The Special Verdict Paradox: Part II

Is there a way that a rational civil jury can find on a special verdict form that a plaintiff has proven all the elements of a claim, where the same jury would not find liability if presented with a general verdict form?

My previous article explained the "lottery paradox," which, as applied to special verdict forms, illustrates that this is logically possible because the jury is engaged in making findings based on probabilities rather than certainties. As those probabilities are never articulated by the jurors, however, it usually is unknowable whether a jury issuing a special verdict would have concluded differently on a general verdict form.

But there is a second way in which the same divergence between a special and general verdict can happen in California, although not in most jurisdictions. This possibility, which I will call "shifting majorities," is more concrete than the lottery paradox, and it usually can be demonstrated that it has happened.

Once again, it is important to define what a "special verdict" is. On a "general verdict" form, a jury - having been instructed on the elements of the cause of action - simply answers yes or no to whether a plaintiff has proven the particular claim under the appropriate standard. If the answer is yes, it is assumed that the jury has found each of the elements satisfied.

On a special verdict form, however, a jury typically answers yes or no to a series of questions asking whether a plaintiff has proven each element of its cause of action by a preponderance of the evidence. If the jury answers yes to each question, finding each element satisfied, the law treats the cause of action as proven.

Shifting majorities can cause different results between a special and general verdict form because California law allows for different majorities of jurors to answer affirmatively to each question on a special verdict form. Under Article I, Section 16 of the state Constitution, at least nine jurors must agree on any civil verdict. As to special verdict forms, the law, as articulated in California civil jury instruction No. 5012 tells the 12-member jury that "[a]t least 9 of you must agree on an answer before you can move on to the next question. However, the same 9 or more people do not have to agree on each answer."

This instruction creates the possibility that, in a civil case, there will be differently formed majorities of nine (or 10, or 11) jurors subscribing to different answers to questions on the special verdict form.

A simple illustration of how shifting majorities can mean a result in which a special verdict differs from a general one can be seen by considering a two-element claim. If nine jurors agree with the plaintiff on one element, but just one of those nine shifts away from the majority on a different element (with at least one of the three dissenting jurors joining the majority to maintain a majority), that means that the jury would find both elements proven on the special verdict form - but the jury would not have issued a general verdict for the plaintiff.

(This analysis does not account for different dynamics in juror discussions when presented with different verdict forms that may cause jurors to reach different conclusions; it assumes jurors vote with the same views on each form.)

To make that example tangible, let's say a terminated employee sues her company for maintaining a hostile work environment, and there are two elements of the claim contested at trial: (1) whether the harassing conduct was severe or pervasive, and (2) whether a supervisor knew or should have known about the conduct.

On the first question on the special verdict form, the jury answers yes to the question "Was the harassing conduct severe or pervasive?" with jurors one through nine voting yes and jurors 10 through 12 voting no. The plaintiff employee prevails on this element.

As to the second question on the special verdict form, the jury answers yes to the question "Did a supervisor know, or should a supervisor have known, about the conduct?" with only juror four disagreeing. Juror four, alone, did not believe there was any reason that a supervisor should have known about the harassment.

After the verdict form is read by the clerk, the judge then would enter judgment for the plaintiff because she proved a violation of the Fair Housing and Employment Act. She won by proving all the elements she needed to prove.

But what would have happened in this case on a general verdict, where the jury would be asked only the ultimate question of whether the employer was liable for the harassment, given the elements? Only eight of the 12 jurors would have voted for the plaintiff. That is, jurors 10 through 12 would have voted no because they concluded that the conduct was not severe or pervasive, and juror four would have voted no for the different reason of lack of corporate knowledge of the conduct. A nine-member majority would have found each element demonstrated, but there would be no nine-member majority for finding the cause of action proven.

This type of hypothetical verdict can be taken to greater extremes. If, for instance, there are four elements in dispute in a case, it is logically possible for nine jurors to find each element proven, where not a single juror would vote on a general verdict form that the cause of action itself is proven. This would be the case if a different set of three jurors were in the minority on each of the four elements.

After a verdict in California courts, jurors can be polled as to each of their individual answers to each question on a special verdict form. For this reason, it typically can be demonstrated if the jurors would have found liability on a general form or whether result on a general form would have differed due to shifting majorities (again, this assumes unchanged juror views though the forms might shape a different discussion and juror compromises). The inquiry that reveals whether there would be no general verdict in favor of the plaintiff is simply whether four or more jurors have found that some element has not been proven, even though there was the required nine-member majority in favor of each element.

The possibility of shifting majorities can occur only in a minority of American jurisdictions, for two reasons.

First, shifting majorities could not apply where verdicts must be unanimous. Under Federal Rule of Civil Procedure 48, civil verdicts must be unanimous unless the parties stipulate otherwise. According to data compiled by the National Center for State Courts, about half the states also require unanimous civil jury verdicts.

Second, the states that allow non-unanimous verdicts are split as to whether the law allows for shifting majorities. See Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 663 N.W.2d 43, 58 (Neb. 2003) (collecting cases that support the "same juror" rule and cases that support the "any majority" rule).

Indeed, one reason that some states require the same jurors to vote in support of each element is that shifting majorities can reach a special verdict that differs from a general one. See State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 957 (Mo. Ct. App. 1998) ("[i]f any nine jurors could agree on liability and any nine jurors could agree on damages, a plaintiff could ultimately prevail by convincing only six persons unanimously of her position with regard to both liability and damages").

Until the early 1980s, California law was in accord with these other states and required that "at least nine identical jurors must agree to the entire verdict." Schoenbach v. Key Sys. Transit Lines, 168 Cal. App. 2d 302, 305 (1959); Earl v. Times-Mirror Co., 185 Cal. 165, 182-86 (1921).

But in a 7-2 opinion in Juarez v. Superior Court, 31 Cal. 3d 759, 768 (1982), our Supreme Court held that different majorities of nine jurors could bind the jury to different answers on a special verdict form. The main basis for the ruling was ensuring all 12 jurors deliberated on all issues. As well, allowing shifting majorities are thought to promote a more expedient trial process. Juarez, 31 Cal. 3d at 768-69.

Emphasizing that Article I, Section 16 of the state Constitution "ha[d] long, and uniformly, been interpreted to require that at least nine of the same jurors must agree upon all elements of the ultimate general verdict," the Juarez dissent argued that the same rule "is equally applicable where the ultimate verdict rests upon specific questions denominated as 'special verdicts.'" Juarez, 31 Cal. 3d at 769 (Richardson, J., dissenting).

It appears paradoxical to assert that a rational jury could find all the elements proven on a special verdict form, yet find no liability on a general verdict form. As discussed in my previous article, the Court of Appeal recently recognized in Ryan v. Crown Castle NG Networks Inc., 6 Cal. App. 5th 775 (2016), the abstract possibility that the lottery paradox could lead to this result. But state law has acknowledged for a generation the demonstrable manner in which shifting majorities may do the same thing.