Winning a personal injury civil case usually is difficult and requires a great deal of effort. The fact that the case has gone to trial means that the defense side feels that it is worth the risk and the defense lawyer and the defendant believe strongly that a jury could find that there is no liability. No settlement has been reached and battle has been joined. The defense side are putting their time and effort into defeating the claims of the plaintiff. In a civil case the defense side usually involves an insurance company, an institution, business or municipality so there are ample resources available for the defense to fight the plaintiff’s claims. If it is a medical malpractice case, it usually means that the medical establishment is also there to provide experts and other help. As I have discussed before, the plaintiff’s attorney usually fronts the expense of prosecuting a civil case. Once the plaintiff wins this battle and the jury has come in with a verdict and made an award to the plaintiff for the damages proven at trial, the case may not be over. The defendant always has the right to appeal if the defendant thinks there was a legal error by the judge or the damage award was excessive based on the awards of similar cases that have been sustained on appeal. Of course, the plaintiff can also appeal if he or she believes he or she lost because of legal error or the award was not sufficient to fairly compensate for the damages proven.

When an appeal is taken, legal principles and prior case law precedent are supposed to be applied and followed by the appellate justices. The basic rule is that the appellate court that is the first level of appeal will not disturb the jury’s decision unless there is a clear legal reason to do so based on existing law even if the court may not like the result. The appellate justices are not supposed to substitute their view of the facts presented to the jury and overturn the jury’s verdict on that basis unless they determine that there is absolutely no basis in the evidence for the fact finding by the jury. Certainly the justices are not supposed to overturn the jury’s verdict because they want to affect policy. This is what gives some order to the prosecution of the case at the lower trial level. Nevertheless, as is evident by the politics surrounding the nomination and confirmation of our U.S. Supreme Court justices, there can be politics at play with state court appellate judges whose job it is to uphold justice whether it is criminal or civil. Therefore, sometimes the appellate judges’ decision is affected so as to create an injustice for the winner of the case in the lower court. If, for example, in a civil case, an appellate justice feels that it is his or her role to protect municipalities from liability as a matter of public policy that judge may vote to reverse the verdict won by the plaintiff against the municipal defendant on a ground that was not part of the trial or a theory proved by the defendant at the trial level. The consideration could be what appears to be reasonable on the surface. For example, if the plaintiff is allowed to prevail, there could be a multitude of similar suits that might be difficult for municipalities to pay for. Nevertheless, the plaintiff in that case that has been appealed played by the rules in force based on the laws and precedent in existence at the time of the trial. The plaintiff and his or her lawyer went through the time, expense and emotional turmoil required to prosecute the case, starting with pleadings and proceeding from depositions through a trial and then convincing the jury through evidence and testimony to find for the plaintiff against the defendant. The plaintiff won the trial. Obviously, such a decision by the jury in a trial presided over by a judge who is making legal rulings based on the law both legislative and case precedent should not be overturned unless there were serious legal errors. In other words, errors that prevented a fair trial and may have wrongfully contributed to the verdict against the defendant. If the verdict is overturned, the case may be re-tried which means doing the whole thing over again or worse for the plaintiff, the case dismissed. This is a disaster for the plaintiff unless the next higher appellate court agrees to review the intermediate appellate court’s decision to dismiss the case and overturns what that appellate court did. The higher appellate court, the last appellate resort, does not take the case unless there was a split decision by the justices at the lower level or there is some unique or new question of law the court wishes to weigh in on so as to declare their wisdom on what they believe should be the applicable law of the state on the question presented. That means if the appellate court’s decision is not split or the higher appellate court does not believe there is a novel question of law for them to weigh in on, they will not agree to review the decision of the lower appellate court, even if it means that the decision is patently unjust to the plaintiff who won the case at the trial level and did the work and suffered the expense required for the appeal. This usually means that the plaintiff and the plaintiff’s attorney who won the case and laid out the money and effort to win the battle at the trial level have lost everything. This is a result that should almost never happen if the appellate judges do their job impartially, following the applicable law and appellate principles. Unfortunately, if the judges have an agenda, this unfair result can happen. This is a danger that few plaintiffs in civil cases are aware of and why the prosecution of most civil cases is an act of courage in face of the uncertainties of how the jury will view the evidence presented in the initial contest and then what the appellate courts will do if the case is appealed.