Introduction

When a civil trial begins, both sides and the court anticipate that the jury will deliberate and return a verdict one way or the other. But juries are composed of human beings with differing perspectives, and sometimes those differences are impossible to reconcile. The result is a hung jury—a situation in which the jurors cannot reach a decision within the required legal standard. For anyone studying the legal system or involved in litigation, understanding what happens after a hung jury in a civil trial is essential. This article explores the legal mechanics, the options available to the parties, and the practical realities of restarting a case after a mistrial.

A hung jury carries significant consequences for both plaintiffs and defendants. It does not resolve the dispute, nor does it vindicate either side. Instead, it leaves the controversy suspended, forcing the parties to decide whether to invest additional time and money in a new trial or to seek alternative resolutions. By the end of this article, you will have a clear picture of how the legal process handles a deadlocked civil jury and what strategic considerations come into play.

What Is a Hung Jury in a Civil Trial?

A hung jury, also known as a deadlocked jury, occurs when the jurors in a civil trial cannot reach a verdict that meets the required threshold. In federal civil trials, the Federal Rules of Civil Procedure require a unanimous verdict unless the parties stipulate otherwise. Many state courts, however, permit verdicts by a majority or super-majority—for example, five out of six jurors in a six-person civil jury, or nine out of twelve in a twelve-person panel. A hung jury, therefore, means the jury has failed to reach even the minimum number of votes needed.

Unlike criminal cases where a hung jury leaves the defendant neither convicted nor acquitted (allowing a retrial without double-jeopardy issues), civil cases do not involve constitutional double-jeopardy protections. Thus, the consequences of a civil hung jury are purely procedural and economic. The case remains unresolved, and the plaintiff’s claim is not barred by any prior judgment.

Key Differences Between Criminal and Civil Hung Juries

  • Verdict Standard: Criminal juries must be unanimous in most jurisdictions; civil juries can often decide by a majority.
  • Double Jeopardy: Criminal retrial after a hung jury is allowed; there is no double jeopardy in civil cases.
  • Burden of Proof: Civil cases require a preponderance of the evidence, which can sometimes make jury persuasion more subtle.
  • Stakes: Civil hung juries typically involve money or injunctive relief, not liberty, so the emotional and procedural aftermath differs.

How a Hung Jury Occurs

The process leading to a hung jury begins after the court instructs the jury on the law and sends them to deliberate. Deliberation can last hours or days, depending on the complexity of the case. In civil trials, the judge often instructs the jury to try to reach a verdict, but they are not required to compromise their honest beliefs. A deadlock arises when, after genuine discussion, no movement is possible.

When the jury reports an inability to reach a decision, the judge may take several steps before declaring a mistrial. One common tool is the Allen charge (also called a dynamite charge or supplemental instruction), which urges the jurors to re-examine their positions and try again to reach a verdict. The Allen charge is used in both criminal and civil trials, but its application in civil cases can vary by jurisdiction. If the jury remains deadlocked after receiving such instructions, the judge will likely declare a mistrial.

The Judicially-Aided Deadlock Breaking

Judges have several options when faced with a deadlocked jury:

  • Urge further deliberation: The judge may ask the jury to return to the deliberation room and continue discussing the evidence.
  • Give supplemental instructions: The judge may clarify the law, the voting options, or the consequences of a hung jury.
  • Ask if additional time would help: Some judges allow the jury to set a self-imposed deadline for reaching a verdict.
  • Poll the jury: The judge may ask each juror privately whether further deliberation would be productive.

If none of these efforts break the deadlock, the judge will formally declare a mistrial and discharge the jury. The moment of discharge is the critical point: from that moment, the case is effectively reset to its pre-trial status, minus the time and resources already spent.

When a jury cannot reach a verdict in a civil trial, the judge declares a mistrial due to a hung jury. A mistrial means that the trial has ended without a final judgment on the merits. Legally, the case is as if the trial never happened. The parties are returned to the positions they held before the trial began, and no factual or legal conclusions bind them.

The mistrial does not trigger res judicata (claim preclusion) or collateral estoppel (issue preclusion). That means the plaintiff can refile the same lawsuit or demand a new trial, and the defendant can raise the same defenses. The only effects are practical: the cost of the first trial is essentially lost, and the parties must start over.

Implications for the Plaintiff

For the plaintiff, a hung jury is often a setback. They have invested time, money, and emotional energy into presenting their case, only to have no decision. After a mistrial, the plaintiff must decide whether to:

  • Request a retrial by filing a motion with the court, typically within a set time (e.g., 30 days).
  • Dismiss the case voluntarily, which may be with or without prejudice depending on the stage and court rules.
  • Explore settlement with the defendant, using the trial results (or lack thereof) as leverage.
  • Appeal? Note: There is no appealable final judgment from a mistrial. The only potential appeal would be if the judge made an error in declaring the mistrial, which is rare.

The plaintiff’s decision hinges on the strength of their evidence, the financial resources available, and the likelihood of achieving a favorable verdict in a second trial.

Implications for the Defendant

The defendant in a civil case is not acquitted by a hung jury. They remain fully exposed to the same liability claims. After a mistrial, the defendant must decide whether to:

  • Defend again in a retrial, which means repeating the entire litigation process.
  • Push for settlement to avoid the expense and uncertainty of another trial.
  • Attempt to have the case dismissed on procedural grounds if possible (e.g., statute of limitations issues or other affirmative defenses that may have been raised earlier).

For defendants, a hung jury can be seen as a partial victory, especially if the case was weak or the plaintiff’s evidence was unconvincing. However, it is not a win; it simply resets the board.

What Happens Next? The Retrial and Alternative Paths

After a mistrial is declared, the court will typically schedule a status conference. At that hearing, the judge will set a new trial date or ask the parties whether they intend to proceed. The timeline for a retrial can vary widely: some courts set dates within months, while complex litigation may take a year or more.

The key procedural step is for the party seeking retrial (usually the plaintiff) to file a motion to reset the case for trial. The court will grant the motion unless there is a legal bar, such as a settlement agreement or a dismissal by the plaintiff.

Factors Influencing the Decision to Retry

Not every hung jury leads to a retrial. Several factors weigh heavily on the decision:

  • Strength of Evidence: If the plaintiff’s case was weak, they may lack confidence in a second outcome. Conversely, if the jury was mostly leaning one way (e.g., 9-3 for the plaintiff but not enough for the required majority), the plaintiff may be encouraged to try again.
  • Cost: Civil trials are expensive. Expert witnesses, depositions, and attorney fees add up. The parties may conclude that the potential recovery does not justify another trial.
  • Time: Litigation can drag on for years. A retrial means another several months or more, which may be unacceptable for parties seeking closure.
  • Emotional Toll: The stress of a trial is not trivial. Some parties, especially individuals, may decide to settle simply to move on.
  • Court Congestion: Busy court dockets can delay a retrial. The waiting period may push parties toward settlement.

Settlement Possibilities After a Hung Jury

A hung jury often creates a window for settlement. Both sides have now seen the evidence presented in an adversarial setting, and they have a sense of the jury’s leanings (through post-trial juror interviews or informal feedback from the judge). This new information can narrow the gap between settlement positions. Many cases that result in a hung jury ultimately settle before a second trial begins.

Mediation is a common tool at this stage. A neutral mediator can help the parties evaluate the case objectively and explore compromise without risking another hung jury or an adverse verdict.

Strategies to Avoid a Hung Jury

Attorneys on both sides have incentives to avoid a hung jury. A deadlock is usually undesirable because it leaves the outcome uncertain and forces the parties back to square one. For plaintiffs, a hung jury is often a loss because they fail to secure a judgment. For defendants, a hung jury may be better than a plaintiff’s verdict, but it is worse than a defense verdict because the case continues.

Here are some strategies attorneys use to reduce the risk of a hung jury in a civil trial:

  • Careful Jury Selection: During voir dire, attorneys can identify and remove potential jurors who seem inflexible or unwilling to compromise. Selecting jurors who can deliberate rationally and follow the law reduces the chance of deadlock.
  • Clear and Compelling Presentations: Confusing evidence or muddled arguments contribute to disagreement among jurors. A well-organized case with a clear theory makes it easier for jurors to reach consensus.
  • Pre-Trial Motions: Motions in limine to exclude prejudicial or irrelevant evidence can prevent distractions that might create division among the jury.
  • Jury Instructions: Asking for specific instructions that guide the jury on how to weigh evidence or apply the law can help them stay on track. In some jurisdictions, attorneys can request instructions that remind jurors of their duty to try to reach a verdict.
  • Use of Special Verdict Forms: A special verdict form asks the jury to answer specific factual questions rather than returning a general verdict. This structured approach can sometimes help jurors find common ground on individual issues even if they disagree on the overall outcome.

Despite these strategies, some cases are genuinely close or involve strongly held juror beliefs that cannot be bridged. In those situations, a hung jury is an inherent risk of the civil justice system.

Understanding the legal framework behind hung juries requires looking at the rules that govern civil trials. For federal cases, the relevant authority is Federal Rule of Civil Procedure 48, which addresses the number of jurors and the verdict requirement. The rule states that unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members. If the jury fails to meet this requirement, the court may declare a mistrial.

Many state courts have their own rules. For example, California allows a three-fourths verdict in civil cases (9 of 12 jurors), while New York requires five-sixths in civil actions (10 of 12). The American Bar Association provides a useful overview of civil jury procedures. Check out the ABA’s public education resources on civil trials for more information.

Another authoritative source is the Cornell Legal Information Institute, which explains the concept of mistrial in detail. You can read their definition at LII's Mistrial explanation. For state-specific rules, the National Center for State Courts collects data on jury verdict requirements. Visit their jury research page for statistics and best practices.

Finally, if you are studying the legal process, the Federal Judicial Center offers a benchbook for judges that includes guidance on handling deadlocked juries. An excerpt can be found on the FJC website. These resources underscore that while hung juries are relatively rare in civil trials (occurring in perhaps 2-5% of cases), their impact on the parties and the judicial system is significant.

Conclusion

A hung jury in a civil trial is a procedural dead end that resets the litigation clock. When jurors cannot reach the required majority or unanimity, the judge declares a mistrial, leaving the case without a verdict. The plaintiff retains the right to pursue a new trial, but must weigh the costs, risks, and benefits of doing so. Defendants, while not automatically cleared, can leverage the hung jury to negotiate a favorable settlement.

Understanding the dynamics of a hung jury helps litigants, students, and educators appreciate the delicate balance between finality and fairness in the justice system. The possibility of a deadlock underscores the importance of strong evidence, effective advocacy, and strategic decision-making. Whether the case ends with a retrial, a settlement, or a dismissal, the hung jury serves as a reminder that the civil justice system, while imperfect, provides multiple avenues for resolving disputes—even when initial efforts fail.