And on the tenth day, the Court declared a mistrial...

  Photo:  The Court's cow collection on the shelf behind us.

Photo:  The Court's cow collection on the shelf behind us.

Tomorrow we were supposed to be giving closing arguments.

Instead, today the Court sent everyone home.

Can't write about what exactly happened.  This case is going to be tried again.

But can tell you what it's like to have a Judge say they're granting a defense motion for mistrial.

This is the third time I've had the experience.

The first time , it was because I told the jury in opening statement, that we were in court because the defendant filed a jury demand.  The defense lawyer and the judge were both former criminal prosecutors.  The defense lawyer argued my comments violated his client's due process rights because he had a constitutional right to a jury.  The judge agreed, over my sputtering protests that this was a civil case.  This is what I learned from that experience:  even if a judge is completely wrong, it doesn't matter.  Once they announce a mistrial and send the jury home, there's nothing you can say or do to change the fact that the trial will need to start all up again.

The second time, it was because I was able to excuse so many jurors for cause.  There were not enough left to empanel a jury.  That was more interesting than anything.  Sure we were inconvenienced, but the actual taking of testimony hadn't happened yet.

This third time stands apart  because it was done virtually at the close of the case, after the defense had rested.

Here is what happens to a plaintiff lawyer when a judge grants a defense motion for mistrial:

  • Body tenses, bracing in case the judge actually agrees with the defense.
  • Initially hope the words out of the judge's mouth are philosophical meanderings that will eventually come round to the concept of denying the motion.
  • Eventually lose that hope.
  • Hear the order without blinking, grimacing, or giving any cue of being upset.
  • Become inwardly upset.
  • Think about the client having to go through this all over again.
  • Think about how the jurors are going to feel when they get the phone call not to return.
  • Try to understand the court's ruling, then realize there's nothing to understand because it is over and done.
  • Think of all the reasons why the judge shouldn't do this.
  • Look at the defense lawyers who are not making eye contact.
  • Consider the defense lawyers getting paid for trying a case that they are going to try all over again (and bill for all over again).   Am not saying defense lawyers who get paid by the hour have an incentive to ask for a mistrial at the end of a case.  Am not saying that...
  • Unplug computer, start rolling up cords, put projector in case, all while the judge is still talking about some type of logistical issue.  Have temporarily lost the ability to hear what the judge is saying.  Good thing co-counsel is paying attention.
  • Hear the Judge say they will give the jurors our contact info so they can talk to us if we wish.  We wish.
  • Email office announcing the mistrial and ask for Mike to come pick up the big screen.
  • Begin setting up appointments on other cases  to fill tomorrow now that will not be in trial.
  • Temporarily ignore the questions from law firm asking what happened.
  • Listen to tummy rumble due to spending the lunch hour researching legal grounds for mistrial in the law library
  • Decide that being upset won't help anything.
  • Analyze feelings and decide more  resigned and irritated than actually mad.
  • Channel irritation, pick up Nala at doggie day care and get a salad at Whole Foods.
  • Think about eating salad, but instead  invite co-counsel over to the house to unwind.
  • Which is nice.
  • After she leaves for airport, eat salad which is delicious.
  • Go for run with Nala that includes a lot of wind, the sun going down, and the slightest amount of drizzle at the very end.
  • Make popcorn and watch yesterday's episode of The Good Wife on Amazon.  It's not the same without Will.
  • Watch an episode of Drop Dead Diva. Decide it's also past its prime.
  • Begin to write blog
  • See email come in from one of the jurors.  Asking what happened.