When a civil trial ends with a hung jury, the judge declares a mistrial, the jurors are dismissed, and the lawsuit resets to roughly where it stood before trial. No one wins, no one loses, and the parties have to decide whether to retry the case, negotiate a settlement, drop it, or in narrow circumstances ask the judge to end it on a post-trial motion. In federal court, civil verdicts must be unanimous unless both sides agreed in advance to accept a non-unanimous result, so a single holdout can produce this outcome.1Legal Information Institute. Federal Rules of Civil Procedure Rule 48
When a Civil Jury Is Considered Deadlocked
A jury is “hung” when, after sustained deliberation, it cannot produce the verdict the case requires under the applicable voting rule. Federal Rule 48 sets the default at unanimity from a panel of at least six, though the parties can stipulate to a lower threshold before trial begins.1Legal Information Institute. Federal Rules of Civil Procedure Rule 48 State courts vary. Some require unanimity in civil trials; others accept a supermajority such as five of six or ten of twelve.
The voting rule determines how close the jury needs to get before deadlock sets in. A jurisdiction that requires unanimity can be hung by one dissenter. One that accepts a three-quarters majority needs a larger bloc of holdouts. When the jury sends a note saying it cannot agree, the judge does not immediately end the trial. The court first asks whether more time or additional guidance could break the impasse.
The Allen Charge Before a Mistrial
Many federal judges respond to the first signs of deadlock with an Allen charge, a supplemental instruction urging jurors to keep trying. The name comes from the Supreme Court’s 1896 approval of the practice in Allen v. United States.2Ninth Circuit District and Bankruptcy Courts. 7.7 Deadlocked Jury In its mildest form, the instruction reminds jurors of the importance of reaching a verdict and asks each person to reexamine their position honestly, without surrendering a sincere belief just to end deliberations.3Legal Information Institute. Allen Charge
Not every court allows it. Many states have banned the Allen charge out of concern that it pressures minority-position jurors into caving rather than genuinely reconsidering.3Legal Information Institute. Allen Charge Federal courts still permit it, though the Ninth Circuit and others recommend caution and have developed softer versions.2Ninth Circuit District and Bankruptcy Courts. 7.7 Deadlocked Jury If the charge gets deliberations moving, the trial continues. If not, the judge moves toward a mistrial.
How the Mistrial Gets Declared
The judge has broad discretion over when to call it. There is no fixed number of hours or days a jury must deliberate first. Courts typically weigh the complexity of the case, how long the trial lasted, how long the jury has been deliberating in proportion to that length, and whether the jury’s notes suggest genuine engagement or a firm impasse.
Once the judge concludes further deliberation would be futile, the mistrial is entered on the record, the jurors are dismissed, and the case is effectively paused. Nothing from the first trial counts as a verdict. Rule 48 also addresses a related situation: if a poll of jurors after an announced verdict reveals a lack of unanimity, the court can direct further deliberation or order a new trial outright.1Legal Information Institute. Federal Rules of Civil Procedure Rule 48
Options After the Mistrial
A mistrial from a hung jury does not end the lawsuit. Unlike criminal cases, where the Double Jeopardy Clause restricts repeated prosecutions, ordinary civil litigation involves no double jeopardy protection at all.4Legal Information Institute. Double Jeopardy The plaintiff is free to try again. In practice, the parties pick from three paths.
Retrying the Case
The most straightforward option is scheduling a retrial with a new jury. Both sides present their evidence again, now with the advantage of having watched the first trial unfold. Witnesses whose testimony fell flat can be replaced or better prepared. Legal theories that confused the first jury can be sharpened. Getting back on the court’s calendar often takes months.
Settling the Case
A hung jury gives both sides something they rarely have before trial: a realistic preview of how their case actually plays in front of ordinary people. A plaintiff who saw jurors openly skeptical of damages may temper the demand. A defendant who watched the jury warm to the plaintiff’s story may decide a negotiated payment beats the risk of a full verdict next time. Some judges refer the case for another round of settlement discussions, or push the parties toward mediation, before a retrial is scheduled.
Dropping the Case
A plaintiff who no longer wants to continue can file for a voluntary dismissal under Rule 41. Before the defendant has filed an answer or a summary judgment motion, the plaintiff can dismiss without the court’s permission. After that point, a dismissal requires a court order. By default, a voluntary dismissal is without prejudice, meaning the plaintiff can refile the same claim later. But if the plaintiff has already dismissed the same claim once before in any court, a second dismissal automatically operates as a judgment on the merits.5Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions
Ending the Case Without a Retrial Under Rule 50
There is a less obvious path that can finish the case entirely. If one side moved for judgment as a matter of law during the trial and the judge reserved the question for the jury, a hung jury opens a window to revisit that motion. The party has 28 days after the jury is discharged to file a renewed motion arguing that no reasonable jury could have found against them on the evidence presented.6Legal Information Institute. Federal Rules of Civil Procedure Rule 50 – Judgment as a Matter of Law in a Jury Trial
The bar is high. The judge must conclude the evidence so overwhelmingly favored one side that a verdict the other way would be unreasonable. When it works, it ends the case without a second trial. The renewed motion can also include an alternative request for a new trial under Rule 59.6Legal Information Institute. Federal Rules of Civil Procedure Rule 50 – Judgment as a Matter of Law in a Jury Trial One catch matters enormously: the Rule 50(a) motion made during trial is a prerequisite. A party that did not make that motion before the case went to the jury cannot make the renewed one afterward.
What a Retrial Costs
Every dollar spent on the first trial is gone. Witness preparation, exhibit creation, attorney time, court reporter fees, deposition costs, expert witness charges that can run into the thousands per day of testimony: none of it produced a result, and a retrial means incurring most of those costs again.
The hit extends beyond out-of-pocket expenses. Both sides lose the time their employees or principals spent away from work during trial. Witnesses who cooperated the first time may be less willing or available for a second round. Expert witnesses in particular tend to charge for the full scope of preparation and testimony again, since they must review updated materials and prepare for potentially different cross-examination.
This is the strongest argument for settlement after a hung jury. A plaintiff facing significant additional trial costs and a defendant looking at the same figure often find that a negotiated resolution, even one neither side loves, costs less than rolling the dice a second time. The first trial effectively becomes an expensive form of case evaluation.
Strategic Considerations Before Agreeing to Retry
Choosing to retry is not just a question of money. The first trial is the closest thing to a dress rehearsal either side will get. After the jury is dismissed, attorneys often try to speak with former jurors. Nothing prevents this in most courts, and those conversations can reveal exactly where the case broke down. A juror who says they believed the plaintiff was hurt but could not figure out how to calculate damages tells the plaintiff’s lawyer something very different from a juror who did not find the plaintiff credible at all.
Time between trials cuts both ways. Witnesses’ memories fade. Documents that were fresh during the first trial feel stale months later. New evidence can sometimes surface between trials, and the rules of civil procedure allow parties to supplement their disclosures. A retrial is never just a carbon copy of the first attempt.