A Keller/Anderle trial team led by Jennifer Keller and Chase Scolnick won a full defense verdict in the retrial of the Grand Hustle, LLC, et al. v. MGA case on May 26, 2023. Grand Hustle and the other plaintiffs are the companies that own the intellectual property rights for the “OMG Girlz,” a band started by rapper Clifford “T.I.” Harris and his wife Tameka “Tiny” Harris. After a three-week trial in federal court, the jury returned after just two hours of deliberation with a victory for Defendant MGA in a trade dress infringement case demanding $100 million in damages.
The case initially went to trial in January of 2023, but after T.I.’s lawyers improperly introduced inadmissible and highly prejudicial evidence to the jury, in spite of a court order not to, the judge declared a mistrial. On retrial, T.I.’s legal team switched out its trial counsel. But changing its lineup was not enough for Sheppard Mullin and T.I. to overcome Keller/Anderle’s skilled representation.
Retrying a case can be an opportunity to course correct if your initial strategy wasn’t working. But even if you had the better of the argument the first time around, retrials are exceptionally challenging to execute effectively. You need experienced trial counsel to navigate the difficulties of retrying a complex case.
Successfully Retrying a Case
Whether due to a mistrial (meaning a trial ended without a verdict, sometimes in the middle of the case), reversal on appeal, or a successful motion for a new trial after verdict, some percentage of cases end up being tried multiple times. Facing a retrial, the best practice is to treat the first trial like a very elaborate dress rehearsal, right?
Wrong.
Even if you had the better of the argument and presentation the first time around, you may squander your advantage by insisting on trying the same case again, instead of focusing on learning what your opponent intends to do differently. If your opponent is capable, you can be certain they will treat the prior trial like a sneak preview of your case and will arm themselves to better rebut your best evidence and arguments. They will also take advantage of the first trial as a learning lesson to figure out what did and did not work well in their presentation and adjust accordingly. You will need to do so, too.
Study the Prior Trial
Even though the retrial shouldn’t look like the last one, you need to study the prior trial carefully. Hopefully, your team was able to interview the jurors immediately after the prior trial or after a mistrial was declared to get their impressions. Even if you didn’t, it’s vital for counsel to read the transcripts, review the exhibits, and dissect the opening statements and closing arguments. Take the time to understand the case from your opponent’s perspective. Where did they succeed and where did they come up short? What did they think was important? What themes did they try to present to the jury? Did they work?
If your opponent prevailed in the prior trial, chances are they will try to hew as closely to their past winning formula as they can, meaning you can dramatically improve your case presentation by studying and preparing to counter theirs. Even if your opponent is savvy enough to know not to try the same case twice, there is still a wealth of information to be gained from learning about their style, the way they structure their presentation, and the credibility of their witnesses. All of that information will serve you well on retrial.
Change Your Presentation
This can be extremely difficult to contemplate, particularly if you were coming off the high of winning a jury trial. But if your case was reversed, even if it was for an error you did not elicit, you cannot assume that doing the exact same thing again will result in an outright win. After all, the alchemy that brought together your victory did not withstand post-trial scrutiny. And you can be sure your opponent will be studying every move you made in search of your weaknesses.
Consider refashioning your themes. The story you tell the jury is critical and the themes are the jury’s way of fitting all the facts and evidence into a narrative that makes sense. Even if you had great trial themes the first time around, the other side has now seen them and will be prepared to counter those themes. Keeping your presentation of the evidence fresh will keep your opponent from anticipating and countering your every move at trial.
If you are trying a case with a team of lawyers, you may want to have attorneys change who they will cross examine in the retrial. The witnesses you examined last time had the opportunity to get used to the attorney’s style and the way they formulate questions. That can make it more difficult to set them up for impeachment or to elicit damaging testimony from them. Having a new attorney cross examine the witnesses can help you keep them from predicting your next move.
Finally, you may have prepared someone you expected to be your star witness, who just was not as compelling at trial as you had hoped. Alternatively, you might have had someone you thought was a relatively minor witness, but you could tell they connected well with the jury. Consider whether you can change up how you use your fact witnesses to tell the story. Is there a witness who does better on the stand who has the knowledge necessary to do more of the heavy lifting? If so, don’t be afraid to reorganize your presentation of witnesses.
Conclusion
The temptation to run the same plays in the same order in your re-trial is strong. It would save money, time, and energy to do so. It is also a potentially disastrous error. If a case is important enough to take to trial, you need to be prepared to learn everything you can from the prior trial and then make the changes you need to seize the strategic advantage. While this is obviously true for the party that succeeded in reversing the prior outcome, it is just as important (but perhaps harder to recognize) for the side that was triumphant at trial.
From cases we have taken after reversal on appeal to handling to those we’ve handled from beginning to trial through retrial, Keller/Anderle’s trial teams have the skill, expertise, and experience to successfully navigate the perils of retrying a matter. Our attorneys have handled hundreds of jury trials with incredible results and know what it takes to prevail on a retrial.