Tuesday, December 9, 2014

Making the Most of Motions for Reconsideration

Motions for reconsideration often aren’t successful. Generally, once the judge has issued a decision (especially a written one), you’re unlikely to convince the judge that decision was wrong. But motions for reconsideration sometimes work. Here are my tips for making the most of a motion for reconsideration.

A motion for reconsideration isn’t the place to make new arguments—the judge almost certainly won’t consider them. The most effective motions for reconsideration are those that target the judge’s (1) misunderstanding of the facts; (2) misapplication of the law; or (3) failure to address certain issues.

The Facts. If the judge’s ruling is based on a misunderstanding of the facts, use the motion to explain the true facts and support that explanation with affidavits, deposition testimony, documents etc. Attach copies of the relevant transcripts or documents, if permissible, or include the exact testimony—rather than characterizations—in the motion itself. (See my prior post here on the effectiveness of this technique)   

Similarly, if the judge has granted a motion for summary judgment when a factual dispute exists, show the judge the evidence of the dispute—the conflicting deposition testimony or documents, for example. Attach them if you can. Otherwise, refer to them in a way that will enable to the judge to easily locate them in the file or record.   

The Law. If you believe the judge misapplied the law, tell the judge how by offering language from the cases, statutes, etc. themselves and the judge’s order to show the disconnect. Be specific. For example:

In its order, the Court expressed sympathy for Plaintiff but held it had no choice but to dismiss the complaint, citing Section 54.3(b) of the statute. But Section 54.3(b) uses the term “may,” not “must.” Thus, the Court incorrectly held it was required to dismiss the complaint when, in actuality, it was not.

Unaddressed Issues. If the judge failed to address certain arguments, show the court that you made those arguments by referring to any prior briefs or argument in the case. For example, assume a court granted a motion for summary judgment on the ground that the plaintiff could not state a claim for breach of contract but failed to address arguments that the plaintiff could recover under another theory (promissory estoppel or unjust enrichment). Your motion for reconsideration might include something like this:

The court found Plaintiff cannot recover for breach of contract and dismissed the complaint. But the Court failed to address Plaintiff’s other theories of recovery: promissory estoppel and unjust enrichment. Plaintiff’s complaint includes counts for promissory estoppel (Count 2) and unjust enrichment (Count 3). Further, in response to Defendant’s motion, Plaintiff also argued that it could proceed under those theories even if its breach of contract claim were dismissed. See Plaintiff’s Response to Defendant’s Motion to Dismiss pp. 6-9. In dismissing the complaint, the court failed to consider or address Plaintiff’s alternative theories of recovery.    

No matter the basis of your request, keep it as short as possible while saying what you need to say. As a Twitter friend reminded me recently, never forget BITSOW: Brevity is the soul of wit. (Shakespeare—Hamlet). You won’t score any points with the judge by filing a lengthy, tedious request for reconsideration. Make the points you need to make, then stop!   

Finally, never attack the judge. You shouldn’t feel timid is saying the judge “erred” or “misapplied the law” or “failed to address” an issue. Judges are humans—they make mistakes and most want to correct those mistakes. But calling the judge “uninformed” or “uneducated”  won’t win you any points.

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