LawProse Lesson #267: Law of the case.

The phrase law of the case is often misunderstood. Properly, it denotes a common-law doctrine that applies most often to cases that have been appealed. When an appellate court makes a final decision in a case, that decision is binding in a later appeal after remand. The decision becomes the law of that case. For example, a litigant may appeal two of a trial court’s final decisions: to exclude a piece of evidence and to give the jury an improper instruction. If the appellate court finds that the evidence was properly excluded but remands the case to the trial court on the improper-instruction issue, the evidentiary issue is final and becomes the law of the case. If the litigant appeals again, the law-of-the-case doctrine bars a change of the previous decision that the evidence was properly excluded. The doctrine sometimes applies at the trial-court level. If a different judge takes over while a trial is in progress, that judge is bound by the predecessor’s rulings. And if a litigant chooses not to appeal a trial court’s ruling, then that ruling becomes the law of the case as to the parties. But many lawyers misuse law of the case to refer to all trial-court rulings, as if anything the trial court decides becomes binding throughout the trial-court proceedings. In truth, though, a trial judge has the discretion to reconsider his or her own rulings made before reaching a final decision. When a trial court’s ruling hasn’t been objected to and is used or relied on during the trial, then it becomes the law of the trial but not the law of the case. Because the law-of-the-case doctrine closely parallels preclusion rules such as collateral estoppel and res judicata, some lawyers insist that under the doctrine, any ruling by any court in the same case becomes binding. That’s wrong. Trial-court rulings are generally not binding on appellate courts, which have the power to reverse, vacate, or modify erroneous lower-court rulings when issues are properly presented to them. Further reading: Bryan A. Garner et al., The Law of Judicial Precedent 231–32, 328, 441–89, 797 (2016). Black’s Law Dictionary 1020 (10th ed. 2014).