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32 J. Am. Jud. Soc. 142 (1948-1949)
The Case for the Special Verdict

handle is hein.journals/judica32 and id is 144 raw text is: JOURNAL OF THE AMERICAN JUDICATURE SOCIETY well trained men to make, interpret and apply our innumerable laws and regulations is plain. As long as we prefer a government of laws, not men, the lawyer's job is bound to be crucial. The mission of the Survey is to find facts about lawyers in our society and to subject those facts to the analysis of the most competent men, who may or may not be lawyers. The realization that both the search and the analysis are powerfully affected by consciously and semi- consciously held hypotheses or theories, similar if not identical to the ones stated above, aids in understanding why lawyers must be in com- mand of a study of lawyers. More significantly, this awareness will assist the Survey partici- pants to find the facts that will be useful in prompting and shaping change where it is necessary. When the Survey has completed its assign- ment, there will yet be a vast amount of undone research on these topics. It is not likely that the Survey will uncover adequate evidence to support each of the above stated hypotheses, thus providing a background for constructive remedial action in every instance. Whatever the outcome, the legal profession is honor bound to persevere in its self-examination and to continue matching the ought to be with the is, seeking and welcoming non-lawyer assist- ance at every stage. For many centuries the doctor has been confronted with the challenge, ofttimes de- risive, Physician, heal thyself! The lawyer, with his vaunted prowess in organizing human complexities and settling vexatious disputes, is with equal aptness enjoined, Lawyer, counsel thyself. The Survey of the Legal Profession is a collective venture to do just that. The Case for the Special Verdict By JEROME N. FRANK On January 19, 1945, a car repairman named Buzzy Skidmore was injured in the Baltimore and Ohio yards at Lorain, Ohio. A New York federal jury awarded him $30,000 damages, and the defendant railroad appealed, charging, among other things, that the trial court had erred in denying its request for a special verdict. Judge Frank, speaking for the Court of Appeals for the Second Circuit, felt obliged to affirm, but did not dismiss the subject until he had delivered the following excellent discussion of special verdicts and their possibilities, which we gladly reprint as a notable addition to the literature on jury trial and its improvement. Judge Frank's original footnotes, 64 in number, exceed the text in volume and had to be omitted for lack of space here. We have included only certain ones of bibliographical value, without quotations. For the full opinion and its annotations, see Skidmore v. Baltimore and Ohio R. Co., 167 F. 2d. 54-70, decided March 15, 1948. UNDENIABLY, the verdict affords no satis- factory information About the jury's findings. But almost every general verdict sheds similar or even greater darkness. Such verdicts ac- count for much (not all) of the criticism of the civil jury. Some revaluation of the jury system seems not unjustified in the light of the fact that ours is the only country in the world where it is still highly prized. Lauded as es- sential to individual liberty and democracy, and imported in the late eighteenth and nine- teenth centuries from England and the United States, trial by jury was adopted in criminal cases on the European continent, but subse- quently ceased there, in pre-Hitler days, to maintain its popularity. 'Nor can that attitude be explained as a symptom of decreased inter- est in democracy and individualism. For Scot- land, surely long a land of liberty-loving indi- viduals, having in the sixteenth century virtu- ally rejected the civil jury, re-adopted it in 1815, and, still later, all but gave it up. In England, whence trial by jury came to us, it is now seldom employed in civil suits, has been abandoned in criminal prosecutions other than for major crimes and even there is used de- [ VOL. 32

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