The Mistrial: The Misunderstood Motion

One topic that is often at the center of law school lectures but is not an issue that garners a great deal of publicity is the mistrial. The mistrial is one of the most difficult motions that any litigator will ever face should they decide to go that route. The key to a successful mistrial motion is the concept of prejudice but to display that a party has been disadvantaged is easier said than done. Case law, litigators, and the general public are often left with a great deal of confusion when addressing the issue. Our goal today will be to provide insight on the topic along with commentary from leaders in the field. Let’s begin by discussing what the black letter law states and then delve into the shade of gray which is where the issue lives.
We start this discussion by reviewing case law on the topic. In the case of Wolfe v. Peery, we find that: “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review trial court ruling denying a mistrial.” While the case law says one thing, the application of the motion is an entirely different process. Scott Grabel of Grabel and Associates is the leader in criminal defense in the state of Michigan. Grabel and other leaders in the field provide commentary on the issue.

Grabel stated, “Many attorneys like the idea of bringing a motion for a mistrial but do not understand intricate their motion must be. In fact, if you are banking on winning the motion you are putting your client in a precarious situation. Case law indicates that a mistrial is only granted if the court is apprised of prejudice that it deems to be incurable. In the simplest of terms, the court is reluctant to grant such a motion. Our motion writers have found a great deal of success, but that is because they look at the issue globally which is an unusual but effective process.”

Ravi Gurumurthy, the founder of Michigan Legal North and an Associate Attorney with Grabel and Associates, echoed the sentiments of Grabel. “The concept of abuse of discretion is one that is difficult to grasp. We are asking a judge to basically call out another member of their fraternity. The attorney must understand when they approach this mountain they cannot find success with a canned motion, creativity is essential.”

Matthew McManus of Ann Arbor Legal added, “When you write these motions you are attempting to clean up the mess of another. Most of the motions that we have been writing has occurred because of bad lawyering of another attorney. We also have to keep in mind when writing the motion; it is dangerous to do too much research and confuse the court. For every Scott Grabel or Ravi Gurumurthy that are at the top of their game, there are thousands of lawyers that fall asleep at the wheel. The motion is not an easy one to make, and if you simply follow case law without further support, you will not be successful.”

At the end of the day, we find the term prejudice at the forefront of the motion for a mistrial and to persuade a court that there was truly prejudice needs expertise in motion practice. It is not simply a matter of losing a trial; it is a statement of irreparable harm. With that said, only the best of the best will be capable of overcoming such a hurdle.

William Amadeo is a partner at the law firm of Ann Arbor Legal in Ann Arbor, Michigan, and an Associate Attorney for Grabel and Associates. In addition to his legal duties, he is a regular contributor to “The Criminal Law Blog” and “The Chronicle News” website and newspaper. Amadeo can be reached at

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