News & Events

Trial Practice – Mistrials

What are your options after you have put on your best, error-free case and you believe you are entitled to a jury verdict only to have the trial judge declare a mistrial after the jury has been out an extended time?

Is your only option to get a new trial date or settle?  Is an interlocutory appeal from the judge’s order of mistrial permitted? Even so, what is the likelihood that the appeals court will take the appeal and review the trial court’s order which is based on the exercise of sound discretion?  In the light of the fact that the trial court – and the appellate court – has a fully developed evidentiary record with testimony and exhibits, the most prudent and  effective remedy is to consider whether to record supports the filing of a timely motion for judgment notwithstanding mistrial.

After a week-long defamation trial in Hinds County Circuit Court, the jury failed to reach a verdict, and the trial judge declared a mistrial.   Faced with retrying the case with the same witnesses and having yet another deadlocked jury, the media defendant returned to court the next week and moved for a judgment of dismissal notwithstanding mistrial.  The trial court granted the motion finding that as a matter of law the plaintiff had failed to present a triable issue of fact and that the defendant was entitled to a judgment of dismissal.  On appeal the Supreme Court of Mississippi treated the novel motion as the equivalent of a renewal of a prevailing party’s motion for a directed verdict.  Viewing the sufficiency of the evidence in a light most favorable to the plaintiff, the appeals court nonetheless affirmed the judgment of dismissal.  See Perkins v. Miss. Publishers Corp., 241 So. 2d 139, 140 (Miss. 1970) (affirming trial court’s order granting judgment for defendant notwithstanding mistrial).

In Perkins, supra,  the appeals court was permitted to reviewing the sufficiency of the evidence solely because the defendant had first moved for judgment notwithstanding mistrial, and the trial court had ruled in the defendant’s favor.  Even though an appeal as of right would not be available if the trial court denies the motion for judgment notwithstanding mistrial, review by interlocutory appeal is a possible avenue for relief and based on the appropriate evidentiary record should be considered.

John C. Henegan