• September 11, 2012

Update (September 11, 2012):  A loyal Minnesota Litigator reader pointed out this 2004 U.S. District Court Judge James M. Rosenbaum opinion on the process of asking a Court to reconsider its ruling.

(Original Post Sept. 11, 2012):  One of the delicate challenges for civil litigators is getting a judge to change his or her mind, to get the judge to “reconsider” his decision in a case,

Take, for example, the scenario of two litigants who disagree as to who should win the case (predictably if not inevitably) but who at least agree that there are no disputed factual issues and no need for any trial.  They bring cross-motions for summary judgment and the Court denies them both, setting the case on for trial.

This is actually not uncommon and it is not an inherently flawed outcome.  One side might claim there is no factual dispute on “Theory A” and claims to win the lawsuit on that basis. The other side claims no factual dispute on “Theory B,” claiming to win the lawsuit on this separate basis.  Each responds to the other’s summary judgment arguments claiming “factual disputes” precluding summary judgment as to “Theory A” and “Theory B” of the case.

But still.  How disappointing when both sides at least seem to agree that there is no reason of the huge expense and uncertainty of trial but the Court won’t pick a winner!  The temptation to beg the Court to reconsider is often overwhelming.

But if the effort is not jointly undertaken by the parties, unless a litigant can point to a glaring error or dramatic recent change in the legal landscape, the civil litigant might want to give such an effort a good hard look.   The chances of “flipping” the Court are probably very low.  There is the cost of mobilizing such an effort.  And judges (1) are people (who, as a general matter, do not particularly like being second-guessed), and (2) are very busy.

Minnesota Litigator concludes the post by saying that there can be no “practice pointer” in this context.  The complexity of the situation precludes any blanket pronouncement on requests for leave to file motions for reconsideration.  Suffice it to say, proceed with caution and don’t get your hopes up (or your client’s).

Seth Leventhal is a Minnesota trial lawyer with experience bringing (“you win some, you lose more”) and opposing motions to reconsider.

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