Getting the Judge to Change His or Her Mind – The Law Offices of Richard A. Marcus

As those of you know who regularly follow this column, I have been practicing law for over 30 years now. As a much younger lawyer, I prescribed to the philosophy that they have in the entertainment industry: “You can always fix it in post [production]”. I prided myself on the fact that I did my own appeals. Something not many lawyers do. The problem is that there are a whole bunch of rules that apply with the appellate court giving large deference to the trial court’s decision.
I have learned over the years that it is better to not have to try to fix it “in post”. Meaning, do your best to make sure the Judge gets it right the first time. Sometimes you do, but they don’t. Yes, you can file a motion for reconsideration. But there are a number of strict procedural requirements which go beyond the scope of this article. For example, one of which is that the motion must be made within 10 days of the original motion.
Seasoned litigators however, have a trick up their sleeves, thanks largely to the California Supreme Court case of Le Francois v. Goel (2005) 35 C4th 1094. The holding of the case is that CCP § 1008 [the section dealing with reconsideration motions] does not limit the trial court’s inherent power to reconsider its previous orders on its own motion at any time before entry of judgment, so long as it gives the parties notice and a reasonable opportunity to litigate the question. See also, Marriage of Herr (2009) 174 CA4th 1463, 1469; Marriage of Spector (2018) 24 CA5th 201, 204.
That means that irrespective of a motion for reconsideration, a court can decide on its own to change its mind. But what is really cool about Le Francois is that it permits the trial court to decide whether to reconsider its prior ruling in response to a party’s “suggestion!
“We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling ” The example the court used was at a status conference. So, even if you lose a motion, you have the ability to say to the Judge, even in a completely unrelated proceeding, that it may wish to re-consider its prior decision. Please consider this a suggestion and have a very Happy Birthday, LGM.
Please contact the Law Offices of Richard A. Marcus for all of your litigation needs at 661-257-8877.