Motions for Rehearing or Reconsideration En Banc: Why Bother?

Originally published by Maitreya Tomlinson.

While appearing rhetorical, there is a very good reason to bother. My firm recently turned an appellant’s partially favorable result into full relief on rehearing. In doing so, we utilized the Texas appellate procedure rules, which allow parties to request that intermediate appellate courts reexamine their decisions: either by filing a motion for rehearing or a motion for reconsideration en banc.

Although not unicorn-like in frequency, Texas intermediate courts of appeals infrequently grant these motions. The statistics vary depending on the year and the specific court of appeals. However, research indicates that the success rate can be less than 20% and in many instances under 10%. Less than 10% is a daunting statistic, which would deter anyone who is accustomed to playing the odds.

Understanding the reasons why that number is so low could boost your chances for success. Courts have different reasons for denying rehearing or reconsideration motions. Common sense suggests that courts deny these motions because they have already thoroughly considered and recently decided the issues. The court is likely satisfied with its decision. Judicial feedback suggests that some parties use these motions as a way to vent their frustration with the court. Here’s where the old adage concerning honey and vinegar comes into play. Both common sense and judicial feedback also suggest that parties use these motions to re-urge the same arguments to the court, hoping repetition will eventually force the court to relent.

For these reasons, moving parties are encouraged to take certain steps to improve their chances. The first is that a moving party should avoid rehashing the same arguments. Instead, highlighting problems with the court’s opinion and any recent, favorable authority would help. Doing so in a respectful manner, however, will increase the moving party’s chances. Also, if it appears the court misunderstood the moving party’s meritorious arguments, taking the opportunity to present them in a way that is more understandable to the court will get them even further.

The takeaway here is to advise your clients that the courts of appeals infrequently grant these motions. But, if you have a compelling reason for the court to make favorable changes to its opinion/judgment, utilize this method, in a respectful way, to help the court reach the right result.

Image courtesy of Flickr by Kris.

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