Reconsideration: The Rules and Relevant Strategies
Motions for reconsideration are essential litigation tools. Practitioners need not feel overly pessimistic about the odds for success if they have reasonable grounds for the motion.
True, you should avoid motions for reconsideration that do not raise overlooked grounds and do not pointedly and specifically indicate how the court has erred. This is not a second bite at the same motion practice, but an opportunity to advance the correct adjudication of a matter.
Where a mistake has truly occurred or you feel the court missed a critical point, seize the opportunity to get your case back on track. Judicial economy favors correction of mistakes as early as possible, before costly and time-consuming appeals begin. Trial courts are interested in avoiding or correcting mistakes. A thoughtfully presented motion for reconsideration could be just the ticket.
This article will address motions for reconsideration of orders or decisions under CR 59(a) and motions for reconsideration of partial summary judgments under CR 54. Different timelines apply to each rule. Additionally, while CR 59(a) provides specific reasons that must be found to justify reconsideration, CR 54 is more open-ended. Each rule provides the litigator with an opportunity to overcome a setback.
Motions Under CR 59(a)
CR 59(a) applies not only to new trials, but to reconsideration of "any other decision or order." The rule lists nine specific "causes," one of which must be found to justify reconsideration. The cause must "materially" affect "the substantial rights of such parties."
Timeliness. Timeliness is critical under CR 59. The motion must be brought within 10 days of the judgment, order or decision [CR59(b)]. This short timeline requires quick action. For example, if you need a transcript to support your motion, you must make the necessary arrangements in short order.
You also need to decide upon your strategy quickly after the ruling. This requires that you analyze the possible mistakes, evaluate the law, educate your client and arrive quickly at a decision to begin the briefing and gather any necessary declarations.
Briefing Style. It is important to articulate precisely and economically the grounds for reconsideration. Get to your point immediately. Give your judge exactly what he or she needs at his or her fingertips to consider what you are saying.
More than other briefs, this brief needs to be on point and well organized, and portray a professional tone. In this posture, appeal to the judge's desire to issue correct decisions. You need to convince your judge that he or she got it wrong. You will not have much time to do that. Make your points, back them up and conclude.
To make sure your brief is fresh and addresses reasons to reconsider rather than just rehashing old ground, do not copy your prior brief and try to modify it. In fact, do not even cut and paste from that prior brief to the extent you can avoid it. Get in a new mindset. Reorient the brief, trying to address just what the judge needs to know to agree with you that the prior decision needs to be changed.
Grounds. Trial courts generally do not want their dockets filled with motions for reconsideration. To make your motion stand out, you must have solid and readily apparent support for one of the CR 59(a) causes.
Be sure to cite the specific "causes" on which you are relying. There are eight, plus a catch-all;
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion, by which such party was prevented from having a fair trial:
(2) Misconduct of the prevailing party or jury;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;
(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;
(6) Error in the assessment of the amount of recovery whether too large or too small, when the action is upon a contract, or for the injury or detention of property;
(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;
(8) Error in law occurring at the trial and objected to at the time by the party making the application; and
(9) That substantial justice has not been done.
Cite the specific grounds that best apply to your situation. For example, if there's a mathematical error in the judgment, cite CR 59(a)(6),1 not the catch-all, CR 59(a)(9). Still, most lawyers also will cite CR 59(a)(9) to argue that a significant error has occurred that the trial court should want to correct. That is an important impression to convey.
Rely on CR 59(a)(7) when your position is that the judge made a mistake, e.g., misperceived evidence or the holding of a case, or applied the wrong standard. You should describe the court's misapprehension.
If you have new evidence and a justifiable reason for not having discovered it earlier, you have strong grounds for reconsideration under CR 59(a)(4). Your motion also should demonstrate that the evidence was material and potentially determinative, and is not merely cumulative or impeaching evidence.
The more frequent scenario, however, may be that you discover the new evidence more than 10 days after the decision. In that case, CR 59 is not your rule and you must rely on the counterpart in CR 60(b)(3) regarding relief from judgments. In that case, you have a reasonable time to bring your motion within one year.
You must use one of these rules (CR 59 or CR 60) for new evidence and present your case to the trial court. New evidence is not a ground that you can raise on appeal.
Policy. You should urge the policy of judicial economy to your trial court. "[P]ermitting a trial court to correct any mistakes prior to entry of final judgment serves the interests of judicial economy."2 The reconsideration rules fulfill that purpose.
Urge the court to act now to revise its past decision while it still has the opportunity to correctly apply the law or facts. It can be delicate. Your tone should be one not of criticism of the court, but of an advocate of the truth attempting to make sure that the system functions fairly and efficiently.
Motions Under CR 54(b)
Partial summary judgments are a different beast than other decisions. The time constraints of CR 59(a) do not apply to reconsideration of a partial summary judgment. The court has plenary authority at any time, without regard to CR 59 and CR 60, to revise partial summary judgment orders.
This is found in the language of CR 54(b), which states that a partial judgment "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."3
However, a summary judgment (as opposed to a partial summary judgment) is subject to reconsideration pursuant to CR 59 and you must argue within the grounds of CR 59(a).4
Address Timeliness. It is a good idea to educate the court and opposing parties about these rules in your moving brief. Otherwise, you are likely to draw an objection or at least confusion about the timeliness of your motion. Nip that in the bud by addressing why your motion is timely under CR 54(b), not CR 59.
Grounds. You may choose to cite causes for reconsideration that trace the causes in CR 59(a). Judges are familiar with them and they provide good reasons for reconsideration. You can also take greater liberties, because vacation of partial summary judgments is proper where the partial judgment "was improvidently granted."5 You can present a creative argument or interesting ground that may not otherwise be stated in CR 59(a).
Reconsideration of partial summary judgment was successfully sought in Washburn v. Beatt Equipment Co. to reinstate a previously dismissed defendant when discovery determined that the statute of repose did not apply. In Balfour-Guthrie Inv. Co. v. Geiger, the Supreme Court upheld the trial court's reconsideration of the appointment of a receiver.
Courts can vacate their own findings and conclusions, as established by In re Estate of Hopper. The Court of Appeals in Zimney v. Lovric has held that denial of a motion for partial summary judgment does not preclude a subsequent motion in limine on the same issue, even where the opposing side argued that the motion in limine was simply a tardy attempt at reconsideration. Even in the criminal context, courts hold that interlocutory orders are subject to revision, such as an order granting deferred prosecution in Alwood.
In sum, partial summary judgments are interlocutory and do not prevent subsequent relief on the issue decided. No time limitation applies, other than that you must seek reconsideration or a new ruling before final judgment in the case. In the right case, employ CR 54(b) and convince your judge that the circumstances of your case support reconsideration.
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Motions for reconsideration are sometimes considered a cost-effective appeal. You don't have to pay a new filing fee or assemble a record to seek to avoid an erroneous decision. You just have to convince your court that a new ruling is justified by new developments, accurate law or a correct view of the facts.
Do not simply reiterate your prior position and ask the judge to re-decide the same matter. Directly educate your judge about the reasons reconsideration is appropriate for your case.
Litigators know they can lose some battles, but win the war. Reconsideration can help you get there.
1 Regarding computation in decisions and judgments, always, always, always take out your calculator and check the judge's or jury's math. Do not assume that the number reflects the method or decision that the judge or jury says was followed. It's better to verify, because mistakes do happen.
2 Alwood v. Harper, 94 Wn. App. 396, 400–01, 973 P.2d 12 (1999).
3 See Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 300, 840 P.2d 860 (1992); Zimney v. Lovric, 59 Wn. App. 737, 801 P.2d 259 (1990) ("Since denial of the partial summary judgment was neither appealable nor final, it cannot be considered a ‘judgment' for purposes of CR 59. Therefore, the notice requirements of CR 59 are not applicable to [a motion that seeks reconsideration of a partial summary judgment]."); Maybury v. Seattle, 53 Wn.2d 716, 336 P.2d 878 (1959) (a partial summary judgment is interlocutory only, and its name is a misnomer because it is not final and is more in the nature of a pretrial order).
4 Davies v. Holy Family Hosp., 144 Wn. App. 483; 183 P.3d 283 (2008) (citing Go2Net, Inc. v. C.I. Host, Inc., 115 Wn. App. 73, 90, 60 P.3d 1245 (2003)).
5 Balfour-Guthrie Inv. Co. v. Geiger, 20 Wash. 579, 580, 56 P. 370 (1899) (when a judgment is not final, the trial judge retains jurisdiction to vacate any previous order improvidently made); Alwood, 94 Wn. App. at 400–01 (the principle of Balfour-Guthrie being unmodified, the commissioner was free to vacate an interlocutory order "upon concluding that it was improvidently granted") (citing In re Estate of Hopper, 53 Wn.2d 262, 269, 332 P.2d 1077 (1958) (prior to entry of final judgment, trial court had authority to vacate erroneous findings of fact and conclusions of law, which were interlocutory in character)).
Originally published in the August 2010 issue of the King County Bar Bulletin. Reprinted with permission of the King County Bar Association.