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Americans take pride in a democratic system that provides for trial by jury of one’s peers in both criminal and civil cases. In civil cases involving personal injuries or wrongful death, plaintiffs and their counsel typically desire trial by jury. A trial in a California state court involves decision making by 12 citizens empaneled as a jury. A plaintiff in a civil case will prevail if 9 out of 12 jurors decide in her favor.

However, despite a constitutional requirement of trial by jury, the jury’s decision in a civil case can be disregarded or modified by the trial judge or by one of more appellate justices. In a jury trial, the trial judge is sometimes referred to as the “13th juror,” but the judge’s power is actually much greater than the phrase implies. For example, if the trial judge determines that the jury has awarded an excessive amount of damages, the trial judge has the power to reduce the damage award and require the plaintiff and her attorney to accept the lower figure or risk a new trial. Also, a judge can reverse a verdict by a jury in favor of a defendant. Similarly, appellate judges have the right to adjust a jury verdict that appears to either shock the conscience or suggests that the jury may have been overcome by undue passion or prejudice.

For example, in a case recently decided by the Court of Appeal in Orange County, California, entitled Bigler-Engler v. Brey, Inc., a high school athlete suffered a knee injury which required her to undergo arthroscopic surgery by a medical care provider. The medical care provider, following the surgery, gave the athlete a Polar Care cold water pad to secure against her knee. The hope was that the Polar Care pad would accelerate healing. Instead, the Polar Care pad caused necrotic tissue to form on the athlete’s knee. The athlete required a second surgery to remove the dead tissue which created an open wound requiring additional surgical procedures thereafter. The athlete experienced residual knee pain and discomfort and testified at an eventual medical malpractice trial that she lost the ability to participate in certain activities. The case was tried before a jury which awarded the athlete $5.1 million in noneconomic, or pain-and-suffering, damages. The case eventually made its way to the Court of Appeal where a three-judge panel decided that the jury’s verdict was improper and the result of undue prejudice and passion. The Court of Appeal reduced the award to $1.3 million.

Therefore, it is important to remember that the jury’s decision in any civil matter is never the final word when it comes to an award of damages.

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