How have the courts dealt with the issue of improper jury instruction in a civil case?

[189 Cal.App.3d 359] We believe the reasoning in United States v. Marshall (9th Cir.1973) 488 F.2d 1169, is applicable. There, a reporter's transcript on appeal contained a jury instruction which, if accurately reported, was prejudicially erroneous. Immediately on receiving appellant's opening brief, the trial judge made and filed a certificate flatly stating the reporter's transcript was incorrect and he had given the instruction correctly. The circuit court found it significant that the record contained no statement from the reporter to the effect her transcription was inaccurate, her notes erroneous or that the judge did not say what her notes reflected. Moreover, the court stressed it is what the jurors understood the judge to say, not what the judge believed he said after reviewing the written form containing the intended instruction, that is important. (United States v. Marshall, supra, 488 F.2d at p. 1196.) ¹⁸

Here, an experienced court reporter seated closer to the trial judge than any juror, whose responsibility was to accurately

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