Motions to Reargue
When a lawyer loses a motion, it is common to ask the judge for a second shot. Besides spending time and money, there is rarely a downside to taking an additional opportunity to win. But a judge that ruled one way the first time is unlikely to change her mind. And the circumstances that permit rearguments are limited.
Why should you read this post about motions to reargue?
You think I am wrong about something but were unable to convince me the first time.
You want to know what lawyers do when they think a judge made a misake.
You like reading about work lawyers do that often makes no difference in the case.
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The Kinds of Motions That Get Reargued
Judges make many decisions during a lawsuit. They set schedules, decide what parties need to disclose in discovery, dismiss claims, and direct the entry of judgments. And while many courts do not specify the limits for what decisions may get reargued, in practice, parties often ask judges to reconsider certain important decisions.
One common type of decision for which parties seek reargument is a decision that decides the merits of a claim. Motions to dismiss and motions for summary judgment are major motions that can decide a case in one side’s favor or dramatically change the scope of issues remaining to be decided. As a result, a party may take every opportunity it has to confront the court with favorable evidence and law in its favor.
Another type of decision that gets reargued are decisions that are issued just before the law changes. For example, if a judge relies on another decision when deciding something, and then that other decision is overruled, the movant may ask the judge to reargue the motion with the benefit of the update in the law.
I rarely see lawyers seek reargument of procedural motions, like the kind that adjust the schedule of a litigation. This is because it is unlikely to be worth the time and expense to make these motions when they are unlikely to be granted.
The Work That Goes Into Reargument
Making a motion for reargument proceeds like most motions: the movant files a notice of motion and a brief within a specific period of time following the motion she seeks to reargue.
But the reargument motion usually does not just repeat the same arguments as the previous motion. Instead, there are rules about what the motion needs to show to justify reconsideration. For example, Federal Rule of Civil Procedure 60(b) allows reargument when there is, among other things:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; or
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.
As a result, litigants may focus their reargument motion on new evidence or on claims that the opposing party misled the court when it obtained a favorable result.
Although many litigants use a reargument motion as an opportunity to try a new argument that they did not use in the original motion, courts often do not permit new arguments in a reargument motion.
Budgeting and Costs
A major challenge posed by reargument motions is that they increase the cost of litigation. In essence, they leave open the possibility that many steps in a litigation may have to take place twice.
Even though the reargument motion is supposed to reflect a narrower issue than the original motion (whether the court made a specific mistake or whether there is new evidence) and not present an opportunity to make new arguments, litigants often use the motion as a last ditch effort to make every argument they can. This results in a cautious respondent often spending time and money to respond to every argument to ensure the court does not change its mind.
This presents a challenge for lawyers when planning a budget for their clients. When proposing the cost of a case, the lawyer may estimate the cost of litigating particular motions. But they may also have to allow for the possibility that each motion is twice as expensive because of the possibility of having to litigate motions to reargue as well.