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