Personal Injury

Retrials in Personal Injury Cases

By Janet Portman, Attorney
Even after a personal injury case goes to trial, a number of pre- and post-verdict scenarios could result in a do-over.

The vast majority of personal injury cases (and most civil lawsuits in general) never make it to trial. Because trials are so expensive to mount (and because the outcome is never assured), most litigants and their lawyers negotiate a settlement. Now and then, however, a personal injury lawsuit goes to trial, and in rare situations the proceedings may stop mid-stream. Or, a verdict is reached, but a disappointed litigant appeals (or threatens to appeal) the outcome to a higher court.

If the trial is stopped (and a “mistrial” is declared), or if the appellate court overturns the case, will the lawsuit be retried? This article explains when and how retrials occur in personal injury cases. (For the criminal law side of this same issue, see Retrials in Criminal Cases.)

Retrials and Appeals

Disappointed litigants in personal injury cases almost always stop fighting once the verdict is in. Even when they feel that they have a good argument for overturning the verdict or award, they know that filing and prosecuting an appeal is an expensive process.

The losing party (the appellant) must normally pay for trial transcripts, filing fees, and the cost of an appellate lawyer. Particularly when the monetary award is high, the appellant must post a bond with the court, as evidence of its ability to eventually pay the judgment if it loses the appeal. By the end of trial, many litigants are simply out of money and ready to move on.

However, some litigants not only have the wherewithal to appeal—they also have very good legal arguments to support overturning the verdict, the judgment, or both. In these situations, litigants often strike a deal: In exchange for not filing the appeal, the loser offers the winner less money than the award provided. Here, the winner takes home less money, but doesn’t run the risk that the appellate court will side with the opposition and send the case back to trial. Once that happens, a new trial and a new jury may find for the other side, and the winner at the first trial can end up with nothing. (More on this gambler’s calculation below.)

A variation on the scenario just described involves an appeal that does, in fact, go to the appellate court and ends up with an opinion overturning the verdict and/or the money judgment. Here, the horse trading is much the same—neither side can know how the second trial will end up. But, they do know about the strengths and weaknesses of each other’s case, making them well-informed negotiators. Often, the parties will settle rather than take a chance of losing entirely, and a retrial will not happen.

Retrials After Courtroom Mistakes or Stalls

Incidents that happen mid-trial may also result in a declaration of a mistrial, which sets up the possibility of a retrial. Judges declare a mistrial for misconduct or irregularities that legally or practically prevent the trial from proceeding. A mistrial is also appropriate when these incidents prevent either litigant from having a fair trial. A mistrial can also be precipitated by misconduct of the judge, the lawyers or parties, or the jurors.

Examples of situations in which a mistrial could be declared include:

  • a numerically insufficient jury, as might happen when jurors get sick and drop out, alternates are not available, and the parties decline to proceed with a smaller jury
  • the death of the judge before a judgment has been reached
  • misconduct by counsel, which can’t be mitigated by the judge’s admonition to the jury to disregard it
  • a hung jury, when the judge declines to direct the verdict (state law may give the court the ability to supply a verdict in light of the jury’s inability to reach a decision), and
  • the judge or a juror is called as a witness (in this situation, a mistrial must be declared).

Retrials: Are They Just Like the First Trial?

When a judgment is reversed on appeal, the personal injury case can be retried from scratch—in most respects. A major exception concerns a legal doctrine called the “law of the case.” It means that if the higher court finds that the lower court erroneously applied the law to an important aspect of the case, and if this error played an important role in reversing the judgment, the higher court’s interpretation will apply in any retrial.

“The Law of the Case”

For example, imagine a trial court judge who admitted evidence on a crucial issue in the case—and an appellate decision that ruled that the judge should not have done so. In any retrial, that evidence will not come in—it’s “the law of the case.”

Some courts, however, will relax the rule when strict adherence would be unjust (for example, when another appellate court has, in the interim, changed the law such that the reviewing court’s holding would no longer be valid). Other examples of appellate court rulings that become the law of the case include ruling on the trial court’s interpretation of the meaning of a document (such as a release signed by the plaintiff), or the validity of a judge’s order.

“The Law of the Case” Doesn’t Apply to Findings of Fact

The doctrine of “the law of the case” does not extend to the jury’s conclusions as to the facts. When the case is retried, the new jury (or the new judge if it’s a “bench trial”) will be free to reach its own conclusions. For instance, in a personal injury case, if the original jury found that the plaintiff’s future lost earnings are $500,000, the jury hearing the case a second time could make its own calculations and set future lost income at $300,000.

In personal injury cases in particular, this uncertainty results in deal-making both before and after an appeal. Imagine a personal injury defendant who loses at trial and faces a hefty monetary judgment. The defendant, however, has a very strong argument for reversing the judgment—perhaps the court instructed the jury incorrectly on how to measure damages. But pursuing an appeal and winning it are no guarantee that the next jury won’t award the plaintiff an even higher amount.

On the other hand, the jury could find that the defendant was not liable at all, leaving the plaintiff with nothing. Because both defendant and plaintiff stand to lose more if the case is retried, they often reach a deal: The defendant won’t pursue the appeal in exchange for the plaintiff agreeing to take less in damages. An agreement like this can be reached before the appeal is even filed, or even after it’s been won.

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