By Dr. Ken Broda-Bahm:
Juror C: Okay, we've answered question four, so let's move on to five.
Juror A: No, it says that if we answered "No" to four, then we skip to seven...
Juror D: ...I totally know the answer to six, it is "Yes!"
Juror A: Wait, wait, we should not even be answering that...
Juror D: Well, let's just see what everyone thinks...
Juror F: Yeah, just to be on the safe side, let's answer each one, and we can always cross it out later.
Juror A: No!
That is a small sample of the kinds of confusion one can see when a jury confronts a complex verdict form. In the mock trial observation room, counsel and clients might be tearing their hair out over mistakes that could risk an inconsistent or ambiguous verdict in the actual trial. Lawyers and judges will strive mightily to clarify the verdict form and make sure it has clear skip instructions, but it is easy to see that most verdict forms, particularly special verdict forms in complex trials, sow barriers in the way of a clear or simple verdict.
A recent article in the Duke Law Journal proposes an intriguing possibility for a better way. To address the hazards of verdict inconsistency -- damages without predicate liability or cause, or duplicate damages for the same harm awarded in more than one category, for example -- the article (Fang, 2014) makes a compelling argument for flowchart verdict sheets "as a prophylactic against juror confusion." Inconsistent verdicts are burdensome and expensive, sometimes requiring a do-over in whole or in part. "By mitigating the confusion that can result in inconsistencies before the verdict is rendered," Jerry Fang writes, "the flowchart verdict sheet enables the judicial system to avoid the costs associated with remedying inconsistent verdicts." This post takes a look at this interesting legal reform idea and shares some thoughts on how it might be incorporated in civil trials.