LawProse Lesson #240: Advice on motions for rehearing.

LawProse Lesson #240: Advice on motions for rehearing.

What’s the biggest flaw in a motion for rehearing? The answer is the failure to understand that judges must be allowed to come around to your position without losing face. Although the strategy makes no sense, it is common for advocates to demand that they “must” be reheard because the judge’s decision is “arbitrary, capricious, contrary to law, and unsupported by the evidence.” Having just reviewed a motion for rehearing that contains 12 assertions of such judicial blunders, I can only imagine how irksome the judges found it. No matter what, keep your tone civil and respectful. Suggest that the court made an honest mistake by, for example, inadvertently overlooking an exhibit or misunderstanding a key point. Be a humble supplicant, not an arrogant one who treats “with all due respect” as the introduction to an insult.
The great John Minor Wisdom was once asked by a law clerk what the five-foot pile of briefs was in the corner of his chambers in New Orleans. He answered “Oh, those are motions for rehearing. We accord them all the respect they are due.”
Further reading:
Antonin Scalia & Bryan A. Garner, Making Your Case 201-05 (2008).

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