From time to time, eJournal features excerpts from the expanded Seventh Edition of the Massachusetts Bar Association’s award-winning malpractice prevention handbook, Traps for the Unwary, which looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. This Trap of the Week looks at the difference between when a judge must decide a motion for mistrial in civil cases compared to criminal cases.
Traps Example:
Motion for Mistrial
In a civil jury trial, a trial judge is prohibited from taking under advisement a party’s motion for mistrial. The judge must decide the motion at the time the motion is made. Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., 487 Mass. 507 (2021). This contrasts with the rule in criminal cases, where the Supreme Judicial Court encourages trial judges to reserve deciding such motions until after a verdict. The new prohibition in civil cases can force the aggrieved party at trial into a difficult decision where a motion for mistrial could immediately end a trial that otherwise looks like it would end favorably for the aggrieved party. If the aggrieved party chooses to not move for a mistrial, the attorney should ask for an immediate curative instruction and even a rebuke, and, if there is an adverse verdict, move for a new trial under Mass. R. Civ. P. 59 within 10 days after entry of judgment. If the aggrieved party does choose to move for a mistrial, the motion must be made as soon as the party learns of the events that prompt the motion. 487 Mass. at 513.
The expanded Seventh Edition of
Traps for the Unwary was made available to MBA members as a free e-publication during the MBA’s 2021-22 association year. From dangers that arise in uncommon circumstances to hard-to-see risks that are masked by a complex matrix of laws and regulations,
Traps for the Unwary is an indispensable reference tool that benefits both lawyer and client. The original
Traps for the Unwary, published in 1988, earned a first place Award of Achievement from the American Bar Association for service to the bar.
MBA members can access and download their e-copy from their
MBA profile. (See detailed instructions at
www.massbar.org/Traps.)