You have been asked to prepare a set of jury instructions and a verdict form for trial. What do you do? Where do you start? In my last op-ed, I talked about the charge conference and persuading the court to give your requested instructions. Now it’s time to discuss a crucial stage at trial and a fertile ground for reversible error—the verdict form.
IV. The Verdict Form
The verdict form should go hand in hand with your instructions. There are important strategic and legal issues you must consider when drafting the verdict form.
First, consider whether the "two-issue rule" applies to your claims or defenses, so that interrogatory questions are requested that will preserve your points for appeal. The two-issue rule generally holds that an appellant cannot show reversible error when an error relates to one claim or defense and the verdict does not reveal whether the appellee prevailed on that basis or another not affected by the error. See e.g., Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla. 1977) (appellate court will not grant a new trial where the jury has rendered a general verdict and the appellate court finds no error as to one of the theories on which the jury is instructed and could have based its verdict). Cf. Grant v. Preferred Research, Inc., 885 F.2d 795 (11th Cir. 1989) (if jury delivers a verdict based upon several possible grounds, one of which is not supported by the evidence or was improperly submitted to the jury, and the appellate court has no means of determining on what basis the jury reached its verdict, the verdict must be reversed); Yates v. United States, 354 U.S. 298 (1957) (holding in a criminal case that a general verdict is invalid when it rests on multiple bases, one of which is legally inadequate and stating the "proper rule to be applied is that which requires the verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.").
Next, consider the number of questions you want to ask on the verdict form. The more questions the jury is asked, the more opportunities it has to deny liability (frequently, answering "no" to any question on liability will result in a defense verdict). On the other hand, the more questions the jury is asked, the more opportunities it has to make mistakes and reach an inconsistent verdict. Just as you did with the jury instructions, file with the court a copy of your requested verdict form and that of other parties.
Lastly, at the conclusion of the charge conference and again before the jury deliberates, be sure to renew your objections to the instructions and verdict form as given to the extent they deviate from what you requested. Never preface your objection by saying it is merely "for the record." It is not. It is an effort to provide the jury with correct instructions and a proper verdict form. Ask the court to confirm that your objections are preserved through the end of trial, and need not be repeated after the charges are given to the jury, if that is sufficient in your jurisdiction. Absent such a ruling, ask for a side bar either immediately before or after the charges are given and before the jury deliberates and again state your objections on the record.