Accuracy, Efficiency, and Accountability in the Litigation Process – The Case for the Fact Verdict

Abstract

Although the jury trial is regarded as a lynchpin of the American concept of justice, ambivalence about the institution persists, particularly in the context of civil litigation. Some question whether the civil jury is an inefficient anachronism. This article argues that many of the concerns raised about civil juries in general are really concerns about the routine use of the general verdict, an institution that merges the jury’s fact finding function and its role as an applier of law. The article argues that in many instances, replacing a general verdict with a special verdict would allow the jury to play to its strength as reporter of fact. At the same time, it would free the jury from the burden of interpreting and applying elaborate instructions of complex legal doctrine. Despite criticism that the special verdict weakens the constitutional powers of the jury, the article proposes the use of the special verdict in a manner that presents the jury with questions of actual fact while leaving the task of applying law to the judge. The special verdict, if used correctly, enhances the reliability and efficiency of the litigation process.