You prepared well, researching the law and mastering the facts. The judge ruled for the opposing party. You believe the judge misinterpreted facts, ignored evidence, made wrong procedural or evidentiary rulings, and failed to address all issues. What now?
You want to appeal. Before you consider an appeal, consider a motion to reconsider under Rule 59, SCRCP, New Trials; Amendments of Judgments. A motion to reconsider is not a prerequisite to an appeal but if the trial judge did not address the issue, then it is crucial. You cannot raise an issue other than subject matter jurisdiction for the first time on appeal. You will not lose your appeal for raising an issue on a motion to reconsider, but you might lose for failure to raise an issue on a motion to reconsider. I try to address every issue in my motion to reconsider I intend to address in my appeal.
You must prepare for a loss as well as a win. You prepare for a loss by protecting the record. If it is not in the record, then the appellate court may not consider it.
- At trial, note the substance of every motion or objection with the substance of the judge’s ruling. If you need it later to support your motion to reconsider or to oppose the adverse party’s motion to reconsider, this list will be invaluable. Preparation for the motion to reconsider starts long before you receive the objectionable order.
- If a judge makes a ruling in a bench conference, insist on putting the substance of the ruling on the record. The best method is during the bench conference to ask the judge to put any ruling on the record. Alternatively, or if the judge does not put it on the record, state, “please let the record reflect that during the bench conference Judge X ruled ….”
- If the judge sustains an objection to testimony you seek to introduce, insist on proffering the testimony, preferably by questioning the witness or at least by summarizing the proposed testimony.
- If the judge sustains an objection to your proposed exhibit, have it marked for identification and included in the court file.
- If you know the other side will offer objectionable testimony or physical evidence, file a written motion in limine before trial. This will be better than your oral objection and it will give the judge a better chance to consider it and make a thoughtful ruling. Even if the judge grants your motion in limine, when opposing counsel offers the objectionable evidence or exhibit at trial, you must renew your objection.
When you receive written notice of entry of an order or judgment, you must serve the motion to reconsider within ten days. Neither the court nor an agreement of counsel can extend this ten-day window. Professor Flanagan advises, “Beware that an email sent from the court, an attorney of record, or a party that provides written notice of the entry of an order or judgment triggers the time for service …” of a notice of appeal or motion to reconsider. South Carolina Civil Procedure (4th ed. 2020), vol. II, page 698, footnote 102.
Within a day of completing the trial, edit and update your trial notes. This will be helpful if either party moves for reconsideration. Consider ordering the trial transcript of record. My first family law mentor, Harvey L. Golden, preached any case worth trying is worth getting the transcript. I rarely do this but I always consider it. Getting the transcript before preparing your motion to reconsider better prepares you to write your motion. Even if you cannot get the transcript before filing the motion, it will still help in arguing the motion.
My preferred format for each point in my motion to reconsider is a statement of law followed by a statement of fact. An example from a recent case now on appeal.
An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.” (Rule 26(a), SCRFC.) The court failed to make sufficient findings of fact regarding the nature of the proceeding, the burden of proof, alleged defenses, mitigating circumstances, and attorney’s fees.
Unless you regularly prepare many motions to reconsider, before you start, read Professor Flanagan’s South Carolina Civil Procedure (4th ed. 2020), vol. II, Chapter 59, New Trials. Amendment of Judgments, pages 691-711.
The motion to reconsider should motivate everyone toward correction, compromise, and settlement. Unfortunately, lawyers, judges, and litigants often miss good opportunities to settle and end the litigation. Everyone has a mutual interest in using the motion to reconsider to resolve all issues, although they have different reasons.
- Judges want to get it right and all judges dislike reversal. Many judges are inclined to amend obvious errors to avoid the embarrassment of reversal or the work of a remand.
- The non-moving party wants to retain the benefit of the order and wants to avoid the cost and delay of an appeal. A good attorney may recognize the point will be lost on appeal and thus concede it on the motion to reconsider. The non-moving party may recognize it is cheaper to settle then defend an appeal. The respondent may wish to compromise and obtain the benefits now rather than waiting a year or two for affirmation on appeal.
- The moving party may understand the odds favoring the respondent in appeals, inducing a willingness to compromise and settle without the cost or risk of an appeal. The moving party may wish to compromise to avoid the exorbitant interest rates applying to judgments.
The motion to reconsider is often misunderstood and under used. Recognize its benefits and possibilities and use it to benefit your client.