Illinois Appellate Court Outlines Procedure for Objection and Request for Mistrial

In a lawsuit and jury trial in which the defendant, Mel Richard Krumske, admitted liability causing injury to the plaintiff, Kevin Burkhamer, Burkhamer’s attorney asked on direct examination whether the defendant ever called the plaintiff to “apologize” for causing the crash. Krumske’s attorney then immediately objected and requested a mistrial. The trial judge sustained the objection and acknowledged at a sidebar that an instruction to the jury to disregard what might be an inadequate remedy for the unfair prejudice likely caused by the improper questioning would be given. However, the judge postponed ruling on the request for a mistrial and did not rule on the motion to render a mistrial until after the jury’s verdict.

At the end of the jury trial on damages, the verdict for the plaintiff Burkhamer was $175,000. The jury was discharged. But before the judgment was entered, the defendant’s attorney reminded the judge about the lingering motion for a mistrial. Concluding the verdict might have been “inflated by passion” the judge said she was granting “the motion for a new trial,” although Krumske, the defendant never filed a posttrial motion.

The Illinois Appellate Court accepted an immediate appeal by the plaintiff under Illinois Supreme Court Rule 306.

In providing procedural lessons about postponed rulings, posttrial motions and the distinction between mistrials and new trials, the Illinois Appellate Court for the First District reversed the trial judge’s decisions.

Krumske “waived his right to a mistrial by waiting until after the jury returned its verdict to seek a ruling on his motion for a mistrial” and he “waived his right to a new trial by failing to file a posttrial motion.”

A mistrial is defined as “either a trial that the judge brings to an end, without a determination on the merits, because of the procedural error or serious misconduct occurring during the proceedings, or a trial that ends inconclusively because the jury cannot agree on a verdict.” Redmond v. Socha, 216 Ill.2d 622 (2005).

“A motion for a mistrial is a procedural tool designed to cut short a trial for legal reasons which preclude a verdict and judgment.” McGrath v. Chicago & North Western, 1 90 Ill.App.3d 276 (1989). “This motion prevents parties from getting two chances at a verdict.” McGrath, 190 Ill.App.3d at 279.

A motion for a mistrial must be made before a verdict is rendered. It is untimely if it is made either after the verdict is rendered or a judgment is entered on the verdict.

“When the jury returns the unanimous verdict, a motion for a mistrial is untimely and inappropriate.” Redmond, 216 Ill.2d at 640.

In this case, the plaintiff argued that the motion for the mistrial was untimely because he waited until after the jury returned its verdict before again asking the judge to make a ruling on his motion for a mistrial.

The defendant maintained that his motion for a mistrial was timely and that it was made during the questioning of the plaintiff and the trial court had not entered a judgment on the verdict at the time he requested a ruling on the motion.

In the McGrath case, plaintiffs waited until the jury returned a verdict to seek a ruling on their motion for a mistrial. The plaintiffs filed a posttrial motion seeking a new trial contending inter alia that the trial court should have granted the motion for a mistrial. This court ruled that the plaintiffs had waived their request for a mistrial as a basis for a new trial by failing to ask for a ruling at the time the trial court determined their request was one for a mistrial, and then by failing to renew the motion before the jury returned its verdict. McGrath, 190 Ill.App.3d at 280.

The record in this case shows that the defendant did not request an immediate ruling at the time he moved for a mistrial and agreed to the trial court’s reservation of the ruling on the motion. At no time before the return of the verdict did the defendant’s lawyer seek a ruling on the mistrial. A movant has the responsibility to obtain a ruling on his motion if he is to avoid forfeiture on appeal. Hernandez v. Pritikin, 2012 IL 113054.

“A mistrial and a new trial are not the same thing in name or effect. There is a marked different between a court granting a motion for a new trial and declaring a mistrial; the former contemplates that a case has been tried, a judgment rendered and on motion therefore said judgment set aside and a new trial granted, while the latter results where, before a trial is completed and judgment rendered, the trial court concludes that there is some error or irregularity that prevents a proper judgment being rendered in which event a mistrial may be declared. A mistrial is a matter of law, with a new trial results with the exercise of discretion. A mistrial is a nugatory trial, while a new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried or litigated de novo.” Williams v. Deasel, 19 Ill.App.3d 353 (1974). In the Williams case, the court recognized that while a litigant must seek a new trial in its posttrial motion or it is waived, the trial court may act on its own motion. However, the record in this case before it “negated any thought that the trial court was acting on its own motion, but affirmatively showed that it was acting in specific response” to the motion to declare a mistrial. There was no authority for the trial judge to consider such motion for mistrial after a verdict and judgment.

In conclusion, the appellate court found that it was error for the trial court to set aside the verdict of the jury and grant a new trial and in so doing, it followed no recognized or proper course of procedure.

“A mistrial after verdict is unauthorized. No motion for a new trial was ever filed. It is crystal clear from this record that the trial judge did not grant a new trial on his own motion. Under such circumstances, this court must reverse and remand to the circuit court with directions to reinstate the verdict in favor of the plaintiff and against the defendant.” The proper procedure for preserving issues for review was not followed in this case. The defendant waived its motion for a mistrial by failing to seek a ruling on it prior to return of the jury’s verdict and then chose not to file a posttrial motion requesting a new trial.

Burkhamer v. Krumske, 2015 IL App (1st) 131863 (June 12, 2015).

Kreisman Law Offices has been handling automobile accident cases, nursing home abuse cases, truck accident cases and bicycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County, Lake County, DuPage County, Kane County and its surrounding areas, including Buffalo Grove, Deerfield, Glenview, Barrington, South Holland, Blue Island, Grayslake, Burr Ridge, Lemont, Oak brook, Oakbrook Terrace, Westchester, Maywood and Melrose Park, Ill.

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