By Justice Evelyn Keyes, First Court of Appeals and Angela Spoede
All the attorneys who appear before appellate courts present their cases with the hope that their arguments will connect with the judges and cause them to rule in their clients’ favor. Unhappily, given our adversarial legal system, roughly half the litigants who appear before the court will not achieve their goal. Sometimes, the judges manage to disappoint both sides at once. When that happens, parties may feel that the court has not truly heard their arguments, and they may ask themselves whether they should move for rehearing. Generally: yes. But not always.
Parties have a right to file a motion for rehearing. See TEX. R. APP. P. 49.1. Sometimes, however, the time and expense involved in filing a motion is more justified than at other times. For example, if a dissenting or concurring opinion has been filed by a member of the panel, a party filing a motion for rehearing knows that he has fewer justices to persuade—and maybe he can find support for the dissenting judge’s view in the law that will cause one or both of the other judges to change his mind. Or if taking the hint from the dissenting judge does not lead to victory in the intermediate appellate court, it may help hone the arguments for a petition for review.
Even without a dissent in your favor, a motion for rehearing can be a preview of the argument to come in a petition for review. And it may alert the appellate court that it is in the interest of the law and the court itself to correct a clear error of fact or law rather than having a higher court do it for them.
For example, the court’s opinion may misstate a material fact in the record. Or the court may have made an error of law. Or the opinion may fail to adequately address an issue necessary to the resolution of the dispute. Or some error in the judgment may create a discrepancy between that document and the opinion. Other times, counsel may have specialized knowledge about the case or the area of the law that the court missed or misunderstood. It does happen—especially in very complex cases or in specialized areas of law that do not often come before the appellate courts. In that case, a motion for rehearing may help the court correct an error important to maintaining the integrity of the law or to ensuring justice in the case.
It is important to note, however, that under any circumstances the odds of the court’s granting a motion for rehearing are low. But a knowledgeable practitioner can increase the odds of getting the desired result by following a few key guidelines.
The best motions for rehearing use a respectful tone. Judges know that they can make mistakes, and many will even thank you for your efforts in pointing them out if you do it professionally. But disrespectful and angry motions are less helpful to the court and may not get the type of attention you think they deserve. Effective motions for rehearing also stick to the essential facts and law and do not waste time on peripheral issues or on pointing out every possible mistake the lawyer thinks the court made. Especially if he thinks the court made error after error after error. Sometimes the litigant doth protest too much.
The language of Rule of Appellate Procedure 49.1 is vague (“The motion must clearly state the point relied on for the rehearing.”). But some arguments or points in support of rehearing are much more helpful than others. Focusing on flaws in the court’s reasoning, interpretation of material facts, or key points of law puts the important points squarely before the panel, with no room for distraction. To the extent possible, build on the arguments of a dissenting judge or the reasoning already used in the opinion. If applicable, point out the importance of authorities that were not cited in the panel opinion, or provide citations and analysis for cases that may have come out between when you originally briefed the case and when the opinion was issued.
Keep in mind that a motion for rehearing is not an appropriate vehicle to rehash arguments from your original brief. If they did not persuade the court the first time, you can be fairly certain they will not persuade the second time, without more. Raising brand new issues is likewise inappropriate. Courts generally will not consider issues raised for the first time in a motion for rehearing. Rather, present your appellate issues and supporting arguments in a new light that will give the court an opportunity to consider its ruling from a different perspective.
And a word on motions for en banc reconsideration. The appellate courts frequently see motions for rehearing and motions for en banc reconsideration filed concurrently in a single document. This is permitted under the Rules of Appellate Procedure. But it is often not a good idea. Filing both motions in the same document and using the same reasoning for both deprives a party of an important tool to advocate effectively for the client’s needs.
These two types of motions have different audiences and different purposes. A motion for rehearing is addressed to the panel of judges who originally considered the case and who are familiar with the facts and legal principles of the dispute. A motion for en banc reconsideration is addressed to the entire Court, and judges who are first encountering the case on a motion for en banc reconsideration will tend to rely on the original panel’s evaluation of the case, except in unusual cases.
The scope of a motion for rehearing is different from that for a motion for en banc reconsideration. A motion for rehearing is appropriate to raise any concern regarding errors in the panel’s original opinion. But a motion for en banc reconsideration is “not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.” TEX. R. APP. P. 41.2(c). Thus, the most effective motions for en banc reconsideration focus on identifying errors that meet the criteria of Rule 41.2 or for supreme court review set out in Rule 52. Even if the motion meets the en banc criteria, it may well be denied, as the judges may conclude that the panel has already considered the issues and it is not necessary for the whole court to opine on them, to correct an error, or to frame the case for high court review.
Whether to file a motion for rehearing or for en banc reconsideration involves consideration of a complex legal interpretations, factual realities, and client objectives and needs. But a motion for rehearing can offer your best opportunity to be certain you have had your arguments heard by the appellate court or to highlight serious issues deserving of a closer look.