Thinking Appellate Reconsideration? Remember A Few Good Men

During the trial in the 1992 film A Few Good Men, Lt. Commander Joanne Galloway (played by Demi Moore) lodges a “strenuous” objection to expert witness testimony. The presiding judge, Col. Julius Randolph (portrayed by J.A. Preston), overrules the objection. But then Galloway moves the court to “reconsider” its decision. This causes the judge to blow his stack — “your objection is noted!” — and angrily deny the request.

This is something to keep in mind when contemplating filing a motion for reconsideration with an appellate court.

After an adverse appellate panel decision, it is natural to ask: “can we seek reconsideration?” Technically, the answer is “yes.” Most appellate courts allow reconsideration and reargument requests. But that does not mean they should be filed. In the overwhelming majority of cases, this path is not worth pursuing, as appellate courts dislike and very rarely grant these motions.

This attitude is baked into the appellate courts’ rules.

In the federal system, en banc (full court) reargument “is not favored and ordinarily will not be ordered” unless the case involves a question of “exceptional importance” or reargument is needed for consistency in the court’s decisions. The Third Circuit has taken this aversion a step further, requiring counsel to certify, “based on a reasoned and studied professional judgment,” that reargument is a must.

State appellate courts also generally have a dim view of reconsideration and reargument. For example, in Pennsylvania, reargument is allowed “only when there are compelling reasons” for granting it.

Seeking full-court reargument to grab the attention of the court’s other judges also may not be a useful strategy in some courts. This is because those other judges may have already reviewed the panel opinion. For instance, the Pennsylvania Commonwealth Court circulates every proposed panel opinion to all the court’s judges. The same goes for precedential opinions of the Third Circuit.

What’s more, in both the federal and most state systems, a reconsideration request is not a required precursor to discretionary or other review by a higher court. So a reconsideration or reargument request generally is not even required to preserve remaining appellate rights.

Of course, there are exceptions to every rule — and this one is no exception. Reconsideration or reargument may be warranted in a few situations. A panel decision may create inconsistency with another decision. Perhaps the panel decision contains a factual error that needs to be corrected. That error could be a small mistake or case-dispositive. Maybe the court missed a controlling decision or did not know about a pertinent new one. Or perhaps the court did not know about a related or similar case.

But simply asking an appellate court to “take another look” at a dispute is not a good reason to ask for reconsideration.

In short, in the overwhelming majority — one dares to say 99% — of cases, appellate reconsideration or reargument should not be sought, as it almost certainly will be denied.

Can you handle the truth?