Oregon State Bar Bulletin — JULY 2003

Abandoning ‘We Can’t Tell’
Does Shoup run afoul of the Oregon Constitution?
By Susan Marmaduke & Bob Steringer

When does error require retrial? Oregon’s so-called harmless error statute, ORS 19.415(2), tells us that an error warrants reversal or modification of the judgment only if the error 'substantially affect(ed) the rights of a party.' That, of course, only raises new questions: When does an error 'substantially affect the rights of a party?' Does a party have a 'substantial right' to a fair trial, or only to a correct outcome? How does the reviewing court resolve uncertainty as to whether an error affected the outcome? What happens when the effect of error cannot be determined without retrying the case?

Sometimes, error is sufficiently serious to cast doubt on the verdict, but the reviewing court cannot tell whether the error actually caused an incorrect outcome. For example, a plaintiff may allege that a defendant was negligent in two different respects, one of which one is valid, and one of which is unsupported by evidence or legally incorrect. If the jury returns a general verdict of negligence, the reviewing court may be unable to tell whether the verdict was based on the valid specification, or on the defective one. As one commentator observed, '(t)he general verdict is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi.'1

Until recently, the Oregon Supreme Court resolved such inscrutability in favor of ensuring that litigants achieve a correct outcome. If the reviewing court could not tell that the verdict had been unaffected by the erroneous submission of one or more (but fewer than all) specifications to the jury, the court would reverse the judgment and remand for a new trial. The court dubbed that doctrine the 'we can’t tell' rule in Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990).

In January 2003, the Oregon Supreme Court overruled Whinston and abandoned the 'we can’t tell rule' in Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P2d 928 (2003). Based on the court’s new understanding of Oregon’s harmless error statute, it held that uncertainty about whether an erroneously submitted specification had affected the outcome must be resolved by affirming the judgment. Of course, if only invalid specifications were submitted to the jury, the reviewing court 'can tell' that the verdict was necessarily the product of legal error and reversal is required. However, if fewer than all specifications were deficient, the reviewing court 'can’t tell' whether the jury based its general verdict on a valid specification or on an invalid one. In such a situation, the error might have affected the outcome, but its actual effect cannot be ascertained without a retrial. Under Shoup, the reviewing court resolves such uncertainty by affirming the judgment notwithstanding the error.

Is the rule announced in Shoup inconsistent with Amended Article VII, section 3, of the Oregon Constitution? That section states, in part:

'If the Supreme Court shall be of opinion, after consideration of (the record) * * *, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial * * *.

The text of that section appears to authorize the reviewing court to affirm notwithstanding error only when it can tell that the outcome was correct. Uncertainty is resolved in favor of a new trial, either on the record in the appellate court, or in the trial court after remand.

Historical context
The late Chief Justice Roger Traynor of the California Supreme Court has described a time 'when no error was lightly forgiven. In that somber age of technicality the slightest error in a trial could spoil the judgment. The narrow bounds of propriety were entirely surrounded by booby traps.'2 In those early days, appellate courts exercised their common law 'supervisory powers' to reverse even for errors that obviously made no difference to the outcome. Appellate courts came to be viewed as 'impregnable citadels of technicality.'3

A movement developed to prevent reversals for merely technical errors. By the early1860s, the Oregon legislature had enacted a harmless error statute providing that a judgment shall be reversed or modified only for 'errors substantially affecting the rights of the appellant.' General Laws of Oregon 1843-1762, ch. 6, title IV, Section 533. Under that standard, cases involving errors that were clearly immaterial were affirmed. Cases involving errors that might have affected the outcome were reversed and remanded for a new trial in the trial court. In 1915, Justice Thomas A. McBride wrote for the majority of the Oregon Supreme Court that, before the Oregon Constitution’s judiciary article was amended in 1910, 'Appellate courts, with all the facts before them, were compelled, if the lower court had created an error which might have resulted to the prejudice of a litigant, to be content with pointing out the error, and to send the case back to be retried before a jury * * *.' Hoag v. Washington-Oregon Corporation, 75 Or 588, 611, 147 P 756 (1915) (emphasis added).

However, as Justice McBride observed, the remand procedure raises '* * * the possibility in every case that some other error equally serious might be committed and another appeal and another reversal for the new error result.'Id. Discontent developed over the multiplicity of trials created by the necessity of remand for retrial in the lower courts.

As is often the case, the people of Oregon reacted to that concern through the initiative process. In 1910, the People’s Power League placed a measure on the ballot to amend the Oregon Constitution’s judiciary article in several significant respects. The proponents described one of the purposes of the initiative as follows:

* * *Every voter knows of hung juries in civil cases, followed by new trials, appeals to the Supreme Court, reversals and another new trial, and perhaps yet another appeal to the Supreme Court. There have been such cases in the Oregon courts. One purpose of this amendment is to make that kind of injustice impossible in which the corporation or the rich man wins because of the longest purse.4

The voters of Oregon narrowly passed the measure. Section 3 of Amended Article VII addressed the petitioners’ concern over retrials. Most Oregon lawyers are familiar with the first sentence of that section preserving the right of trial by jury. Most of us are less familiar with provisions of that same section that authorize the reviewing court to retry the case on the record and to enter such judgment as it deems appropriate.5

Justice McBride authored the first draft of the amendment to Article VII shortly before his appointment to the Oregon Supreme Court.6 Five years after its enactment, he summed up his understanding of the amendment as follows: '(I)t was the intent of the amendment to leave the appellate court the discretion either to send a case erroneously tried before a jury back to be retried, or to retry it here in the same way that it would re-examine an equity case * * *.' Hoag, 75 Or at 614.

It is evident from McBride’s decision in Hoag that he did not view the Oregon Constitution as permitting the reviewing court to affirm notwithstanding error that 'might' have affected the outcome, without first retrying the case on the record and satisfying itself that, in fact, the outcome was correct. As the Oregon Supreme Court later explained, with the adoption of Amended Article VII, section 3: 'Error having been demonstrated upon the trial * * * it became the duty of the appellate court either to retry the case on the record and enter judgment thereon or remand it to the lower court for retrial. * * *' Mount v. Welsh, 118 Or 568, 598, 247 P 815 (1926).

The amendment to Article VII simply gave the reviewing court a choice as to where that retrial should occur.

For several decades after the amendment was adopted, the Oregon Supreme Court often invoked Amended Article VII, section 3 to review cases on the record. For example, in Zimmerman v. West Coast Trans-Oceanic S. S. Lines, 199 Or 78, 258 P2d 1003 (1953), one of multiple negligence specifications was unsupported by evidence. The Oregon Supreme Court perceived only a 'remote possibility' that the jury had based its verdict upon the defective specification in light of undisputed evidence of negligence under a valid one. The court affirmed after invoking the Article VII, section 3 procedure, determining that the judgment was 'such as should have been rendered in the case' based on its 'view of the whole record.'

Over time, however, the practice fell out of favor. In 1952, Justice Lusk discussed it in a dissenting opinion::

'I do not suggest at this time a re-examination of the doctrine of Hoag * * * and the cases which follow it, (stating) that this court is authorized under Art. VII, Section 3 of the constitution, in certain circumstances to re-examine the evidence in a law action that has been tried by a jury and to enter judgment based upon such re-examination. But the power so asserted, if it is to stand, should be exercised only with utmost caution and in rare instances.' Shelton v. Lowell, 196 Or 430, 451, 249 P2d 958 (1952).

By 1990, the Oregon Supreme Court had expressed a strong preference for remanding cases to the circuit court for retrial, rather than trying the case on the record itself. In Whinston, the court quoted Lusk’s dissent with approval and characterized the procedure authorized by Article VII, section 3 as an 'extraordinary' power. Whinston, 309 Or at 358.

The effect of Shoup is to affirm all judgments entered on a general verdict for the plaintiff where one of multiple specifications is deficient unless the appellant can show that the error affected the outcome. In such a situation, the reviewing court cannot be certain that the jury found facts giving rise to liability under the law. To the contrary, the jury might have based its verdict on a specification that was wholly unsupported by evidence, or that is time-barred or otherwise legally deficient. (Query how the appellate court could perform a review of a punitive damages award sufficient to satisfy due process requirements without having a valid finding of liability as the starting point for that inquiry.) In Shoup, the court interpreted the harmless error statute as requiring it to affirm such questionable judgments without invoking the Amended Article VII, section 3 procedure for retrying the case on the record or otherwise satisfying itself that the outcome was correct notwithstanding the error.

The Oregon Constitution appears to require a different approach. Amended Article VII, section 3, allows the reviewing court to affirm notwithstanding error only when the court is able to form the opinion that the outcome below was correct. Some errors are so clearly immaterial that the reviewing court can readily ascertain that the outcome was unaffected by them. However, if the reviewing court 'can’t tell' whether the verdict was based on a defective specification or a valid one, the judgment cannot stand. In such a situation, if the appellate court chooses not to invoke the 'extraordinary' power granted by Amended Article VII, section 3 to retry the case itself, the court must remand it to the circuit court for retrial. The Oregon Constitution resolves such uncertainties in favor of ensuring a correct outcome.


1. Edson R. Sunderland, Verdicts, General and Special, 29 Yale L. J. 253, 258 (1920).

2. Roger J. Traynor, The Riddle of Harmless Error 1 (1970).

3. Marcus A. Kavanaugh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A. J., 217, 222 (1925).

4. Pamphlet containing a copy of all measures * * * submitted * * * at the regular general election * * * on the eighth day of November, 1910, at 177.

5. '* * * If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.' Or. Const. Art. VII, section 3 (amended 1910).

6. Hall S. Lusk, Forty-Five Years of Article VII, Section 3, Constitution of Oregon, 35 Or. L. Rev. 1 (1955).


The authors are attorneys with Harrang Long Gary Rudnick. Marmaduke is a shareholder in the Portland office. Her practice emphasizes complex litigation and appeals. She has a wide range of experience litigating disputes over business transactions, closely held companies, trusts, intellectual property and torts. Steringer joined the firm in 2002 as an associate in the Portland office’s litigation and business practice areas. Prior to joining the firm, Steringer was an associate with Williams, Kastner, James & Urrutia.

© 2003 Susan Marmaduke & Bob Steringer

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