New York City Personal Injury Law Blog

What happens after the Judge has Declared a Mistrial for Your Personal Injury Case

Posted on Mar 3, 2015 in Personal Injury FAQs

Your personal injury case has gone to trial and the judge has declared a mistrial. How soon afterwards will your case be retried?

Reasons for Declaring a Mistrial

Personal Injury Case

After declaring a mistrial, the retrial may take a long time to begin. 

The answer is that it depends. Here is an example. A lawyer is representing a person in a personal injury case. The person is staying at a resort and he has been injured in a sledding accident. The lawyer keeps referring to the sled that his client was on, as a pie pan or a pie dish, because the sled was nothing more than a saucer about thirty inches in diameter that was made by that person in their garage.

The judge had a legal reason for not allowing the lawyer to refer to the sled as a pie pan. However, the lawyer kept referring to the sled as a pie pan, in front of the jury. The lawyer wanted to convey to the jury and make them realize that the sled was a child’s toy, which his adult client was riding when he went down the hill, as the accident occurred, and suffered injuries from.

Every time the lawyer referred to the sled as a pie pan, the defense attorney objected, the judge sustained the objection, and specifically told the lawyer not to use the term. However, the lawyer continued to do it, in his client’s interests.

The lawyer knew that there was the possibility of the judge declaring a mistrial when he called the sled, a pie pan, the fourth or fifth time. However, the lawyer felt he had to keep doing it, in order to convey to the jury that what his client was riding was clearly inappropriate for an adult.

In such a situation, if the judge declared a mistrial, he would have yelled at the lawyer or have admonished that attorney in a clear tone. However, the lawyer has an obligation to his client, to represent him as fully and properly as the lawyer can, without overstepping the bounds of what is proper.

In this case, the lawyer believed that he was not overstepping the bounds, and he believed the law was on his side. If the judge declares a mistrial, in all likelihood, he would dismiss that jury. The two attorneys would then have to go back to the jury selection process, and begin choosing a fresh jury, all over again. In all likelihood, this would be done on the very same day that the mistrial was declared.

When will the Retrial Take Place

However, there are instances where the judge can have the attorneys come back a day, a week, or even months later because there might be other legal issues that might have to be resolved before the new trial can start all over again. Hence, there is no dictating for sure when the case will be retried. It will depend on how monumental the case is, and whether there are legal issues pending that need to be resolved, before starting another trial.


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I referred Rosenberg, Minc, Falkoff & Wolff to a friend needing help with a birth injury & medical malpractice case. Having worked with founding partner Daniel Minc myself on a car accident case, I was sure they would be able to deliver results.

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