No matter how meticulous the preparation, litigators know that trials remain unpredictable arenas. Recently, a colleague encountered a procedural hurdle regarding a motion for mistrial that serves as a vital reminder for all litigators. The lesson is simple but easily overlooked in the heat of trial: the timing of your motion for mistrial, and crucially, the timing of the judge’s ruling, can drastically alter the trajectory of your case and your appellate exposure.
If you want a second trial without the delay of an intervening appeal, you must ensure the judge rules on your mistrial motion before the jury is discharged. Here is a breakdown of why this matters and how to avoid the trap of the delayed ruling.
The Legal Distinction: Mistrial vs. New Trial
While often colloquially conflated in the throes of litigation, a mistrial and a new trial are procedurally distinct, particularly regarding appellate rights.
- The legal effect of a mistrial is the equivalent of there having been no trial at all.
- If an order is appropriately characterized as a mistrial, it is a non-appealable order.
- An order granting a new trial is a final, appealable order.
Therefore, securing a true mistrial means your client gets a fresh start at the trial level immediately. Securing a new trial means the opposing party can immediately appeal that order, stalling your case for months or even years.
The Bright-Line Rule in Florida
The Florida Supreme Court established a clear standard governing these scenarios in Keene Bros. Trucking v. Pennell, 614 So. 2d 1083 (Fla. 1993). In that case, a mistrial was granted due to juror misconduct before the jury was discharged. The Court established a bright-line rule based on the moment the jury is released.
Here is how the supreme court’s rule operates:
- When the trial judge grants a motion for mistrial before the jury is discharged, any verdict returned is void.
- When the judge reserves ruling on a mistrial motion until after the trial, the motion must be considered a motion for new trial.
- When the motion is not made until after the discharge of the jury, the motion must also be considered a motion for new trial.
Practical Takeaways for Trial Lawyers
To protect your client and control the procedural posture of your case, keep these strategic points in mind:
- Move for a Mistrial Immediately To preserve an issue for appeal, you must object and move for a mistrial as soon as the prejudicial error occurs. See Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010). Waiting until the end of the trial to see how the jury leans risks waiving the issue for appellate review (as the error would then have to be fundamental—an exception to the preservation requirement—to obtain reversal on appeal). It also guarantees that your motion will be treated as one for a new trial if it comes after the jury’s discharge.
- Demand a Ruling Before Jury Discharge If the trial judge attempts to reserve ruling on your motion for mistrial until after the verdict, respectfully remind the court of the Keene Bros. standard. If the court reserves its ruling until after the jury is discharged, your motion automatically converts into a motion for a new trial. If granted, the opposing counsel will have the immediate right to appeal the order.
- Do Not Rely on Void Verdicts If you successfully secure a mistrial ruling before the jury is discharged, understand that the trial is considered to have never happened. In these circumstances, any verdict returned by the jury is entirely void. A court can neither reinstate the verdict nor enter a judgment notwithstanding the verdict.
By staying hyper-vigilant about the timing of your motions and rulings, you can avoid unnecessary appellate delays and keep your case moving toward a favorable resolution.
