Appellate motions for rehearing are a challenge. You need to convey that the Justices have made a critical error, without crossing an invisible line to being combative.
So, when the Texas Supreme Court grants rehearing, I make a point to read the motions to see what caught the Court’s eye.
Last week, it granted rehearing in Mabon Limited v. Afri-Carib Enterprises, Inc., No. 09-0715, about a default judgment when the defendant did not get notice of the trial court hearing. The questions were procedural and somewhat dry, about what level of diligence is needed for a party to use a “bill of review” process to bring its challenge after the time for appeal has expired.
So how did David Holman, counsel for Mabon Limited, turn this into something dramatic?
The entire twelve-page motion for rehearing is formatted as a transcript of a “fictional exchange between an Editor (‘ED’) of Corporate Counsel Quarterly and a Legal Reporter (‘LR’).” Using this literary device let counsel put this criticism into other voices (albeit fictional ones).
The two characters discuss the case, walking through some of the twists and turns in a conversational way. The motion concludes by turning what often seems like an empty warning (“the press won’t like this!”) into something cute:
ED: Well, okay. I’ll tell you, here’s what we’re going to do. Let’s wait before we run this story to see if the Texas Supreme Court grants rehearing to prevent the Fourteenth Court of Appeals’ opinion from becoming law?
LR: Good idea.
ED: I’ll keep my fingers crossed.
LR: Me too.
The Texas Supreme Court’s response? It granted rehearing to reinstate the case to its docket, which might mean this pilot gets picked up for a full season. (( The petitions were denied on February 25, 2011, so the Court was approaching its 180-day deadline for rehearing motions. This grant of rehearing gives it more time to mull over these issues. ))
Was it the screenplay, or the plot?
The dialogue format wasn’t the only unusual feature of this case. It turns out that both sides were seeking rehearing. Although they disagreed with each other, they both agreed that at least something was wrong below.
We don’t yet know who the Court will ultimately side with — or if it will eventually deny the petition again without reaching the merits. (( That’s still an option. )) So, until those ratings are in, you may not want to hire a desperate Liz Lemon or Aaron Sorkin to ghostwrite your next motion — just yet.