Appellate Review of Multi-Claim General Verdicts: The Life and Premature Death of the Baldwin Principle

I. INTRODUCTION Consider the following scenario. A law student slips and falls in a dark hallway after hours. He brings a tort action against the law school alleging that it was negligent because (1) it failed to provide adequate lighting in the hallways at night and (2) it failed to provide sufficient notice that the floors had just been waxed. The judge instructs the jury to return a general verdict. After deliberating, the jury finds the law school liable. The law school feels wronged and appeals the case. On appeal, the circuit court finds that there was insufficient evidence to find the law school liable on the second theory of liability. Indeed, a sign had been posted in the hallway to the effect that the floors had just been waxed, but the law student was too tired and dazed to notice. The law school argues that the general verdict must be vacated and the case remanded to the trial court for a new trial because, they argue, there is no way to know if the jury based its general verdict on the improper theory of liability. In response, the law student argues that the focus of the entire case had been on the failure to provide lighting. It was emphasized at closing argument, and almost all of the evidence related to this point. He thus urges the circuit court to exercise its discretion and find that the error was harmless. How should the circuit court dispose of this case? In the early part of this century, the Supreme Court developed a general principle--the Baldwin (1) principle--that mandated the result urged by the law school. Essentially, the court vacated the verdict and granted a new trial due to the ambiguity in the jury's verdict. However, in the 1970s and 1980s, the federal circuit courts began to move towards the law student's position by distinguishing the Baldwin principle in myriad ways. In response, however, a handful of dissenting judges sharply criticized the movement away from the Baldwin principle as a direct contravention of binding United States Supreme Court authority. The appellate court in the law school case is therefore faced with a difficult situation. Should it adhere to possibly outdated Supreme Court precedent? Or should it embrace the modern analysis and its controversial methods of distinguishing the Court's early precedents? What happens if the federal rule, whatever it may be, conflicts with the rule of the state where the law student brought suit? This article endeavors to answer those questions. Part II describes the genesis of the Baldwin principle and the early Supreme Court precedents that nurtured it. It also examines the circuit courts' initial endorsement of the Baldwin principle. Part III moves on to the modern era. It traces the development of discretionary rules, such as the Ninth Circuit's Traver (2) rule and the harmless error exception embraced in other circuits, from the 1970s and 1980s to the present day, and notes the circuit courts' increased receptiveness to discretionary arguments in the past six years. Part III also delineates the arguments advanced by the circuit courts to rationalize their departure from the Baldwin principle, as well as the objections of those old-fashioned judges who refused to ride the wave. Next, in Part IV, a detailed analysis is presented of the various arguments made by the modern circuit courts. After rebutting each of the arguments advanced, Part IV concludes that, contrary to the picture painted by the modern circuit courts, the Baldwin principle is alive and well. Finally, in Part V, a policy-based defense of the Baldwin principle is presented. After examining the requirement of a unanimous jury verdict in federal civil cases, Part V asserts that the appellate courts advocating harmless error analysis greatly overestimate their ability to ascertain when an error is in fact harmless. In addition, because a harmless error rule presents a severe danger of abrogating the unanimity requirement ex post, Part V maintains that it can not be justified when there are less blunt methods, such as a waiver rule, that achieve the same result at less potential cost. …