A Few Thoughts on Motions for Reconsideration

This week, I became involved in an appeal much later than I typically do. The Court of Appeals had already made its decision, and I drafted a motion for reconsideration for my new co-counsel. Typically, when I draft a motion for reconsiderayion, I am getting my ducks in a row for a petition for certiorari or I am trying to throw a hail mary pass for a devestated client. My typical motion for new reconsideration is a couple of pages in length and written in the style of a trial motion, with numbered paragraphs. Never before have I been asked to enter a case at the MFR stage. Since this was my sole mission, I wanted to add even more value to the process. And so I went to the first place we should all go if we want to up our game in a particular court — the rules of that court as they relate to the subject at hand. It turns out that the MFR stage offers us quite a few options.

In the Georgia Court of Appeals, you go to Rule 37 to learn all about how to prepare an MFR. In short, there are opportunities and ways to get in trouble. Let’s start with the ways you can get in trouble

Ways to get in trouble

• You must file your MFR within 10 days of the decision by 4:30 p.m. Ordinarily, you can e-file things with the COA until 11:59 and you get credit for the day of filing, even if the clerk doesn’t docket your brief until they open the next day. If you file your MFR at 4:31 p.m. on day 10, the Clerk of Court will docket your MFR as if filed on day 11. And if you file your MFR on day 11, bad things may happen to it.
• The clerk of court can shorten your 10 days. I’ve never seen it happen. But it potentially could at the end of a term.

Opportunities

• Let’s talk about the standard for granting a MFR. According to Rule 37(e), “a reconsideration shall be granted on motion only when it appears that the Court overlooked a material fact in the record, a statute, or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneoulsy construed or misapplied a provision of law or controlling authority.” I read 37(e) as a fairly liberal standard. With that said, a MFR should be narrow, short, and targeted. You are telling three COA judges that they made a bad mistake. So, tread lightly.
• Blame yourself. Typically, when I write an MFR I blame myself for the adverse decision in the way I briefed the matter — essentially “I was likely unclear in the way I wrote. So, this is all my fault. Better advocacy would have taken you to the right result.”
• You have some space to write. Rule 37(a) refers us over to Rule 24, which is the section that deals with the physical preparation of briefs. So, your MFR can literally be a brief. The only limitation imposed is that your MFR is limited to 4,200 words, or about 7–8 pages of text using a 14-point font and double spacing.
• If you draft an MFR in the form of a brief at 4,200 words and cover the topic, you will probably file the best brief you have ever written. You may even wish that your original brief had looked like this brief. Had the brief been this clear and succinct, your opponent might be writing an MFR right now.

I make no comment about whether the strategy here is a winning one. You are likely still throwing a hail mary pass in any event. I offer these comments as a lawyer who entered the game just to throw the pass. The ball is in the air as I write these words.