I was not quite done with law school and the world was my legal oyster.
I had begun the task of interviewing for the next chapter in my life, one where I got paid to delve into the law instead of laboring to learn it. This was back in San Diego in my former life.
I was interviewing with the firm of Lowell, Robbin, Robbin, and Robbins and, no, despite names on the resonant letterhead, except for the consanguinity of law, I was not related to a single one of them. My interviewer was the first name on the masthead, Monte Lowell.
Lowell was a charming dark-haired litigator who leaned forward in his chair when he addressed you. He had quick, intense eyes and a smile he deployed unsparingly. Other than liking him, I don't remember too much of that interview, except one thing stuck with me and forty-some-odd years later, I still recall it. What he said was that law was not like medicine, which was something I thought I already knew. But he went on. “In fact it's more like baseball.â€
I cogitated on it for a moment and must have echoed, “Baseball?†This, I thought, was like some trick law school question.
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He said, “Exactly. You see, in medicine say you lop off the wrong arm in surgery. Oops.†His smile broadened showing pearly teeth. “There's not much going back. The best that you can do is fall on your sword. And hire a good lawyer. But in baseball…â€
I recalled the comedian George Carlin's routine about baseball, about how baseball is pastoral, and thought that was somehow coming next.
Instead, Monte Lowell said, “You see, in baseball you get three strikes. And if you foul the ball into the stands enough you can get a dozen hacks. That's what law is like. If you whiff at first, it's a long, long time before the fat lady sings. At the very least, you get another two more swings. So,†he said, “there's no reason to stress. Most times, you get a do-over. Or two. Or three.â€
Although I was so green, the Grinch at Christmas would have envied my verdant hue, what Monte Lowell meant was this; the law can be a most forgiving mistress. If at first you lose, you can try, try again to unloosen yourself from the quagmire.
Which brings us to our subject.
Rules 59 and 60 of the Colorado Rules of Civil Procedure (most states and the Fed Rules have similar provisions) give the enterprising attorney a second swing at the bat. Known as a motion for reconsideration, Rule 59 allows a party to request that the trial court review and potentially change its prior ruling. If one believes the court made a mistake, or if new information comes to light after a decision, it can be an important arrow in a litigator's quiver.
In other situations, a person may seek relief from a final judgment under Rule 60. This rule allows for a judgment to be challenged for specific reasons, such as fraud or misrepresentation by the other party.
The timelines to file one or the other motion and the specific circumstances in which they can be deployed differ. What they share in common though, is appeal to the court that wrought the judgment to take a second look, to reconsider the outcome based upon the specific facts and recitation of the law laid out in the motion.
Let's say that too — strike two — fails.
What remains can be appeal.
What an appeal consists of is taking the matter to a higher authority, specially a higher court. A legal appeal is the process whereby a party requests a higher court (the Court of Appeals) to review a decision made by a lower court. This mechanism allows a party dissatisfied with a court's ruling to seek a reassessment of the case without re-examining the facts. The appellate court focuses on legal errors that may have occurred during the trial rather than conducting a new trial or re-evaluating evidence.
Generally, an appeal can render one of three results: first, the court of appeals can affirm the trial court's decision. Essentially, it rules the trial court was right. Second, it can reverse. Notwithstanding what the lower court decided, its ruling may be overturned. And third, it can remand the matter for further proceedings (generally, with instructions). In this case, the Court of Appeals sends the matter back to the trial court to make further findings and, most often, directs it what is that the trial court is to reconsider.
So, three swings of the bat.
Monte Lowell was right. Instead of lopping off the wrong arm, law is more like baseball. Despite what can sometimes be its bulldog tactics, given the right light, it's really sort of pastoral.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,†was published in November.
