For The Defense, November 2012 - DRI Today

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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, ■■ 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
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