychol. 242 (1986); Nancy Pennington & Reid Hastie, Practical Implications of Psychological Research on Juror and Jury Decision Making, 16 Personality & Soc. Psychol. Bull. 90 (1990).
116. "Coverage" of the evidence refers to the extent to which the story accounts for all the evidence. Pennington & Hastie, Cognitive Theory, supra note 80, at 527-28.
117. Id. at 528.
118. See Holstein, supra note 79, at 84-85.
119. See id.
120. See Granholm & Richards, supra note 72, at 542.
121. See, e.g., Kenneth S. Bordens & Irwin A. Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on Jury Decisions, 73 Judicature 22, 27 (1989) (studying the impact of different types of bifurcation on juries).
122. The question of which format best lends itself to "accurate" outcomes will be considered in part IV.A, infra. 88. See Haddon, supra note 8, at 87 (advocating for a jury process that involves "authentic representation, meaningful communication, and deliberative accountability" and valuing the jury as representing the community's values). This also underscores the crucial importance of assuring that jury composition mirrors the diversity of the community. Id. at 99-101; see sources cited supra note 8.
123. For example, in a negligence claim the question would include both primary negligence and comparative negligence defenses, would include both breach and causation, and would not use "definitions" that were fact specific. See supra Part II.
124. See, for example, the sample separate and distinct charge supra part II.
125. Combining specific questions with a general verdict, as permitted by Rule 49(b), does not solve the problem. Although the jury renders a general verdict in addition to answering specific questions, the use of the questions may influence even deliberation on the general verdict by isolating specific elements for separate consideration. And the specific interrogatories have all the same problems as the special verdict in isolation. In addition, if the answers to the general verdict question conflict with the answers to specific questions, the judgment is to be based on the interrogatory answers rather than the general verdict.
126. See Higginbotham, supra note 75, at 58 ("The jury serves as a check upon the judge's power in each case.").
127. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169, 1174 (1995); see also Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 999 (1987) ("The jury provides the counterforce of several lay people to the single, powerful, trial judge.").
128. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169, 1174 (1995); see also Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 999 (1987) ("The jury provides the counterforce of several lay people to the single, powerful, trial judge.").
129. Yeazell, The New Jury, supra note 7, at 112-13 (citations omitted).
130. Weiner, supra note 50, at 1867.
131. See Louis, supra note 51, at 994-98 (discussing the law/fact distinction and standard of review as methods of allocating power between trial and appellate courts).
132. See Dudnik, supra note 22, at 485-86 (suggesting that juries choose to make specific fact findings to avoid personal punishment through attaint process).
133. Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 31 F.R.D. 617, 618-19 (1963).
134. Compare a generic question with a general definition of product defect - for example, "Do you find that the widget was defective?" - with a more specific approach - for example, "Do you find that the lack of a ZZ Device on the throttle made the widget defective?"
135. For a fuller example, see supra part II.
136. See, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993) (requiring "extreme risk" as a matter of law before duty exists).
137. See, e.g., Twyman v. Twyman, 855 S.W.2d 619, 626 n.21 (Tex. 1993) (defining existence of extreme and outrageous behavior as a question of law (citing Restatement (Second) Torts § 46, cmt. h (1965))).
138. Having converted an issue to a question of law, the jury will be removed from the decisionmaking process completely and the appellate court can review the trial court's decision de novo. This practice would therefore also cause a shift of power from the trial courts to the appellate courts.
139. At the time the Constitution was being debated, for example, the Antifederalists believed that judges would naturally favor litigants that were part of the ruling elite. See Alan Howard Scheiner, Note, Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power, 91 Colum. L. Rev. 142, 152-53 (1991).
140. Catharine Pierce Wells, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 Mich. L. Rev. 2348, 2378 (1990). For another analysis of the role of community standards in decisionmaking, see Jay Tidmarsh, A Process Theory of Torts, 51 Wash. & Lee L. Rev. 1313 (1994).
141. Catharine Pierce Wells, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 Mich. L. Rev. 2348, 2378 (1990). For another analysis of the role of community standards in decisionmaking, see Jay Tidmarsh, A Process Theory of Torts, 51 Wash. & Lee L. Rev. 1313 (1994).
142. Wells, supra note 105, at 2382. Another way of explaining the function of the jury, under this view, is: "[F]irst, the jury determines the fact that defendant did x; second, the judge provides a rule such as 'x gives rise to tort liability'; and third, the jury, possessing both a fact and a rule, mechanically draws the conclusion that the defendant is liable for damages." Id. at 2387.
143. Id. at 2379.
144. Anecdotal evidence exists of particular juries doing things that people regard as irrational, some of which is apocryphal and some of which is later shown to be perfectly rational. See, e.g., Climbing on Board, A.B.A. J., Aug. 1997, at 12 (describing apocryphal but oft-repeated story of "frivolous litigation"). No real or simulated studies exist, as far as I know, that are able to match jury verdicts against stipulated facts and legal conclusions.
145. Galanter, The Civil Jury, supra note 6, at 206; see Valerie P. Hans & Neil Vidmar, Judging the Jury 49-71 (1986); Rita J. Simon, The Jury: Its Role in American Society 49-71 (1980); see also Clermont & Eisenberg, supra note 11, at 1151-52 (comparing judge and jury outcomes); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118, 124 (1992) ("In summary, aggregate empirical evidence drawn from multiple sources lends no support to claims that juries are consistently pro-plaintiff, incompetent, or deliver unjustifiably generous awards.").
146. Galanter, The Civil Jury, supra note 6, at 206; see Valerie P. Hans & Neil Vidmar, Judging the Jury 49-71 (1986); Rita J. Simon, The Jury: Its Role in American Society 49-71 (1980); see also Clermont & Eisenberg, supra note 11, at 1151-52 (comparing judge and jury outcomes); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118, 124 (1992) ("In summary, aggregate empirical evidence drawn from multiple sources lends no support to claims that juries are consistently pro-plaintiff, incompetent, or deliver unjustifiably generous awards.").
147. Galanter, The Civil Jury, supra note 6, at 206; see Valerie P. Hans & Neil Vidmar, Judging the Jury 49-71 (1986); Rita J. Simon, The Jury: Its Role in American Society 49-71 (1980); see also Clermont & Eisenberg, supra note 11, at 1151-52 (comparing judge and jury outcomes); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118, 124 (1992) ("In summary, aggregate empirical evidence drawn from multiple sources lends no support to claims that juries are consistently pro-plaintiff, incompetent, or deliver unjustifiably generous awards.").
148. Galanter, The Civil Jury, supra note 6, at 206; see Valerie P. Hans & Neil Vidmar, Judging the Jury 49-71 (1986); Rita J. Simon, The Jury: Its Role in American Society 49-71 (1980); see also Clermont & Eisenberg, supra note 11, at 1151-52 (comparing judge and jury outcomes); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118, 124 (1992) ("In summary, aggregate empirical evidence drawn from multiple sources lends no support to claims that juries are consistently pro-plaintiff, incompetent, or deliver unjustifiably generous awards.").
149. Galanter, The Civil Jury, supra note 6, at 206; see Valerie P. Hans & Neil Vidmar, Judging the Jury 49-71 (1986); Rita J. Simon, The Jury: Its Role in American Society 49-71 (1980); see also Clermont & Eisenberg, supra note 11, at 1151-52 (comparing judge and jury outcomes); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118, 124 (1992) ("In summary, aggregate empirical evidence drawn from multiple sources lends no support to claims that juries are consistently pro-plaintiff, incompetent, or deliver unjustifiably generous awards.").
150. See Harry Kalven, Jr., The Dignity of the Civil Jury, 50 Va. L. Rev. 1055, 1065 (1964).
151. Shari Diamond compiled for comparison a set of representative studies of consistency among judges faced with complex clinical judgments in individual cases where the decisionmaker had to "evaluate and combine incomplete or potentially unreliable information to reach a decision." See Galanter, The Civil Jury, supra note 6, at 215 n.73 (quoting Shari Seidman Diamond, Order in the Court: Consistency in Criminal-Court Decisions, in Psychology and the Law 119, 124-25 (C. James Scheirer 6 Barbara L. Hammonds eds., 1983)). She found the following: Interjudge Consistency in Complex Human Judgments Rate of agreement between 2 Decision makers Stimulus Decision judges (%) NSF versus NAS peer 150 grant proposals To fund or not to fund (half 75 reviewers submitted to NSF funded by NSF) 7 employment interviewers 10 job applicants Ranked in top 5 or in 70 bottom 5 4 experienced psychiatrists 153 patients interviewed Psychosis, neurosis, 70 twice, once by each of two character disorder psychiatrists 21-23 practicing physicians 3 patient-actors with Diagnosis: correct or 67,77,70 presenting symptoms incorrect (Doctors could request Probability of agreement 55,65,57 further information and (both correct or both receive test results.) incorrect) 3576 judge-jury pairs 3576 jury trials Guilty or not guilty 78 12 federal judges 460 presentence reports (at Custody or no custody 80 sentencing council) 8 federal judges 439 presentence reports (at Custody or no custody 79 sentencing council) Id. (footnotes omitted).
152. Shari Diamond compiled for comparison a set of representative studies of consistency among judges faced with complex clinical judgments in individual cases where the decisionmaker had to "evaluate and combine incomplete or potentially unreliable information to reach a decision." See Galanter, The Civil Jury, supra note 6, at 215 n.73 (quoting Shari Seidman Diamond, Order in the Court: Consistency in Criminal-Court Decisions, in Psychology and the Law 119, 124-25 (C. James Scheirer 6 Barbara L. Hammonds eds., 1983)). She found the following: Interjudge Consistency in Complex Human Judgments Rate of agreement between 2 Decision makers Stimulus Decision judges (%) NSF versus NAS peer 150 grant proposals To fund or not to fund (half 75 reviewers submitted to NSF funded by NSF) 7 employment interviewers 10 job applicants Ranked in top 5 or in 70 bottom 5 4 experienced psychiatrists 153 patients interviewed Psychosis, neurosis, 70 twice, once by each of two character disorder psychiatrists 21-23 practicing physicians 3 patient-actors with Diagnosis: correct or 67,77,70 presenting symptoms incorrect (Doctors could request Probability of agreement 55,65,57 further information and (both correct or both receive test results.) incorrect) 3576 judge-jury pairs 3576 jury trials Guilty or not guilty 78 12 federal judges 460 presentence reports (at Custody or no custody 80 sentencing council) 8 federal judges 439 presentence reports (at Custody or no custody 79 sentencing council) Id. (footnotes omitted).
153. Kalven, supra note 110, at 1065-66.
154. Marcus, supra note 8, at 782 ("[T]welve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge." (quoting Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 664 (1873))).
155. Peter Watson, The Search for Justice - A Case for Reform to the Civil Justice System in Britain, 2 ILSA J. Int'l & Comp. L. 453, 457 (1996).
156. This assumption, of course, is questionable. See supra notes 112-14 and accompanying text.
157. As noted supra notes 88-89 and accompanying text, separate and distinct format will make it far more difficult for juries who want a particular party to win, or who wish to reach a non-legal but "just" result, to answer the questions so as to achieve the outcome they desire.
158. This decision, of course, would work a dramatic change in the role of the jury as we know it, but it would increase the judge's power to determine the outcome of a case tried to a jury.
159. See, e.g., Saltzburg, supra note 49, at 360 (stating special verdicts focus on facts and are easier for jurors to understand);
160. Robert W. Stayton, Texas' Approach to the Parker Ideal and Her Shortcomings, 37 Tex. L. Rev. 845, 855 (1959) (stating special verdicts are less perplexing guides to juries).
161. Both can be written in ways that increase or decrease a jury's ability to understand them. Various improvements in word choice, sentence length, sentence structure, and syntax can improve juror understanding. See Elwork et al., supra note 9, at 165-69;
162. Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L. Rev. 37, 46-52 (1993). In addition, comprehension can improve if each juror is given written copies of the charge, rather than merely reading the charge to the jury orally. See Reid Hastie et al., Inside the Jury 231 (1983). This, too, can be done with either a general or special charge.
163. Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L. Rev. 37, 46-52 (1993). In addition, comprehension can improve if each juror is given written copies of the charge, rather than merely reading the charge to the jury orally. See Reid Hastie et al., Inside the Jury 231 (1983). This, too, can be done with either a general or special charge.
164. For an example, see questions in the sample "separate and distinct" charge in supra part II. For a general discussion of the systemic forces that tend to cause judges to write jury instructions that are hard to understand, see Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C. L. Rev. 77, 98-105 (1988).
165. See Christopher N. May, "What Do We Do Now?": Helping Juries Apply the Instructions, 28 Loy. L.A. L. Rev. 869, 884-86 (1995) (recommending specific sequential instructions).
166. See sources cited supra notes 76-86. The same problem occurs when the specific questions accompany a general verdict as permitted by Rule 49(b).
167. See, e.g., Charrow & Charrow, supra note 9, at 1311 (describing research on juror comprehension of instructions); Steele & Thornburg, supra note 120, at 88-92 (same).
168. Granholm & Richards, supra note 72, at 531.
169. Note, for example, that Pennington, Penrod, and Hastie's study reported that during jury deliberations "[a] substantial proportion of the discussion made simultaneous reference to both facts and legal issues." Hastie et al., supra note 119, at 97.
170. Federal experience would also tend to make one skeptical that either the Rule 49(a) special verdicts or the Rule 49(b) general verdict accompanied by interrogatories improves juror comprehension, and thereby improves accuracy. See, for example, the cases cited for internally inconsistent verdicts in Martin, supra note 14, at 700-04 nn.56-72.
171. See, e.g., Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 260 (Tex. 1974) (jurors misunderstood judge's charge regarding "undue influence"); Compton v. Henrie, 364 S.W.2d 179, 183 (Tex. 1963) (juror confused reasonable doubt standard with preponderance of evidence standard); Martin v. United States Trust Co., 690 S.W.2d 300, 309 (Tex. App. 1985) (jurors misunderstood judge's charge regarding "undue influence"); Hoffman v. Deck Masters, Inc., 662 S.W.2d 438, 443 (Tex. App. 1983) (jurors misunderstood damage instruction); Cortez v. Medical Protective Co. of Fort Wayne, Ind., 560 S.W.2d 132, 135 (Tex. Civ. App. 1977) (jurors inferred "consent" in disregard of court's instructions); Norman v. First Bank & Trust, 557 S.W.2d 797, 803-04 (Tex. Civ. App. 1977) (juror stated his erroneous interpretation of court's charge to other juror); Coakley v. Crow, 457 S.W.2d 431, 435 (Tex. Civ. App. 1970) (jurors did not understand and wrongfully applied the definition of actual notice contained in court's charge). Because for a long time Texas permitted parties to introduce evidence of conversations in the jury room (as distinct from juror "mental processes"), there is a substantial body of case law demonstrating the jurors' misunderstanding of the jury charge. See Jack Pope, The Mental Operations of Jurors, 40 Tex. L. Rev. 849, 851-52 (1962). This, combined with the Texas special verdict practice, makes it a good source of empirical evidence regarding the impact of the special verdict. It must be noted, though, that Texas took special verdict practice to an extreme that is permitted but not required by Rule 49(a). Even today, when the practice has been substantially liberalized, it requires whole books to explain in detail what the questions should be like, what the instructions should be like, how to preserve error, what to do with omissions, what to do with apparent conflicts, and the like. See Hodges & Guy, supra note 35 (the successor to Gus M. Hodges, Special Issue Submission in Texas (1959), which was the practitioner's Bible in this inscrutable area for years).
172. Whited v. Powell, 285 S.W.2d 364, 367-68 (Tex. 1956). In Whited, the jury was asked "whether the defendant discovered that plaintiffs were in a position of peril within such time and distance that by the exercise of ordinary care and the use of all means at his hand consistent with the safety of himself, his passenger and his automobile, he [defendant] could have avoided the collision in question." Id. at 365. During deliberations one juror opined to the others that this question required a finding of deliberate misconduct: "We can't answer that 'Yes'; if we do it will be saying this boy is the same as a murderer. I won't vote to make a criminal of the boy." Id. Another juror, based upon the erroneous statement by the first juror, changed his vote. The Texas Supreme Court categorized this as "express misconstruction of the court's charge" but held that such misunderstanding is not grounds for new trial. Id. at 367.
173. Casper, supra note 74, at 450.
174. See Marcus, supra note 8, at 782 (stating that the application of laws that incorporate community standards require consideration and understanding of a wide variety of circumstances, including those giving rise to the out of court event that precipitates the litigation).
175. This "process" issue is necessarily related to the "political function" issue discussed above. A system of jury submission that increases the jury's power to decide how to decide naturally increases the power of the jury. By doing so it increases the power of lay people in the community as compared to the legal professionals. One might fear that this view of the jury system will result in unpredictable results. This will only be true if juries in a community tend to vary widely in their understanding of community standards. Even if it does increase uncertainty, "as normative propositions, rationality and predictability are not the only goals of the civil justice system. The sense of justice that emerges from the community is also critical to a civil justice system that is likely to endure and produce outcomes acceptable to the community at large." Casper, supra note 74, at 451.
176. See Dudnik, supra note 22, at 491 (citing arguments made by special verdict proponents).
177. See supra notes 118-28 and accompanying text.
178. See Devitt et al., supra note 21, § 6.03 ("[T]he use of special verdicts is not a panacea for the defects of the general verdict."); Driver, supra note 23, at 24-25 ("Juries seem to have more trouble reaching an agreement on special verdicts."). Note also that the general verdict accompanied by interrogatories by its very nature requires questions to be answered more than once, which seems likely to increase the time required for deliberations.
179. Accord and satisfaction is defined as "compromise and settlement." See Bryan A. Garner, Dictionary of Modern Legal Usage 15 (1995) ("An accord is an agreement to substitute for an existing debt or obligation some alternative form of discharging that debt; a satisfaction is the actual discharge of the debt by the substituted means. . . . Any claim . . . may be discharged by an accord and satisfaction.") (emphases omitted).
180. See supra notes 124-25 and accompanying text; see also Dudnik, supra note 22, at 495 n.50 (discussing interrelationship of jury's answers on different issues).
181. See, e.g., Hodges & Guy, supra note 35, §§ 17, 20, 24 (reviewing definitions of legal or technical terms, instructions that "tilt" or "nudge" jury, general considerations in the drafting and placement of jury instructions).
182. This is also true of the general verdict with interrogatories, the structure of which actually requires the jury to answer the same question multiple times and therefore maximizes the potential for answers which conflict internally. Other types of charges, absent inferential rebuttal questions, would ask each question once if properly drafted.
183. See John R. Brown, Federal Special Verdicts: The Doubt Eliminator, 44 F.R.D. 338, 350; see also Dudnik, supra note 22, at 511-13 (noting the intricate problems of reconciling answers).
184. See John R. Brown, Federal Special Verdicts: The Doubt Eliminator, 44 F.R.D. 338, 350; see also Dudnik, supra note 22, at 511-13 (noting the intricate problems of reconciling answers).
185. Despite instructions to the contrary, juries do leave questions unanswered. See Hodges & Guy, supra note 35, § 122; Wright & Miller, supra note 14, § 2510.
186. In at least some jurisdictions, however, the judge clarifies at his peril, because the appellate court might reverse the case if it finds that the judge's further instructions were a comment on the weight of the evidence. For such a case, see Teaney v. City of St. Joseph, 548 S.W.2d 254, 255-56 (Mo. Ct. App. 1977).
187. Current case law provides some evidence that the federal courts already have problems dealing with the technical aspects of special verdicts, even when they are infrequently used. For example, federal courts are confused about the difference between a special verdict under Rule 49(a) and a general verdict with interrogatories under Rule 49(b). See Brown, supra note 139, at 339-40; Wright & Miller, supra note 14, § 2501, at 151 n.1. Federal courts are also inconsistent in their treatment of conflicting answers and the requirements for preservation of error. Id. §§ 2508, 2510.
188. For information on appellate caseloads, see generally Administrative Office of the U.S. Courts, Federal Judicial Workload Statistics (1993) (providing statistics for federal courts); Conference of State Court Admins, et al., State Court Caseload Statistics, 1994 (1995) (providing statistics for state courts).
189. There might also be a time saving from the perspective of a decreased need to remand. Because this actually impacts the trial court, it is discussed in part IV.B.3, infra.
190. See Nordbye, supra note 29, at 684 ("[T]he history of [special verdict] practice in the [s]tates which have followed it [shows that] reversals and mistrials . . . appear to be fully as many as in trials where a general verdict is returned.").
191. As discussed above, this may be even more likely in the more technical special verdict format.
192. See Wright & Miller, supra note 14, § 2558.
193. The court of appeals examines the error in the charge in light of the charge as a whole to determine whether there is reversible error. See id. 149. Occasionally, federal courts are willing to examine more than just the charge itself in order to determine whether the error was harmless. This could occur, for example, if the erroneous portion of the charge concerns an issue that played a very minor role at trial or if the evidence is overwhelmingly in favor of the verdict. See id. 150. See infra part IV.B.3 for a discussion of whether an error needs to be considered when other parts of the charge are legally correct and supported by sufficient evidence.
194. A variant on this situation would occur when multiple issues are raised by appellant but the court's disposition of some issues demonstrates the existence of an error-free theory that provides a ground for affirmance and makes the other issues immaterial.
195. For example, in a products liability case such as the Cleaver hypothetical, the same or similar facts will be relevant to the negligence claims, the strict liability claims, and the breach of warranty claim. Similarly, the legal concepts of breach of duty in the negligence claim; the comparison of risk and utility in the strict liability claim; and the warranty question of whether a product was fit for the ordinary purpose for which that product is used are all functionally related. It seems unlikely in such a situation that a problematic issue will uniquely affect one claim.
196. I am indebted to my colleague Bill Dorsaneo for raising and discussing with me the issue of appellate disposition of partially flawed jury cases, and for sharing with me his case file on standard of review. See William V. Dorsaneo, III, Broad-Form Submission of Jury Questions and the Standard of Review, 46 SMU L. Rev. 601 (1992).
197. See Brown, supra note 139, at 341-42; Wright, supra note 19, at 202.
198. See supra Part IV.B.2.
199. This also leaves aside for now the question of weighing an efficiency gain from fewer remands against the other policy considerations involved in decisions about the jury charge.
200. Fed. R. Evid. 606(b). Studies have also shown that juror accounts of their own behavior are not completely reliable. See Robert G. Nieland, Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System 24-25 (1979).
201. Fed. R. Evid. 606(b). Studies have also shown that juror accounts of their own behavior are not completely reliable. See Robert G. Nieland, Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System 24-25 (1979).
202. Assume further that the identified flaw in Claim B is the only error alleged.
203. On the other hand, the court of appeals could value efficiency more highly even in general verdict cases. It might decide that as long as an error-free theory supporting the verdict can be traced though the pleadings, evidence, and jury charge, the case should be affirmed. A court system taking this position would affirm the case with legally flawed Claim B, and the special verdict would not create efficiency gains. Reversal would be required only when harmful error existed as to each theory that could support the verdict.
204. See, for example, the sample charge, supra part II.
205. See Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962).
206. See Griffin v. United States, 502 U.S. 46, 59 (1991) ("Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law . . . . Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.") (citations omitted).
207. See Bone v. Refco, Inc., 774 F.2d 235, 242 (8th Cir. 1985); Neubauer v. City of McAllen, 766 F.2d 1567, 1575 (5th Cir. 1985); Collis v. Ashland Oil and Ref. Co., 722 F.2d 625, 627 (10th Cir. 1983); Avins v. White, 627 F.2d 637, 646 (3d Cir. 1980).
208. Asbill v. Housing Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1504 (10th Cir. 1984) (quoting E.I. du Pont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 1258 (8th Cir. 1980)); see also Jordan v. Paccar, Inc., 37 F.3d 1181 (6th Cir. 1994) (holding harmless an error in explaining law where directed verdict would have been proper); Kirschner v. Broadhead, 671 F.2d 1034, 1040 (7th Cir. 1982) (stating it is prejudicial error for the court to give instructions unsupported by evidence unless the record shows error clearly harmless); Collum v. Butler, 421 F.2d 1257, 1260 (7th Cir. 1970) (examining entire record, including opening statements, evidence, and closing arguments and concluding that "[t]o permit . . . issues which occupied positions of . . . relative insignificance in the trial to be treated now as so important as to make their submission to the jury prejudicial would not serve the interest of justice").
209. Traver v. Meshriy, 627 F.2d 934, 938-39 (9th Cir. 1980).
210. See Syufy Enters, v. American Multicinema, Inc., 793 F.2d 990, 1002 (9th Cir. 1986) (recognizing but not resolving difference between law and fact); Brocklesby v. United States, 767 F.2d 1288, 1294 (9th Cir. 1985) (stating that judgment must be reversed if any theory is legally defective).
211. See McGrath v. Zenith Radio Corp., 651 F.2d 458, 464 (7th Cir. 1981) (stating that, to win an appeal, defendant must show that none of plaintiff's theories would support a judgment); Cross v. Ryan, 124 F.2d 883 (7th Cir. 1941) ("[I]f there is substantial evidence to sustain any one count in favor of each plaintiff, the general verdict must be upheld.").
212. See Walter W. Jones, Jr., Annotation, Sufficiency of Evidence as Question of Federal or State Law in Diversity Action, 10 A.L.R. Fed. 451 (1996).
213. The two-issue rule has been followed in at least the following cases: Larriva v. Widmer, 415 P.2d 424 (Ariz. 1966); Berger v. Southern Pac. Co., 300 P.2d 170 (Cal. Dist. Ct. App. 1956); Knight Realty Co. v. Caserta, 10 A.2d 597 (Conn. 1939); Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181, 1185-86 (Fla. 1977); Olson v. Kelly Coal Co., 86 N.B. 88 (Ill. 1908); Harper v. Henry, 169 N.E.2d 20 (Ohio App. 1959); Todd v. South Carolina Farm Bureau Mut. Ins. Co., 336 S.E.2d 472, 473-74 (S.C. 1985); Tennessee Cent. Ry. Co. v. Umenstetter, 291 S.W. 452 (Tenn. 1927); Barson v. E.R. Squibb & Sons, 682 P.2d 832 (Utah 1984); Keller v. Hartman, 333 S.E.2d 89 (W. Va. 1985). The application of the rule sometimes depends on whether appellant has preserved error by requesting a special rather than general verdict. See Colonial Stores, 355 So. 2d at 1186.
214. Changes in standard of review can also shift power between the trial courts and courts of appeals. See Louis, supra note 51, at 993-97. If changes in verdict format change the types of issues the court of appeals is willing to review, that, too, will shift control between trial and appellate courts.
215. To the extent that it takes more time to draft a charge in special verdict format than to draft a general charge, the trial court also loses some efficiency from the special verdict process. This loss must be offset against the potential but uncertain efficiency gain in avoiding remand.
216. Skidmore v. Baltimore & Ohio R.R. Co., 167 F.2d 54, 61 (2d Cir. 1948) ("The general verdict enhances, to the maximum, the power of appeals to the biases and prejudices of the jurors, and usually converts into a futile ritual the use of stock phrases about dispassionateness almost always included in judges' charges.").
217. Bordens & Horowitz, supra note 86, at 25-27.
218. See supra notes 88-91 and accompanying text.
219. The recent study by Professors Clermont and Eisenberg, for example, shows judges to be more pro-plaintiff than juries in certain classes of cases. See Clermont & Eisenberg, supra note 11, at 1126.
220. See Developments in the Law: The Civil Jury, 110 Harv. L. Rev. 1408, 1427 n.39 (1997) (quoting Edward Felsenthal, Juries Display Less Sympathy in Injury Claims, Wall St. J., Mar. 21, 1994, at B1 (discussing a study demonstrating that civil juries have become less sympathetic to plaintiffs since the 1980s: "Some evidence exists to suggest that 'powerful and deep-pocketed advocates of reform have spread their message so successfully in the media that juries have changed their behavior.'")).
221. See Developments in the Law: The Civil Jury, 110 Harv. L. Rev. 1408, 1427 n.39 (1997) (quoting Edward Felsenthal, Juries Display Less Sympathy in Injury Claims, Wall St. J., Mar. 21, 1994, at B1 (discussing a study demonstrating that civil juries have become less sympathetic to plaintiffs since the 1980s: "Some evidence exists to suggest that 'powerful and deep-pocketed advocates of reform have spread their message so successfully in the media that juries have changed their behavior.'")).
222. It is more accurate to say that it disfavors the party with the burden of proof, or the party who seeks to disturb the status quo. Stated conversely, the general verdict favors the party with the burden of proof.
223. Hodges & Guy, supra note 35, § 36. There is also, however, a disadvantage to the plaintiff because the plaintiff has only a single chance to win. One defendant answer completely eliminates plaintiff's case. The fact that the burden of proof rests with plaintiff, so that defendant can prevail without proving anything, leaves the general verdict advantage a qualified one.
224. Granholm & Richards, supra note 72, at 532; see Norman J. Wiener, Simple Lessons from a Complex Case, Litig., Spring 1986, at 14, 16 ("For defendants, there is another, less noble, but important, reason for using a special-verdict: It can give a defendant a lot of chances to win.").
225. See Thomas W. Church, Jr. et al., Pretrial Delay: A Review and Bibliography 12 (1978) (asserting that civil defendants benefit from delay); Paul R.J. Connolly & Saundra Smith, The Litigant's Perspective on Delay: Waiting for the Dough, 8 Just. Sys. J. 271, 276 (1983) (suggesting that plaintiffs are more likely to suffer from financial and emotional pressure during pendency of lawsuit).
226. See Thomas W. Church, Jr. et al., Pretrial Delay: A Review and Bibliography 12 (1978) (asserting that civil defendants benefit from delay); Paul R.J. Connolly & Saundra Smith, The Litigant's Perspective on Delay: Waiting for the Dough, 8 Just. Sys. J. 271, 276 (1983) (suggesting that plaintiffs are more likely to suffer from financial and emotional pressure during pendency of lawsuit).
227. Institutional defendants and their insurers, at least, are more apt to be repeat litigants and to employ lawyers experienced in dealing with the types of issues involved in the litigation. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95, 97, 114-19 (1974) (describing advantages that those who are repeatedly involved in litigation enjoy over the occasional participant); Kenneth W. Graham, Jr., The Persistence of Progressive Proceduralism, 61 Tex. L. Rev. 929, 939 (1983) (reviewing Julius Byron Levine, Discovery: A Comparison Between English and American Civil Discovery Law with Reform Proposals (1982)) ("[I]ncreasing [procedural] complexity . . . makes it much more likely that the outcome of the case will be determined by the relative skills of the lawyers in manipulating the rules. . . .").
228. Institutional defendants and their insurers, at least, are more apt to be repeat litigants and to employ lawyers experienced in dealing with the types of issues involved in the litigation. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95, 97, 114-19 (1974) (describing advantages that those who are repeatedly involved in litigation enjoy over the occasional participant); Kenneth W. Graham, Jr., The Persistence of Progressive Proceduralism, 61 Tex. L. Rev. 929, 939 (1983) (reviewing Julius Byron Levine, Discovery: A Comparison Between English and American Civil Discovery Law with Reform Proposals (1982)) ("[I]ncreasing [procedural] complexity . . . makes it much more likely that the outcome of the case will be determined by the relative skills of the lawyers in manipulating the rules. . . .").
229. Institutional defendants and their insurers, at least, are more apt to be repeat litigants and to employ lawyers experienced in dealing with the types of issues involved in the litigation. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95, 97, 114-19 (1974) (describing advantages that those who are repeatedly involved in litigation enjoy over the occasional participant); Kenneth W. Graham, Jr., The Persistence of Progressive Proceduralism, 61 Tex. L. Rev. 929, 939 (1983) (reviewing Julius Byron Levine, Discovery: A Comparison Between English and American Civil Discovery Law with Reform Proposals (1982)) ("[I]ncreasing [procedural] complexity . . . makes it much more likely that the outcome of the case will be determined by the relative skills of the lawyers in manipulating the rules. . . .").
230. See, e.g., Baldwin et al., supra note 43, § 1.02[4] (explaining that suggested instructions come in two versions: "plaintiff's instruction" and "defendant's instruction" covering the same legal concept).
231. See generally Hodges & Guy, supra note 35, §§ 19, 20 (instructions couched in terms of victory or defeat; instructions that "tilt" or "nudge").
232. Wiener, supra note 179, at 16.
233. Id. 186. See Bordens & Horowitz, supra note 86, at 26. Similarly, singling out particular questions to include as "interrogatories" accompanying a general verdict can highlight particular theories.
234. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 631, 642 (acknowledging that appellate control of jury instructions increases control over trial results).
235. For example, the court could require the parties to identify all parts of the record relevant to fact issue and separately reproduce those parts, thus reducing the burden of reviewing the trial court record. It could also adopt a standard of review that allows harm to be analyzed issue by issue, also facilitating review of particular issues. The standard of review is the primary determinant of the allocation of power between trial and appellate courts. See Louis, supra note 51, at 997.
236. Id. at 1010 (stating juries are "regarded as more 'liberal' or responsive to the needs of certain constituencies than are appellate judges").
237. See Wright & Miller, supra note 14, § 2511 (stating that the use of a general verdict with interrogatories can spotlight the more important issues and tests the general verdict); see also Brown, supra note 139, at 339-40 ("Rule 49(b) offers . . . nothing but trouble because it seeks to meld a general verdict and special answers with the high likelihood of conflict which extinguishes both.").
238. Thus, whatever the format chosen, the court should use its discretion to give the jury a written copy of the charge. See Hastie et al., supra note 119, at 231 (explaining how providing jurors with a written copy of the court's instructions aids jury comprehension and understanding); Wright & Miller, supra note 14, § 2555 (noting that the judge has discretion).
239. See supra Part II (providing sample charges in the hypothetical Cleaver case). Remember that "broad form" is a term of art for omnibus, but narrower, questions - generally one question per legal theory - and does not mean the same as "general verdict."
240. See supra notes 159-60 and accompanying text.
241. The use of broad form rather than separate and distinct questions limits the damage to the jury's political and process functions while accommodating the need for more identifiable findings.
242. See Brown, supra note 139, at 344.
243. See Gilles, supra note 60; Edward J. McCaffery et al., Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev. 1341 (1995).
244. See Gilles, supra note 60; Edward J. McCaffery et al., Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev. 1341 (1995).
245. As discussed above, if an argument for greater specificity of findings is based on the allegedly greater consistency of judge-made decisions, the unreliability and/or irrationality of juries, or the desire for a less democratic decisionmaker, the argument is based not on substantive law but on political or process values.
246. For an argument questioning the theory of deterrence on psychological grounds, see Daniel W. Shuman, The Psychology of Deterrence in Tort Law, 42 U. Kan. L. Rev. 115 (1993).
247. Cf. Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (terminating parental rights on broad form findings).
248. See Brown, supra note 139, at 339-40. Eliminating this second type of special verdict would also have the incidental benefit of reducing court confusion in trying to tell the two types apart. The confusion is not immaterial, because rules about preserving error are sometimes different for the two verdict types and thus lawyers can unwittingly lose their clients' rights to raise issues on appeal.
249. See Ernest Guinn, The Jury System and Special Verdicts, 2 St. Mary's L.J. 175, 179 (1970).
250. Marcus, supra note 8, at 785.