The Verdict Sheet is the anchor of the Close
After the lawyers have made their closing arguments and the judge has read the Instructions to them, the jurors will go to the jury room to choose their foreman. Then the judge will provide them with the Verdict Sheet that contains the Issues the jury is to answer—these are the Jury Issues, and they are critical.
Unless the lawyers and the judge have made a mistake, the Jury Issues will track with the Instructions. For each Issue the judge will identify the party having the burden of proof and and explain the law that the jury should consider upon their verdict.
For example, if contract formation is one of the disputed Issues in the case, the judge will provide the jury with NCPJI 501.01, which begins: “The first issue reads: “Did the Plaintiff and Defendant enter into a contract?” He will then tell the jury that to prevail on that Issue, the plaintiff bears the burden to prove both mutual assent and adequate consideration, and he will then instruct the jury on the law pertaining to these elements.
Later, in the jury room, when the foreman opens the envelope containing the Verdict Sheet, the jurors will see this:
THE JURY must answer the following questions:
ISSUE 1: Did the Plaintiff and the Defendant enter into a contract?
If “yes”, go to Issue 2
If you are the plaintiff, you obviously will want the jury to check yes to the Issue of formation—and the defendant will want the opposite. The same holds true for the second Issue, breach by non-performance. If the jury gets past that that, the plaintiff will then want the foreman to write in as large a number as possible for the third Issue:
ISSUE 3: What amount is the Plaintiff entitled to recover from the Defendant for breach of contract?
No verdict is reached until the jury has answered all the questions on the Verdict Sheet and the foreman has signed it. The judge will then bring the jurors back into the courtroom and have the clerk read each Jury Issue (and the corresponding response) in open court and ask the foreman to confirm that this is in fact the jury’s verdict. If he says yes, that’s it. Trial over.
Given how important the Jury Issues are to the outcome of the trial, one would expect lawyers to at least refer to the Verdict Sheet during their Close, but that is often not the case. I have heard many summations in which the lawyers have never even mentioned the existence of the Verdict Sheet or the fact that the jurors would be asked to answer the Jury Issues. For quite a long time, I was also one of those lawyers. I would argue the law, recite the facts (that I liked), talk about fairness and provide the jury with brilliant analogies—but I wouldn’t tell them about the Verdict Sheet. That, to me (for some reason), was the judge’s job, not mine.
The problem with that view is that the only thing the judge tells the jury about the Verdict Sheet is that it will be delivered to the jurors by the bailiff after they have selected their foreman, and that the jurors are to complete and return it to the bailiff when they are done deliberating. He doesn’t say anything about how they are supposed to fill it out. One day, looking at it through the jury’s eyes, I realized that someone should do that and that that someone was me.
To be honest, I didn’t just realize that. What actually happened was that my Opponent in a trial did something I had never done nor seen any other lawyer do during Close—he explained the Verdict Sheet to the jurors and told them how he wanted them to fill it out. He did this by holding up a copy of the Verdict Sheet and walking the jurors through it step by step. Sitting there watching him do that, I could see what a simple and brilliantly effective technique that was. Instead of treating the Verdict Sheet like a set of arcane instructions to a board game the jury was being forced to figure out for themselves, he just explained it to them. He solved their problem.
This reminded me of the way I had been taught to perform tasks as a soldier. The instructor would always start with a giant demonstrative exhibit which he would use to point out and explain all of the pertinent aspects of the task we were being asked to undertake. Once he had explained the task, the instructor would then use his exhibit to demonstrate how it was to be performed. Only after he had explained and demonstrated the task, would the instructor have us Do it ourselves. Simple, effective and (now) the Third Principle Of Cross: Explain, Demonstrate and Do.
Having learned from my Opponent how effective it is, I now always follow the Explain-Demonstrate-Do format in my Close. I explain what the Verdict Sheet is, why it is important and how the jurors will use it to reach their verdict. I demonstrate to them how they can accomplish that by walking through each Jury Issue, applying the Facts they heard and law that the judge will give them. Only then do I ask them to do what I want them to do—which is reach a verdict in favor of my client.
This way I make the Verdict Sheet the focus of my Close rather than a mystery the jury will have to unlock for themselves.
The Verdict Sheet requires deliberate preparation
The Litigator’s role in the preparation of the Verdict Sheet depends upon the court in which his case is tried. In most state courts the judges have limited administrative support. Unlike federal court, their clerks are not lawyers who draft the Instructions and Verdict Sheet and provide them to the parties during the Charge Conference. Instead, the process is reversed. The lawyers prepare competing Instructions and Verdict Sheets and the judge settles any discrepancies between the two versions during the Charge Conference.
This presents a logistical problem for the Litigator who wants to use the Verdict Sheet during his Close to demonstrate to the jurors how he wants them to fill it out. If the Charge Conference is not completed on the edge of a scheduled break, the judge will often begin the closings immediately afterward and have his clerk complete and print the Verdict Sheet while the lawyers are arguing. That way the jury will have it when they begin to deliberate, but the Litigators will not have a copy during their arguments.
To ensure that I have a copy of the Verdict Sheet during Close, I bring a small portable printer to court. During the Charge Conference, my Junior edits the Verdict Sheet as necessary and prints copies for me (and my Opponent and the judge) before the Close starts. I say “edit” here because I don’t wait until the Charge Conference to begin writing my proposed Verdict Sheet. I write it the week before the trial even starts. There are four reasons for doing it this way.
First, it’s easier to change something that already exits than it is to create it from scratch, particularly when that something is complex—and the Verdict Sheet can be very complex.
Second, my practice is to hand the fully formed Verdict Sheet to the judge at the start of the trial, before a single witness has been called. This provides the judge with a roadmap of the case (my roadmap) and makes it more likely the my set of Instructions (which I also hand up at the start of the case) will be largely adopted by the court at the Charge Conference.
With both the Verdict Sheet and Instructions I am careful not to overreach. I include all of the still-existing claims and defenses of all the then-remaining parties and don’t edit out any portion of the pattern instructions that I would expect my Opponent to want included. My primary goal is to ensure that what I need for my case is included, not to have something he needs be excluded. While I know that some claims and defenses will be abandoned by the parties or dismissed by the Court during the trial, it is far easier to delete them from the Instructions and the Verdict Sheet than it is to create and add them.
Third, because I conform my case tightly to the Instructions, it is better for my client that the jurors have a written copy of them during their deliberations. In fact, it is almost always the first question they will ask after they have retired. Having heard the Instructions read at length by the judge, they naturally want to go over them again in their written form while they deliberate. The judge is usually forced to say no because a clean copy of the Instructions does not actually exist.
What the judge has on the bench when he instructs the jury will generally be a printed copy from one side or another with his handwritten changes on it. Or, if he is computer savvy, the judge will read a set of instructions from his laptop that cannot be practically printed off. Either way, he does not have a clean set of the Instructions that would be appropriate for the jury to have in hand during deliberations—unless one of the Litigators produces one. This frustrates the jury and doesn’t solve their problem, which is to render a just verdict as quickly as possible.
So, along with changes to the Verdict Sheet, my Junior also edits the Instructions during the Charge Conference to conform to the judge’s rulings on disputed points. Then (as with the Verdict Sheet) he prints copies for the judge, my Opponent and me before the Close starts. This way, the judge will have a clean set of the Instructions that he can provide to the jury if they ask. And even if they don’t ask, I will move that they be provided.
Fourth, I want to make sure that I am not distracted by the process of drafting the Instructions and the Verdict Sheet during the time when I need to be be thinking through my Close. The details of the Charge Conference are a topic for a later portion of this book, but suffice for now that it is a phase of the trial that is both very important and easy to overlook in terms of preparation.
The Charge Conference occurs immediately after the judge has made Directed Verdict rulings at the close of evidence and immediately before the closings. Given the significance of the Directed Verdict hearing and the Close to the case (and the Litigator-energy they consume), the Charge Conference masquerades as a non-event wedged in-between. Heck, it’s only a “conference”, right? But that is a misnomer. It’s actually a hearing, a very important hearing. It is where the judge will make the final decision on the law he will read the jurors and the form of the Verdict Sheet that will guide their deliberations.
Because it is so critical, the Charge Conference cannot be delegated to the Junior—the Litigator has to do it himself. If he is worn out from the Directed Verdict hearing (which is likely) and distracted by the looming Close (which is certain), he will not be able to give the Charge Conference his full attention and energy. That may lead to him giving in on a critical Instruction for which he should fight or (together with his equally exhausted and distracted Opponent) making a mistake in Verdict Sheet that confuses the jury. The best way to avoid that kind of error is to make the Charge Conference as much of a foregone conclusion as possible by having the Instructions and Verdict Sheet as fully prepared as possible before the trial starts.
The Verdict Sheet is subtly complex
Because the Jury Issues come from the Instructions, they must be integrated into the Verdict Sheet so that they flow in a way that the jurors can use them. In fact, the Verdict Sheet ends up being a kind of flow chart, the complexity of which increases with the number of claims, defenses and parties as there must be a separate Jury Issue for each element of every claim for every party (plaintiff or defendant) against whom (or in whose favor) the claim runs.
For example, a single plaintiff/single defendant breach of contract claim will require three Jury Issues: formation, breach and damages. But if there are two defendants with potential liability, then the number of Jury Issues doubles, because the jury must make a separate determination on all three issues for each defendant. Likewise, if there are two plaintiffs who may potentially recover, then the number of issues doubles again because each plaintiff may (or may not) recover from each defendant, or both together.
Moreover, there are frequently multiple claims that will survive Directed Verdict. So, in addition to the three Issues required for a breach of contract claim, there may be three Issues for the jury to determine on a fraud claim (or counterclaim) which would then multiply by the number of plaintiffs and defendants that might individually recover.
The Litigator must also consider the order of the Jury Issues as they appear on the Verdict Sheet. Generally, the judge will want the claims to appear in the order they are pled in the complaint (although he may entertain arguments to the contrary).
But where do the defenses go? For example, if the defendant has a waiver defense to the plaintiff’s breach of contract claim that survives Directed Verdict, does that Issue go at the bottom of the Verdict Sheet? If it does, you may confuse the jury because there is no reason for the jurors to deliberate on contract damages if they conclude that the plaintiff waived the defendant’s breach of contract.
As a result, the waiver Issue (even though it’s a defense) should come between the Issues of breach and damages, with an instruction to “stop” if breach of contract is the only claim, or “go to” the start of the next issue if it isn’t. But the same would not be true for the defense of failure to mitigate. Since that defense would reduce (in part or whole) the plaintiff’s damage award, the Issue should appear after the damage Issue on the Verdict Sheet, not before.
My purpose here is not to describe the full multiplicity of potential Jury Issue scenarios (a more thorough discussion will appear in the L-Point on Trial Preparation later in the book), but to persuade the reader that a Litigator must think through them himself, very carefully and well before the Charge Conference when he will have neither the time nor the attention span to give the Verdict Sheet the strategic consideration it requires.
To be fully effective on Cross, the Litigator should plot out the flow of his Jury Issues prior to the first witness being called.