Cisco's legal authority for a new trial is weak (See June 3&4 posts which are comprehensive)
One thing is certain, it is not necessary to request a mistrial in the 5th Circuit or be prohibited at law from seeking a new trial.
At the hearing the key question is why didn't VHC request a mistrial? The answer is simple. VHC is heavily reliant on Judge Davis. VHC would defer to his discretion on the mistrial matter. In other words, since the judge did not request a mistrial, VHC's attorneys were not going to either. A request for a mistrial would be kind of a slap at judge Davis. It would be an insinuation that he lost control and the request would be asking him to do the whole trial over again. VHC attorneys are careful about pushing this judge. The VHC's attorneys didn't want to step on his toes and were quite willing to let the trial proceed as long as Judge David had no intention of stopping the trial.
Here is the problem: JD asks why VHC did not request a mistrial. The answer is because they trusted in the judge's discretion about this issue. However, VHC cannot make this response tto JD's question. That is, VHC cannot answer this question honestly without looking rather odd.
The judge should be able to figure out that VHC was relying on him to let the trial proceed and would not trip up the whole process and possiblly irritate him. Once he realizes this ,I think it would be easy for him to order a new trial.
The VHC's attorneys should have drilled home the fact that no matter the issue of a new trial or not, the fact remains that JD persistently misspoke and misdirected during the trial which led to an improper result, and a new trial would be warranted at the DISCRETION of the judge and in the interests of justice.(see case law)
I think Jeff on IV noticed that the Judge was most interested in JD's responses. On the bright side, JD's assertion that a new trial is warranted is clearly erroneous (see case law). The judge will address this in his opinion.