Nine Votes. That's Nine Votes. On Every Question.

    Unlike the federal courts, where verdicts must be unanimous, California courts require that in Civil cases, 3/4 of all jurors agree.  That's Code of Civil Procedure section 618.  In most cases of any consequence, we use "special verdicts" -- a series of questions for the jury to answer, usually ending with questions to be answered -- if necessary -- about damages.  After the verdict is announced in open court, either side can request that the jurors be individually polled, and if nine of them don't each agree with the verdict's answer to each of the questions, back to the room they go.  (It doesn't have to be the same nine for every question.)

    In complex cases with multiple causes of action, the special verdict can have many questions and go on for pages.  Drafting special verdict forms (and arguing them to the jury) is therefore very much an art form. 

    In order to avoid confusion, many trial judges give each juror a colored copy of the verdict form to fill out with his or her final vote, so that each will have a "cheat sheet" when polled.  Some of the more creative judges hand out "yes/no" paddles for the jurors to raise indicating their vote on each question.

    In the case of Keener v. Jeld-Wen (May 7, 2009) ___Cal.4th___ (S16430), decided last week by the Cal Supremes, the trial court messed up the polling, neglecting to poll one of the jurors on the verdict question apportioning liability between the parties.  Since the verdict was over $4 million, and the verdict apportioned 80% of the fault to the defendant, this was of more than academic interest to both sides.  And the defendant thought it worthwhile to discuss the significance with the Court of Appeal and then the Supremes.

    Too bad for the defendant, who should have discussed it with the trial judge.  And before the jury was sent home.  Per the Cal Supremes:  the verdict is presumed correct.  And if the irregularity isn't raised in time to correct it, the irregularity is waived.

Comments

[Thomas J. Hurney, Jr.]

As part of an overall tort reform package for medical negligence cases (modeled somewhat after MICRA) the West Virginia legislature in 2003 increased the size of the jury from 6 to 12, with nine required for a verdict. W.Va. Code 55-7B-6d was struck down as unconstitutional because it violated the separation of powers clause in the WV constitution in Louk v. Cormier, 622 S.E.2d 788 (WV 2005).

[John M. Hochfelder, Esq.]

In Duffy v. Vogel, a medical malpractice case, New York's highest appellate court ordered a new trial because of the trial judge's failure to poll the jury. The verdict stated that the defendant doctors had not committed malpractice but nonetheless awarded plaintiff damages! I discuss the case at my New York Injury Cases Blog on 4/5/09.