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Posted by attorney Christine McCall

If a person unfamiliar with the American legal system were to describe it based just on reading Avvo Q and A's for a few days, that person would conclude that one of our most important and frequently used legal mechanisms is a motion for reconsideration under California Code of Civil Procedure Section 1008 or U.S. Central District Court Local Rule 7-17. But that impression would be wrong. Persons representing themselves often reflexively seize on the notion of moving for reconsideration when they are dissatisfied with the court's initial ruling, or when they think that the court didn't focus on what they think was the critical facts or argument. But attorneys rarely use these motions.

Motions for reconsideration are very rarely successful or even useful in any meaningful way. Courts do not welcome or favor them. In facts, courts sometimes acknowledge at attorney seminars and training sessions that one of the reasons they find "pro per" (self-represented) cases so burdensome and wearying is because of the tendency of the pro per litigant to create extra unnecessary work for the court and its staff by routinely and improperly bringing motions for reconsideration.

A straight-forward reading of CCP Section 1008 (and its federal court counterpart, Local Rule 7-17 in the Central District of California) should be sufficient to prevent this kind of error, even by inexperienced Do-It-Yourself litigants. The statute on its face makes the reconsideration motion available only on the basis of specifically-identified "new or different facts, circumstances, or law" that were not shown at the original motion hearing. Violations of the threshold requirements for bringing the Motion for Reconsideration can be subject to an order of contempt and severe financial penalties or sanctions. Equally important, any order or benefit secured by a motion not complying with the standards for motions for reconsideration can be vacated on that showing alone.

The fact is that a Motion for Reconsideration is not intended to operate as a Motion for Re-Hearing. Pro per litigants should give that distinction long and careful consideration.

Before bringing any motion for reconsideration, take a piece of paper and write out a description of the factual matter that was not available at the time of the original motion, along with the date that it was acquired, the source, and -- most importantly -- the specific reason that it could not be presented to the court in the first instance (the original motion). If you don't have something substantive and objectively NEWLY ACQUIRED, do not bring the motion. What's more, if you don't have a darn good reason for not having been capable of providing the newly-acquired information info at the original motion hearing, don't bring the motion.

You may have appeal rights. Or, in family law matters in particular, the court may have reserved jurisdiction and you may have rights to request a modification for reasons of changed circumstances. But very rarely is there a sound basis for asking the court to re-do its work -- and that is exactly what a motion for reconsideration asks for.

Most courts will acknowledge that almost none of these improper and unsound motions are granted; many are not given even a passing consideration by the court. They don't work; they annoy and alienate the court; and they put the moving party at risk of sanctions, opposing party attorney fees, and contempt penalties. It is hard to conjure a less worthy legal strategy. In more than 35 years of active litigation practice in California state and federal courts, I have never once brought a motion for reconsideration. Nor have I ever once needed to respond to or defend against one brought by an opposing party. That fact alone tells a cautionary tale and merits some deep reflection.

Additional resources provided by the author

California Code of Civil Procedure Section 1008
U.S. District Court, Central District, Local Rules of Practice, LR7-17

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