Preserving the Objection

Rule 49(b)(3) gives the judge three ways to handle written answers that are consistent with one another but clash with the general verdict: approve judgment on the answers,¹ direct the jury to further consider its answers and verdict,² or order a new trial.³ Only the second remedy needs the jurors, so timing decides whether it can be used at all. A verdict is announced in open court, and unless the judge or a lawyer sees the mismatch, the verdict is recorded and the jurors go home.

Resubmission works only while the jurors are still in the courtroom. A direction to reconsider needs someone to receive it, and only the jurors can say what they meant. Once they are discharged, the court has lost its cheapest cure, and the parties face a new trial over a defect that one remark at the right moment might have fixed.

The same timing invites gamesmanship. A lawyer who spots the conflict and stays silent can keep a verdict that favors the client and attack one that does not. Courts answer by requiring the objection while the jury can still act on it. That requirement comes from case law: Rule 49(b) lists what the court may do when answers and verdict conflict, but not when a party must ask for it, so the circuits state and apply the waiver rule with some variation. This section sets out the general rule first and then the places where courts have bent it.

Waiver Before Discharge

A party that notices an inconsistency between the verdict and the answers must object before the jury is discharged, and a party that waits generally loses the objection.⁴ USFL v. NFL shows the rule at work. After the verdicts were read in open court and before the jury was discharged, counsel for the plaintiffs was asked whether there was “any application with respect to the verdict,” and counsel answered, “No application, your Honor.”⁵ The plaintiffs later pointed to purported inconsistencies in the verdict sheet and sought a new trial.

The court held that the plaintiffs had waived their right to a new trial under Rule 49(b). They had not brought the inconsistencies to the court’s attention at a time when it was still possible to return the jury for further consideration of its answers.⁶ The court also cited the First Circuit’s observation in Skillin v. Kimball that the only efficient time to cure a possible inconsistency in a Rule 49 verdict comes after the jury announces its result and before it is excused.⁷ Counsel had been invited to speak and declined.

Resubmission is cheap only while the jurors are in the courtroom. Morris v. Flaig shows the cure working. An inconsistency in how the verdict sheet attributed compensatory damages to particular claims was raised when the verdict was returned, and the jury went back to the jury room and amended the sheet. No party objected, so the episode furnished no basis for a new trial.⁸ A rule that demands the objection at the moment of the verdict pushes parties to use the remedy while it costs almost nothing.

The tactical danger is the second reason for the rule. Courts want to discourage “possible misuse of Rule 49 procedures ... by parties anxious to implant a ground for appeal should the jury’s opinion prove distasteful to them.”⁹ A dissenting judge in Jarvis put the point this way: resubmission to the jury might cure the inconsistency, and courts want to discourage a litigant’s tactical misuse of Rule 49 to secure a new trial.¹⁰ A party that raises the conflict while the jurors are seated keeps every Rule 49(b) remedy open.

A judge who meets the conflict only after discharge cannot repair it by picking a winner. In Turyna, Martam suggested that the court simply disregard the jury’s answer on punitive damages. The suggestion failed because no one knew which part of the jury’s verdict should control, and giving primacy to the liability answer over the damages answer would do as much violence to the jury’s factual findings as the reverse.¹¹ Resubmission resolves exactly that uncertainty, because the jurors can say what they meant, but only while they remain available.

Because the waiver rule is judge-made, courts do not all apply it alike, and the next part examines where they have relaxed it. For an exam, the general rule is the safe starting point: raise the inconsistency before the jury is discharged.

Limits on the Waiver Rule

The waiver rule exists to get the Rule 49(b)(3)(B) cure used while the jurors are in the courtroom,¹³ and its logic weakens where no lawyer could have been expected to spot the problem or where resubmission would have fixed nothing. Courts mark those limits in different places. Some treat any late challenge as waived outright, some review for plain error, and some decide waiver case by case, so no single approach is the national rule.

Resolution Trust Corp. v. Stone illustrates plain-error review. The jury found liability on the RICO fraud counts and no liability on a § 12(2) count, and a party later claimed that the verdicts conflicted. The record showed no objection before the jury was dismissed, so the appellate court asked only whether the verdict was inconsistent on its face, such that entering judgment on it was plain error.¹⁴ It was not. The finding of liability on the RICO fraud counts was not facially inconsistent with the finding of no liability on the § 12(2) count, so the district court could not be expected to notice a potential inconsistency without an objection, and the objection was waived.¹⁵

The facial test separates two kinds of mistake. A contradiction visible on the face of the form is one a judge could catch in a single reading, so entering judgment on it is the court’s error as much as counsel’s silence. An inconsistency that emerges only from comparing different counts, which carry different elements, is one the judge cannot be expected to notice unprompted, and the lawyers who know the case best are the ones who should speak. Plain-error review keeps a door open for the first kind and shuts it on the second.

A second approach asks, case by case, whether the party’s silence really cost anything. In Morris v. Flaig, the court recognized the general rule that a party who fails to object to an inconsistent verdict before the jury is discharged waives the objection. It then observed that Second Circuit precedent indicates a district court may, under certain circumstances, order a new trial for inconsistency even though no objection came before discharge.¹⁶ In Denny v. Ford Motor Co., the Second Circuit said that a “case-by-case application of the familiar principles of waiver” seemed desirable under Rule 49(a), and it rejected the waiver rule where the inconsistency could not have been resolved by resubmitting the verdict form with a request that the jury reconcile its answers.¹⁷ Although the parties in Morris had waived their arguments about inconsistency on certain issues, the court considered whether to order a new trial on its own authority anyway, and it concluded that the case before it was not one for doing so.¹⁸

The resubmission question ties this approach back to the reason for waiver. Waiver pushes parties to seek the cure while it is cheap. If no resubmission could have repaired the defect, the party’s silence cost the court nothing that a prompt objection would have saved, and the case for forfeiture is weaker. The argument for relief is therefore strongest for an inconsistency that is plain on the face of the verdict and cannot be repaired by sending the jury back.

Even one circuit’s law can pull in two directions. The Eleventh Circuit has said that all challenges to the consistency of special verdicts must be raised before the jury is excused. Yet it has also adopted older Fifth Circuit decisions holding that entering judgment on irreconcilable, legally inconsistent answers to special-verdict questions is error and that an appellate court may vacate such a judgment even without a timely motion.¹⁹ The court did not choose between the two lines, because it concluded that the verdict before it was a general verdict, and it left the untangling for another day.²⁰ A student who meets this question on an exam should describe the split and apply the approach of the controlling jurisdiction when the facts identify one.

Hypothetical Illustration

A customer sues a restaurant on a single theory: the kitchen served spoiled shellfish. The jury returns a general verdict for the customer, but its written answer to the one fact question says the shellfish was not spoiled. No one speaks, the jury is discharged, and the restaurant moves for a new trial the following week. A court that reviews for plain error has before it a verdict whose conflict shows on its face, the defect that review exists to catch. A court that treats late challenges as waived outright would deny the motion. A court that decides waiver case by case would ask whether sending the jurors back could have cured the problem. The jurors were in the room and the conflict required comparing only one answer with the verdict, so resubmission probably would have worked, and that points toward waiver.

Exam Analysis Steps

Because the circuits disagree, the sound way to analyze an objection raised after discharge is to ask the questions on which the approaches overlap, in order, and then to apply the approach of the governing jurisdiction. The steps are these:

Ask whether the party raised the inconsistency before the jury was discharged, since an objection made then keeps every Rule 49(b) remedy available.
If the party did not, ask whether the inconsistency is apparent on the face of the verdict, so that a court reading the form once would see the contradiction without comparing separate counts.
Ask whether resubmitting the form to the jurors, with a request that they reconcile their answers, could have cured the problem had anyone raised it while they were still seated.
Apply the controlling circuit’s approach of outright waiver, plain-error review, or case-by-case waiver, and if the jurisdiction is not identified, say that the law is unsettled and show how each approach comes out on the facts.

The second and third steps do the real work. A conflict that appears only when separate counts are compared fails step two, and the waiver stands under outright waiver and plain-error review alike, as in Resolution Trust. A conflict that is plain on the face of the verdict passes step two but may still fail step three, so the party who sat silent while the jurors stood ready to reconsider has the hardest time obtaining relief. The party whose problem resubmission could not have fixed has the strongest argument.