As always, prior to reading this post please review my disclaimer by clicking the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
[ADDITIONAL DISCLAIMER: In the 3+ years since I posted this blog entry, I've received numerous inquiries about filing motions to reconsider in criminal cases. Please note that I am not a criminal attorney. The procedures outlined here apply only to civil cases. As far as I know, there are similar procedures available in criminal cases, but that is outside of the field I practice and outside my expertise to give advice on. If you are considering a motion to reconsider in a criminal case, this is not the blog post for you.]
Introduction
Most people think that if you lose a court case at trial your only options are to accept defeat or appeal. Many people don't recognize, or far too readily overlook, a third option - a motion to reconsider. A motion to reconsider asks the judge who ruled against you to reconsider his decision, and will present to that judge some reasons why the judge should think again. While this might seem foolish (is the judge really going to reverse himself?), motions to reconsider, in my experience at least, actually do have a success rate that is only slightly lower than the success rate of appeals - all for a fraction of the price.
With that in mind, today's blog post will cover some of the basics of doing a motion to reconsider. It is important to note that for today's post I am speaking of motions to reconsider only in the Circuit Court. While available in the General District and J&DR Courts, they are much less widely used or useful there.
Why File a Motion to Reconsider
So, to start off with, you might wonder what the advantages of a motion to reconsider are. For someone who does not want to just accept the court's ruling, the biggest advantage is that a motion to reconsider is much less expensive than an appeal. While an appeal is a long, expensive process, a motion to reconsider is simply a single motion. In my experience, a motion to reconsider typically costs about a tenth as much as an appeal (with some appeals being many magnitudes more expensive than that).
More importantly, however, a motion to reconsider does not take away your right to file an appeal, so if the motion doesn't work out you have not lost very much, and in fact may have strengthened your appeal. This is because there is a rule in appellate litigation that you cannot appeal an issue unless your objection to the court's ruling was brought to the court's attention and ruled on by the court. If you screw up and don't do this, but raise the issue in a motion to reconsider, the appellate courts have held that you have met your test. In other words, if you fail to preserve an issue for appeal, you will likely reverse that failure if you include the issue in a motion to reconsider, actually saving your ability to appeal.
To that end, a motion to reconsider is perfect for the party who does not want to simply accept the court's ruling, but either does not want the cost of an appeal or wants to strengthen a possible appeal.
How a Motion to Reconsider Works
After the court rules, and the order is actually entered, your time to file a motion begins. Your motion will need to discuss the issues you have with the ruling and all bases in fact and law for why the ruling was wrong. It is important to note, however, that when presenting facts you can only rely on facts and documents that were evidence in trial. A motion to reconsider is not the time to raise new evidence, especially if you could have gotten that evidence during trial. That being said, if there is a new ruling from an appellate court that comes after your trial court's ruling which directly relates to your case, that new ruling can be included in your motion to reconsider.
Once your motion is done you need to submit it to the judge. If you are in a one-judge courthouse, that is easy. If not, you need to go to judges' chambers and ask the clerk there to submit it to the judge who actually entered the order you are seeking to have reconsidered. In most counties, you do not request a hearing - a hearing will only be scheduled if the judge wants one. Also, in most counties, if the other party files a motion to reconsider, you do not file a response unless the judge requests one. These rules vary from county to county, however, so you should check what the rules are for your county (or better yet, hire a local attorney).
The judge will then review the motion and grant or deny it. If granted, the judge may simply alter the order, the judge may order a whole new trial, or the judge could do something in between, it's really up to the judge.
Deadlines
So, how long do you have to file a motion to reconsider? There actually is no set deadline, you can file such a motion as long as the court continues to have jurisdiction over the case. So, how long is that? Well, it is as long as the case is pending, plus 21 days. So, if the order you want reconsidered is not the final order of the case, and the case is still pending, you could wait several months if you wanted to (although it is very unlikely you will be taken seriously if you do). If, however, it is a final order, Virginia Supreme Court Rule 1:1 takes jurisdiction away from the trial court after 21 days.
So, what does that mean? It means not only must your motion to reconsider be filed within 21 days after entry of the final order, it must be ruled on within those 21 days. If your motion is filed in 5 days but the judge doesn't rule on it before the 21st day, that's it, the motion cannot be considered further. This is actually not a denial of the motion (so if you filed your motion to fix a failure to preserve an issue for appeal, you have lost that ability, since your motion can no longer be ruled on), the motion just dies.
Now, you might be thinking "but it takes time to prepare the motion, and the motion may be complex, how does all that get done within 21 days?" Well, a judge has a power to "suspend" a final order while reviewing your motion. To do that, however, you have to request that the judge do so, and you usually have to file a suspending order along with your motion. The judge has the right to refuse to suspend the order, but they rarely do. The result is that I usually try to file both my motions and suspending orders within about 17 or 18 days of entry of the final order.
If the order is suspended, the terms of the order are generally still in force, it is simply being suspended from being "final." If the judge denies your motion to reconsider, the suspension is lifted. However, when an order has been suspended, the 30 day deadline for filing an appeal starts from when the suspension ends, rather than when the order is entered, so you can wait until the motion is ruled on to file your appeal.
Success Rates
I don't have a scientific study of success rates for you, but in my experience, motions to reconsider are only a little bit less successful than appeals (remember, however, the vast majority of appeals are unsuccessful). The most successful motions tend to be ones where the judge clearly misread evidence, or there was a dispositive appellate court case that no one realized existed before trial. Beyond that, however, your chances of success tend to dwindle. Nonetheless, I have never seen a judge who does not take a motion to reconsider seriously. For one thing, most judges are honestly concerned about getting their rulings right, and will correct themselves if convinced they got it wrong. If nothing else, however, judges hate being overturned on appeal, and they know that a motion to reconsider means an appeal is more likely than in your typical case. As a result, a judge will typically review the motion closely to try to prevent there from being anything for which they could be overturned on appeal. As a result, you should not laugh off the possibility of a successful motion to reconsider just because it will be considered by the same judge who ruled against you to begin with.
Conclusion
A motion to reconsider is an important option for a party that has lost at trial which allows the party to avoid having to simply accept the ruling, but also provides the party an opportunity to avoid jumping straight into an appeal. If you have had a ruling go against you and would like to file a motion to reconsider, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
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