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Rule 49. Special Verdict; General Verdict and Questions

(a) SPECIAL VERDICT.

(1) In General. The court may require a jury to return only

a special verdict in the form of a special written finding on each issue of fact. The court may do so by:

(A) submitting written questions susceptible of a categorical or other brief answer;

(B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or

(C) using any other method that the court considers appropriate.

(2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue.

(3) Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict.

(b) GENERAL VERDICT WITH ANSWERS TO WRITTEN QUESTIONS.

(1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both.

(2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers.

(3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may:

(A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict;

(B) direct the jury to further consider its answers and verdict; or

(C) order a new trial.

(4) Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial.

Essential Points

• If you watch a typical courtroom TV show or movie, the trial will usually end with a jury delivering a general verdict: the jury will state that the defendant is either liable or not liable for the plaintiff’s damages.
• But Rule 49 also provides for special verdicts.  In a special verdict, the judge will ask the jury to answer a series of questions and the the judge will make a determination of liability based on the answers.  For example, in a negligence case a judge might ask a jury to answer, among other things, whether the defendant breached his duty of care to the plaintiff.   Based on the answers in the jury’s special verdict, the judge will determine whether or not the defendant is liable to the plaintiff.
• Rule 49 also allows the court to provide the jury with a series of questions to guide the jury to a decision.  This is known as a general verdict with answers to written questions.
• What happens if the answers to the written questions are inconsistent with the verdict?    For example, let’s say in a negligence case, the  jury answer that the defendant did  not breach his duty of care to the plaintiff.   However, the jury reaches a general verdict that the defendant was liable for plaintiff’s injuries.  In this case the verdict is not consistent with the jury’s answer (if the defendant did not breach his duty of care he could not be liable for negligence).  Under these circumstances the court can: (i) issue a verdict consistent with the answers, (ii) send the case back to the jury for more deliberations, or (iii) order a new trial.
• If answers to written questions are inconsistent with each other and inconsistent with the general verdict, the court cannot enter judgment.  For example, let’s say a jury responds to a special verdict question by answering that defendant B contributed to an accident.  However, the jury answers a follow up question by stating that defendant B’s share of responsibility for the accident was 0%.   The two answers cannot be reconciled.  The judge must either send the case back to the jury for further deliberation or order a new trial.