The mulligan is one of the great unwritten rules in golf. Smack a duck hook in the water? No problemo, tee up a new ball. Completely whiff with a massive John Daly-esque swing, but the wind pushes the ball one centimeter forward? Let’s face facts: every golfer takes a freebee now and then.
In legal parlance, the motion to reconsider is the closest thing to a mulligan. It asks a court to revisit a prior ruling and reach a different result, usually because the movant thinks the court got the law wrong, didn’t account for an important fact, misunderstood the party’s argument, or because new evidence has come to light.
The Rhode Island Supreme Court really doesn’t like legal mulligans. It has stated repeatedly that motions to reconsider are improper and not contemplated by the rules of civil procedure. In one recent decision, the Supreme Court continued the trend, announcing that “we take this opportunity to note that no authority exists for the filing of a motion to reconsider. The closest authority to it would be pursuant to Rule 60(b), under which in civil cases such as this, review can be had for fraud, misrepresentation, or other misconduct of an adverse party if the motion is filed within twelve months of the judgment.” In another recent decision denying admission to the Rhode Island Bar, the Supreme Court held that “we are satisfied that the committee did not abuse its discretion in declining to reconsider its recommendation that applicant be denied admission . . .There is no procedural rule providing for reconsideration.”
These recent decisions are par for the course. See, e.g., Yi Gu v. R.I. Pub. Transit Auth., 38 A.3d 1093, 1099 (R.I. 2012) (“With respect to a motion to reconsider the ruling, the Superior Court Rules of Civil Procedure, similar to the Federal Rules of Civil Procedure, do not provide for a motion to reconsider.”); Capital Props. v. City of Providence, 843 A.2d 456, 459 (R.I. 2004) (“The Superior Court Rules of Civil Procedure do not provide for a motion to reconsider.”); Francis v. Brown, 836 A.2d 206, 211 n.8 (R.I. 2003) (“This motion was treated as a motion for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure because a motion for reconsideration is not recognized.”).
Does this stiff resistance to legal mulligans hold up over 18 holes all the way to the clubhouse? Rule 7(b)(1) of the Superior Court Civil Rules states simply that “an application to the court for an order shall be by motion which . . . shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Rule 7 does not put any limitation on the substance of motions. This is probably a good thing, because the demands of a particular case, the creativity of lawyers, and the court’s decisions lead to many unanticipated or new situations — just like chess, which has nearly infinite permutations. As it stands now, lots of motions filed in court are not specifically enumerated in the rules of civil procedure. For example, Superior Court Justices presiding over the civil calendar have traditionally required a motion for conditional order of default/dismissal (and sometimes two successive motions) for non-compliance with a discovery order, prior to entertaining a motion for final judgment. There’s nothing in the civil rules that requires the extra step of a motion for conditional order.
Under the common law (precedent that originates in judicial decisions), courts have the inherent authority to reconsider their earlier rulings before final judgment enters. The Supreme Court itself has recognized this principle, observing that a trial justice “retains the inherent power to modify any interlocutory judgment or order prior to final judgment.” Murphy v. Bocchio, 338 A.2d 519, 522 (R.I. 1975); see also In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994) (“analogous to the inherent authority of courts of general jurisdiction, the power to reconsider prior decisions has been found to be conferred on administrative tribunals . . . In essence the power to render a decision in the first instance embodies the power to reconsider that decision . . . denial to such tribunals of the authority to correct error and injustice and to revise its judgments for good and sufficient cause would run counter to the public interest.”).
Disputes over earlier rulings come up frequently in litigation over the so-called “law of the case” doctrine, which says that earlier decisions in a case are usually treated as binding at later stages of the same proceeding if the same judge or a different judge encounters the same issue. The rule is not absolute and earlier decisions are not set in stone until the case is completely over. Judges can decline to apply the “law of the case” while the case remains pending. Under Rhode Island law, even if a court orders dispositive relief like dismissal, the case is not over (and the clock for an appeal does not begin) until a separate “final judgment” document enters on the docket. Given that the case ain’t over until it’s over (when final judgment finally enters), it seems logical that a judge has the inherent authority to reconsider any prior rulings right up until final judgment.
The Federal Rules of Civil Procedure, like Rhode Island’s civil rules, do not have a specifically enumerated provision for motions to reconsider. But unlike the State’s system, the federal courts routinely consider motions to reconsider, although they are rarely granted. As stated in Luckerman v. Narragansett Indian Tribe, 965 F. Supp. 2d 224, 232 (D.R.I. 2014) (citations omitted):
A motion to reconsider is an extraordinary remedy and should be used sparingly unless the court has misapprehended some material fact or point of law. The extraordinary nature of this remedy is apparent from the fact that the Federal Rules of Civil Procedure do not provide for a motion to reconsider; instead, a court’s inherent power gives it the ability to re-examine its interlocutory orders. To obtain relief, the movant must demonstrate either that newly discovered evidence (not previously available) has come to light or that the rendering court committed a manifest error of law.
Motions to reconsider do have (and should have) a low likelihood of success — they clog the judicial docket, and telling a court that it got the law wrong usually doesn’t go well — but they still play a role in unique situations. It’s always possible that a court might misunderstand a vital point or perhaps some new decision changes the landscape. Just like other motions, it’s hard to anticipate all the reasons why reconsideration might be appropriate. Usually, the fair result is for the litigant not to move for reconsideration in the first place, or for the court to summarily deny a motion to reconsider. But every once in a while, a litigant might have a meritorious reason to revisit a prior ruling. At bottom, reconsideration is an equitable remedy based on fairness, and the courthouse door shouldn’t be closed entirely.
One of these days, it might be time to take a mulligan, and reconsider the non-reconsideration of motions to reconsider.