General and Special Verdict Rules

General and Special Verdict Rules

     I wrote this short blog/article for my, Eric Roy, own benefit.  This is just an abbreviation of some of the Nevada rules as they apply to verdicts in Nevada.  For a comprehensive understanding please read through the Nevada Civil Practice Manual which outlines the rules more thoroughly. 

     In the jury trial program, we have both general and special verdicts.  The use of one or the other is dependent on the type of case you are trying.  The general verdict provides for a general finding on all issues in favor of a party.  General verdicts will be sustained even when multiple counts are tried together.  As counsel there are times when it is pertinent to submit written interrogatories to the jurors.  These interrogatories are allowed for the purpose of asking the jurors about their specific conclusions as they relate to specific dispositive issues in the case.  In this way the court can determine whether the answers to these interrogatories are consistent or inconsistent with the general verdict.  As counsel it is important to submit these interrogatories to the court well in advance of trial, typically at calendar call or other pre-trial consult.  The court then has the right to approve or deny your requested interrogatories. 

     Once these interrogatories come back from the jurors a comparison is made between the answer to the interrogatories and the general verdict.  If the answers to the interrogatories and the verdict are consistent then the trial judge shall enter the appropriate judgment based on the verdict.  If the answers to the interrogatories are consistent with each other but inconsistent with the general verdict then the court can still enter the judgment.  However in this case the judge will enter judgment consistent with the answers to the interrogatories as opposed to relying on the general verdict.  The court may otherwise order the jury back into deliberations for the purpose of finding consistency between the interrogatory answers and general verdict.  Alternatively, the judge can order a new trial altogether.  Finally, in the case in which the answers to the interrogatories are inconsistent with each other and one or more of the interrogatory answers is also inconsistent with the general verdict then the judge’s hands become tied as to entry of judgment, leaving the judge no choice but to order the jurors back into consideration or otherwise to set a new trial on the matter.

     In the alternative to the general verdict with submitted interrogatories, the court has the option of requiring a special verdict.  The special verdict differs from the general verdict in that instead of relying on the jurors to come back with an overwhelming finding on all issues, the jurors are instead required to make special written findings as to each dispositive issue of fact in the trial.  In this way the trial judge can review these factual findings and then apply the corresponding law.  In this way the jurors are not instructed on the law.  The application of fact to law is left to the trial judge.  Special verdicts are typically employed when you have a case in which there are more than one theory of liability or defense.  The special verdict should additionally be employed in cases which assign specific damages to specific theories of recovery.  It is ultimately in the trial judge’s discretion as to what type of verdict is to be employed.  However, there are times when a judge’s failure to employ the special verdict would constitute reversible error.   Such would occur in the case in which there are multiple claims or theories of liability.  In this case if specific interrogatories are not provided and the court insists on a general as opposed to special verdict there will be no way on appeal to determine whether the jury based its general verdict on a permissible or impermissible theory of liability. 

     The comparative negligence case presents its own requirements.  These cases require the use of both general and special verdicts.  The reason for this is that the jury uses a general verdict to determine the total amount of damages the plaintiff is entitled to recover.  The jurors are instructed not to consider the plaintiff’s comparative fault in determining the amount of the verdict.  As plaintiff’s counsel be sure that your jurors thoroughly understand this.  If they do not then you run the risk that they will incorrectly subtract an amount of money from what would otherwise be the plaintiff’s verdict.  However this is the job of the trial judge.  That is why a special verdict is employed.  The special verdict is used for the purpose of determining the amount of comparative fault.  It then becomes the judge’s role to subtract from the amount of the general verdict a proportion of money equivalent to the amount of comparative fault found in the special verdict.  Remember that if there is another defendant who shares in the comparative negligence and that other defendant settles with plaintiff before trial or judgment that such settlement can not be mentioned to the jurors. 

     Be mindful as counsel that if a general verdict comes back which is inconstant with special interrogatories that you need to seek clarification before the jury is dismissed.  The trial judge also has responsibility to act in these circumstances even without counsel’s request.  However, if the jury ends up being discharged due to the neglect of bout counsel and judge then this error will likely bar further review of the issue on appeal.  However there seems to be case law suggesting otherwise.

     In the event that you are dealing with past damages versus future damages be sure to obtain a finding by the jury as to the amount of the verdict allocated to each of the these.  The reason for this is that interest cannot be awarded on future damages but will be awarded on past damages.  Thus if you end up with a total damages award which consists of part past and part future damages the court will be unable to apply interest given the lack of allocation between the two periods.  However if there is no reference in the record to suggest that future damages are a part of the award then such problem will not exist.  This prejudgment interest will accumulate until the date of the returned verdict.