For The Defense, November 2012 - DRI Today

Writers’ Corner
Let’s Try This Again
Motions for Reconsideration
By Michael F. Smith
An e-mail or envelope finally arrives from a court, and
the news isn’t good. So after you digest the ruling and
analyze it with your client, what’s next
In the no-man’s-land between running up the white
flag and full-blown appellate battle lies the motion for
reconsideration or rehearing. It’s a long shot in the best
of situations, but under the right circumstances, it can
pay off.
As with any court filing, the first things to know are
the basics. Check both the primary and local court rules
for technical requirements such as page limits, timing,
and title. For instance, some court rules distinguish
between “reconsideration” and “rehearing.” Beyond that,
a few writing tools can help smooth the grade a bit on the
decidedly uphill climb.
First, know what you’re up against, and argue to it.
Does your court grant reconsideration only for “manifest
error” or some other heightened standard How does
it define that Some set the bar high, reconsidering only
in “highly unusual circumstances,” that is, for “newly
discovered evidence… [or] clear error, or if there is an
intervening change in the controlling law.” Carroll v.
Nakatani, 342 F.3d 934, 944 (9th Cir. 2003). Others have
wide discretion, and can offer a failed motion a “second
chance” even though nothing has changed. See In re
Moukalled Estate, 714 N.W.2d 400, 405 (Mich. Ct. App.
2006). Knowing the standard and how it’s practically
applied will help you frame and argue the issues to raise.
Second, pick your battles. So the court’s opinion was,
as you told the client, so riddled with errors that a firstyear
law student wouldn’t have written it. Set that aside;
you’re not likely to achieve much raising a laundry list of
mistakes. If you identify several fundamental mistakes
that you can discuss in readable fashion within the page
limit, nothing says that you can’t. But human nature
being as it is, you’re more likely to convince a court that
it made one or two palpable errors rather than seven.
Third, use tone to convey what the appellate court will
hear. As the Texas Court of Appeals noted, one function
of a reconsideration motion is to provide “notice that a
party is dissatisfied with a final order and that the party
will seek review if the ruling is not changed.” Dolenz v.
Texas State Bd. of Medical Examiners, 899 S.W.2d 809,
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Michael F. Smith is principal of The Smith Appellate Law Firm in Washington,
D.C., and concentrates his practice on appellate litigation and trial- level tactical and
strategic consulting. He is a member of the DRI Appellate Advocacy Committee.
811 (Tex. Ct. App., 1995). Candidly and directly tell a
court what it did wrong, and how it can make it right,
now.
Fourth, educate. Maybe a court misunderstood the
facts, or the law, or their interplay—perhaps even helped
along by your own earlier motion papers. Use reconsideration
as a chance to explain things more clearly, and
address points that a court inadequately grasped. As
Bill Gates has said, “Your most unhappy customers are
your greatest source of learning.” The adverse opinion
was your unhappy customer. Let your reconsideration
motion serve the same role for a court.
Fifth, buttress the record for appeal. Many reconsideration
rules limit new facts or legal argument to those that
couldn’t have been brought to a court’s attention earlier
with reasonable diligence. See, e.g., D. Ariz. L.R. Civ.
7.2(g)(1). That principle can be easier to state than apply,
though, and if the record doesn’t contain some evidence
that could be relevant on appeal, a motion for reconsideration
can offer a way to admit it. Courts often review
denials of reconsideration under a high standard, but
having material, argument, or both in the lower court
record at the eleventh hour beats having to convince an
appellate court why it should address an unpreserved
issue, or newly raised evidence.
Sixth, don’t get cute or overthink the consequences
associated with filing a motion for reconsideration. One
favorite reason for not seeking reconsideration is, “I don’t
want to give the trial judge a chance to fix his (or her)
mistake.” But an appeal is likely to succeed or fail due
to its substantive merit, and if your main issue is a “gotcha”
or debater’s point, an appellate court may well take
a pass under the guise of harmless error. You’d speak up
if a surgeon left something behind; there’s no reason to
treat an errant trial judge any differently.
Seven, know when to move on. Or as Mich. Ct. Rule
7.313(F) instructs, “[t]he clerk shall refuse to accept for
filing any motion for reconsideration of an order denying
a motion for reconsideration.”
Going back to a court that has just rejected your best
effort isn’t high on any litigator’s list of favorite activities.
But judges aren’t in the business of purposely making
erroneous decisions, and given the time, the expense,
and the effort involved in mounting a full-scale appeal, a
reconsideration motion in the right situation can be the
stitch in time that saves nine.
76 ■ For The Defense ■ November 2012