Motions to Reconsider

You’ve probably heard of motions to reconsider. If you haven’t, think of a motion to reconsider as the court version of what happens when you lose an argument with your spouse. “But honey, I don’t think you really understand.” Motions to reconsider have as much chance in court as requests to reconsider have in your marriage. It can happen, but seldom does it come out that way. Nevertheless, motions to reconsider are valuable because they give the court the opportunity to correct an error. This opportunity is deemed to be important if and when an appeal is taken.

Incidentally – where do you appeal if your spouse is wrong? I hope someone has an answer to that question. There are two ways of appealing to the court when filing a motion to reconsider. In the first instance, the motion suggests that the court misapprehended the facts. That’s a polite way of saying “look, you didn’t listen – if you had, you wouldn’t have found what you found!”

When filing such a motion, you must refrain from using such words as “idiot” as courts frown on that. Instead, you must show with specificity – using the record – how the court got it wrong. Courts do get the facts wrong from time to time. If a finding of fact is wrong and the fact in question is a material fact, it may change the outcome of the proceeding. In these cases, it’s appropriate to file a motion to reconsider.

The most effective motions to reconsider are generally those motions that suggest that the court is wrong on the law. Occasionally – but not often – this is actually the case. It may be that the court is unaware of certain statute , hadn’t read a recent decision, or simply misapplied the law. In some instances, the source of law is scarce and the argument in the motion is over predicting what the Supreme Court will say the law is in a given area. In those instances, the goal is to win the heart and mind of the trial court. Motions to reconsider are won when the motion is clear and concise.

Generally, the issue being raised must be precise and easily understood. When you file a “good one” you can almost hear the sound of the judge slapping his forehead with the palm of his hand. “What was I thinking when I previously ruled?” Many times, clients ask: “Why file a motion for reconsideration because the judge will never reverse himself/herself?” I can always understand that sentiment; however, I would say that motions to reconsider are acted on favorably about 5% of the time.

Those aren’t bad odds given the nature of the motion. Reconsideration requests are likely less than that in arguments with your spouse. The next time you lose an argument with your spouse, move for reconsideration.

I’m certain he/she will give your request thoughtful consideration. And – good luck!