They Got It All Wrong!

Despite your best efforts, the appellate court ruled against you. You just read their opinion, and you are mad as hell. They got it all wrong! The rules allow you to file a petition for rehearing, so go for it, right? If you show the court the error of their ways, they'll correct it—and probably apologize and thank you.

Whoa! Think about it. Put yourself in the shoes of the Justices. Suppose you had already put many hours into reading the briefs, reviewing the record, doing legal research, hearing the oral arguments, and writing and issuing an opinion publicly committing yourself to a position. Would you then be eager to announce to the world, "Oops. Sorry. I'm not as smart and careful as you thought I was. Guess I'll do it all over again.”

Only rarely do appellate courts grant petitions for rehearing. Consider how grim your chances are before spending more of your client's money fighting a losing battle. And think of the emotional effect on the client. She's already disappointed by the opinion. Why inflict a second disappointment on her when the Court of Appeal denies your petition for rehearing?

You might have a chance if the court relied on a crucial factual statement that is "wrong" under the applicable standard of review. But this is very rare. The usual challenge is to the court's reasoning or its alleged failure to follow precedent. Never works. (Well, hardly ever.)

But, you say, "I don't care about the odds. I'm mad, and filing a petition for rehearing will make me feel better. I need to tell those guys how incompetent they are. It won't take me that long, and maybe I won't even charge my client for it."

But your client might pay a price for this.

Let's go back to the stats. In that tiny handful of cases where the court granted a rehearing, what happened next? Did they then change the bottom line from "Affirmed" to "Reversed" (or vice versa)? Almost never. What usually happens is a "modification". The court reviews your petition for rehearing and realizes that you are partially right—their opinion really does have a couple of shortcomings. So they fix them, and issue a new, stronger opinion against you—but one with the same bottom line.

Not good. Your best chance for winning the case might be to ask the state Supreme Court for review. This too has low odds. But those odds are probably better than the chance of turning around appellate judges who have already committed themselves.

When you draft a petition for review by the California Supreme Court, one of your arguments will be how bad the Court of Appeal opinion was—poor reasoning, lousy policy, out-of-step with other cases, etc. The worse the Court of Appeal opinion, the stronger this argument will be. Why give the Court of Appeal a chance to modify its opinion to take away your best arguments about how bad it was? That might be the result of a petition for rehearing. Your best strategy might be to let a bad opinion stay bad.

There is, however, one situation where you should seriously consider filing a petition for rehearing. You cannot seek Supreme Court review of a Court of Appeal ruling on the ground that the opinion omitted or misstated a material fact—unless you filed a petition for rehearing giving the appellate court a chance to fix this. Rule of Court 8.500(c)(2). So do it when you need to, but don’t plan on getting the Court of Appeal to change its result.

by M.A.T. Legal Director Myron Moskovitz