The Verdict on Verdict Forms

By Jason W. Graham, Founding Partner of Graham & Jensen, LLP ( & CEO/COO of SynerG Law Complex (

“We have a verdict.” No matter how many cases I try in front of a jury, those words still give me knots in my stomach. We all stand, the jury marches back into the box for the last time, and the foreperson (rarely the person we were betting on being the foreperson) reads the verdict aloud. I only make it worse on myself by requesting detailed and sometimes lengthy verdict forms that take longer to read…

However, in my experience, those detailed and lengthy verdict forms have helped a number of sizeable verdicts survive appeal—or avoid an appeal altogether. A few examples from my own practice will illustrate the usefulness of treating the form of verdict during the trial preparation scramble as more than a last-minute afterthought at the end of the pretrial order.

Several years ago, I tried a case on behalf of a couple feuding with their neighbors over water runoff. My clients were sued for nuisance and trespass and were being defended under their homeowners’ policy by Hawkins Parnell. However, the plaintiffs went overboard in threatening and attacking my clients in the name of their water dispute and I was brought in to prosecute the counterclaim since insurance defense does not include prosecuting counterclaims. We counterclaimed asserting the intentional torts of trespass, nuisance, destruction of property, slander, invasion of privacy, intrusion upon seclusion, assault, battery, and intentional infliction of emotional distress. The trial was very emotional for my clients and there were many thorny legal issues involved. I not only needed to win for my clients, I needed to structure my win to avoid a new trial at all costs in the event we, or the trial judge, were found to be wrong on a legal issue by an appellate court. We did this by drafting a five-page special verdict form allowing the jury to find separately against each defendant on each tort for a separate amount. By doing this, we knew that most potential errors could be remedied by addressing only the affected part of the case.

The Forsyth County jury returned a verdict finding against the plaintiffs on their claims and in favor of my clients on their counterclaims in the amount of $250,500. The jury also awarded punitive damages to my clients and found specific intent to cause harm.
Although there were many grounds asserted on appeal, the single ruling reversed by the Court of Appeals was the trial court’s direction of a verdict in my clients’ favor on the battery counterclaim, but the remainder of the verdict was upheld. Kohler v. Van Peteghem, 330 Ga. App. 230, 237 (2014). A new trial was granted on the battery counterclaim, which constituted only $10,750 of the $250,500 verdict. Thankfully, because of our detailed verdict form, we were quickly able to dismiss that claim without prejudice and had a final judgment for the $239,750 balance—with which we were quite happy.(1)

The Court of Appeals noted the importance of our special verdict form in its decision not to order a new trial on all claims:

“We agree… that the trial court’s jury charge was erroneous and that [defendants in counterclaim] are entitled to a new trial on the… battery counterclaim for the reasons we articulated [above]. However, we do not believe that the charge was so “incendiary” as to require a new trial on the remaining claims and counterclaims. With the consent of the parties, the trial court submitted a special verdict form to the jury which required it to consider and allocate damages separately for each of the claims and counterclaims. Under these circumstances, we cannot say that the jury’s verdict on any other claim or counterclaim was tainted by the trial court’s charge on the battery counterclaim. See Grant v. Hart, 197 Ga. 662, 673(3), 30 S.E.2d 271 (1944) (when the trial court gives an erroneous jury charge and the jury returns a special verdict answering specific questions, a new trial may be granted only as to the specific questions that were connected with and affected by the charge).”

Kohler v. Van Peteghem, 330 Ga. App. 230, 238, 767 S.E.2d 775, 781 (2014), cert. denied (Mar. 2, 2015). Without our carefully constructed special verdict form, our clients would have had to relive the absolute misery of a new trial because they had “won” directed verdict on a single tort claim (out of nine) representing less than five percent of the jury’s damages award.

More recently (in October of 2016), my firm tried a bad faith insurance claim to a Gwinnett County jury. We had claims against both the insurance company and the agent—and they were very different claims legally. Against the insurance company, we were asserting bad faith claims limited by O.C.G.A. § 33-4-6 (go insurance lobby!), but we were also asserting claims for breach of contract, negligence, fraud, attorneys’ fees pursuant to O.C.G.A. § 13-6-11, and punitive damages against the insurance agent.

We advocated a three-page special verdict form parsing out the various claims against each defendant. We also asked for instructions, and explained in closing, about how to fill out the unique verdict form and that the parties had agreed to no double dipping and how the jury’s award would be allocated. For example, the jury had the option of awarding the amount of the covered loss and attorneys’ fees against either, both, or none of the defendants.

However, we were able to explain to the jury (supported by a jury instruction from the trial judge) that if they awarded damages against both the company and agent, we would not get double. We repeated this format, instruction, and argument with the claims for breach of contract, negligence, and fraud against the agent. The jury understood that they could award the same amount three times on three different claims without my clients getting a triple recover.

The jury, in fact, found against both the agent and the insurance company on all claims. It is because of our detailed special verdict form that there was no incentive to appeal and the judgment was paid. Although defense counsel did a great job of moving on every possible directed verdict ground available, appellate victory on one or even three or four different grounds would have resulted in the same monetary outcome. Hence no appeal and a check.

Even in supposedly “simple” auto wreck cases, we ask for verdict forms that clearly deal with apportionment issues, attorneys’ fees pursuant to O.C.G.A. § 13-6-11, evidentiary issues, and directed verdict issues (such as negligence per se). If there are issues of last clear chance, contributory or comparative negligence, or motion in limine or jury instruction issues, try to encapsulate these issues in the verdict form. Of course, you always have to make the strategic decision about whether to draw the jury’s attention to an issue on the verdict form, but most good trial advocates will tell you to deal with any potential land mines head on. What better way than to point to the issue on the verdict form during closing? Win or lose, any evidentiary objection or exception to charge can result in a new trial or judgment notwithstanding the verdict. Address those issues in the verdict form and you may wind up with a final and bullet proof judgment.

The verdict form can be a powerful tool for guiding the jury (and trial judge) and surviving or even avoiding an appeal. I had a mentor who told me to copy and read the jury instructions applicable to a case before drafting the complaint so that the applicable law would guide every aspect of litigation from complaint through discovery, motion practice, and trial. I would add starting to draft the verdict form while drafting the complaint to his sage advice. You can also annotate your verdict form to double as a prima facie elements checklist for all of your claims at trial. The verdict form may be the last thing you see in your cases, but it should be the first thing you think about if you want to win and protect your win. If you would like a copy of either of the verdict forms discussed above, please email me at ●

About the Author
Jason W. Graham is a founding partner of Graham & Jensen, LLP ( and CEO/COO of SynerG Law Complex ( Mr. Graham is a graduate of Emory University and the University of Pennsylvania School of Law. Mr. Graham is a trial lawyer focusing on personal injury and complex commercial litigation. He is a Fellow with the Lawyers Foundation of Georgia, is AV Peer Review Rated by LexisNexis Martindale-Hubbell, and selected to Super Lawyers® Georgia Rising Stars in 2006, 2009-2012, and Super Lawyers® in 2014-2017 by Law & Politics Magazine/Atlanta Magazine.

1 The defendants in counterclaim filed bankruptcy and the special verdict form again figured prominently in the adversary proceeding seeking non-dischargeability for intentional and malicious conduct under the doctrines of res judicata and collateral estoppel. We argued that the debt arising from the jury’s verdict is not dischargeable because it arises from “willful and malicious injury by the debtor[s] to [my clients] or to the property of [my clients]” within the meaning of 11 U.S.C. § 523(a)(6).

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