Today, the United States Supreme Court denied certiorari in Khan v. Chowdhury, Case No. 13-1479. Notwithstanding the denial, this case is notable, as it highlights a recurring issue in preserving error for appeal: proposing the proper verdict form at trial.
In Khan, the question presented was as follows:
Where one of the claims submitted to a jury is set aside after trial, must a court vacate the jury’s general verdict, or may the court apply a “harmless error” exception?
Traditionally, the Baldwin principle has governed in federal courts. See Maryland v. Baldwin, 112 U.S. 490 (1884). In Baldwin, the Supreme Court held that a general verdict must be vacated if any invalid theory was presented to the jury:
On the trial evidence was introduced bearing upon all the issues, and, if any one of the pleas was, in the opinion of the jury, sustained, their verdict was properly rendered, but its generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence or in the charge of the court, the verdict cannot be upheld, for it may be that by that evidence the jury were controlled under the instructions given.
Id. at 493.
The Petitioner in Khan asserted that the federal circuit courts of appeals have failed to uniformly apply that rule strictly, thus creating circuit conflict:
Four courts of appeals – the District of Columbia, Sixth, Eighth, and Eleventh Circuits – apply that rule. Eight courts of appeals – the First, Second, Third, Fourth, Fifth, Seventh, Ninth, and Tenth Circuits – have added harmless-error exceptions. Compounding that confusion, those eight circuits have adopted four conflicting approaches for determining whether an error is harmless.
To make matters even more complicated, add to this variation of approaches in the federal circuits the fact that some state courts employ a “two-issue” rule, which in some ways is the counterpoint to the Baldwin principle. For instance, Florida courts articulate the binding preservation principle as follows:
[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.
Whitman v. Castlewood Int'l Corp., 383 So. 2d 618, 619 (Fla.1980) (citing Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla.1977))
There are multiple reasons that parties may opt for general verdict forms, including simplicity and the avoidance of inconsistent verdicts. Indeed, standard or pattern verdict forms are often set up as general verdicts. But, as demonstrated by the foregoing, the use of a general verdict form may preserve or waive critical appellate issues, depending upon the law of the jurisdiction.
Accordingly, proposing the verdict form can be tricky business. There may not be a one-size-fits-all solution. Knowledge of the governing principles in a jurisdiction, mixed with an understanding of the strategic implications of each approach, can help strike the balance between trial aims and preservation of error for appeal.