Special Verdicts vs. Special Verdict Forms

Where a special verdict is hopelessly ambiguous as to whether it awards duplicative damages, the rule is that the trial court should ask the jury to clarify the verdict. But what if the jury is discharged before anyone objects to the ambiguity? The court of appeal reminds us in Zagami, Inc. v. James A. Crone, Inc., case no. D049563 (4th Dist. Mar. 10, 2008), that it depends on whether the ambiguity arises from the form of the verdict or the jury’s answers.

Error in the form of the verdict is subject to waiver if no objection is made. But ambiguity created by the jury’s responses is not waived, even if no objection is raised until after the jury is discharged. (See fn. 6 of the case.) Indeed, in this case, the appellant argued initially that the verdict was unambiguous and only changed its tune after entry of judgment, and the court reverses because the verdict is “hopelessly ambiguous.”

Keep the distinction in mind, and make sure which you are dealing with.