The Power and the Process: Instructions and the Civil Jury

Abstract

The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for political reasons: the general charge best preserves the proper allocation of power between judge and jury and the jury's role as arbiter of community values. Second, the article argues that special verdicts are neither more accurate nor more efficient than general verdicts except under very limited circumstances. Third, the article argues that a change from the general verdict norm would cause an undesirable shift in procedural advantage from plaintiffs to defendants. The article concludes that FRCP 49 should be amended to provide that general verdicts should be used absent exceptional circumstances and to eliminate the current Rule 49(b) option of a general verdict accompanied by interrogatories. The civil jury is a vital and important institution that deserves our protection from "tort reform" -inspired changes; the general verdict best preserves the jury's historic role.

JEL Classification: K4