Is there any advantage/disadvantage to filing a motion for rehearing before filing a petition for discretionary review? Similarly, is there any prohibition against filing both at the same time, or would that be counter-productive?
Preparing a motion for rehearing can really help in refining your PDR. Deadlines are what you need to watch--if you file a MFR that's just one more deadline. I don't know of any downside to filing a MFR--although personally I have never had any luck with them. Why file them at the same time? The COA will get the message that you are unhappy with its decision when you file the MFR. Just bide your time and, when it is denied, file the PDR. The PDR will be premature when filed with the MFR. If you don't want to delay things, go straight to a PDR. The COA can act on that just like MFR, if it has second thoughts about its opinion. Good luck.
MFR is really for those cases in which the court of appeals really, really got it wrong and should be given an opportunity to fix it before a higher court gets involved. I realize a PDR creates the opportunity for the same, but I doubt it gets the same attention by the court.
More likely to work though is the MFR en banc. That sends a message that the case is so bad that the rest of the judges should pay attention and fix it before they are all embarrassed by a PDR.
MFR should be rare. MFR en banc should be very rare. If not, then they will be ignored.
Best moment I ever had on appeal was winning a MFR en banc (murder case with life sentence) following reversal for alleged fundamental error and then watching the opposing PDR get denied.
Have the rules changed about the tolling of deadlines? I know it used to be that if you filed a Motion for Rehearing that tolled your deadline to file a PDR, but filing a Motion for Reconsideration En Banc did not. It wasn't changed in the proposed rules, and I didn't see if the final rules eliminated that distinction.
Rule 68.2 continues to refer only to "the last timely motion for rehearing" as a triggering event. Thus, a Rule 49.7 motion does not appear to act as a motion for rehearing, to me. Why would you not always file both motions? It seems to me the panel is always more likely to reverse directions than expecting a bunch of judges outside the panel to come in and redo the case.
That's what I thought, but I wanted to be sure. On those occassions when I've filed a motion for rehearing, I've also filed a motion for reconsideration en banc as an additional motion. (Of course, the first time I did that was on a case that had been transferred to the Sixth Court of Appeals, which I believe only has three judges. Ah well, live and learn. Everyone as the Court was very nice about it.)
[This message was edited by David Newell on 01-08-09 at .]
No doubt your motion for reconsideration en banc met with success.
Indeed, that is one way of looking at it. (And in defense of me, I did turn an unfavorable published opinion into a favorable unpublished one with my motion, so it wasn't all bad. Perhaps they took pity on me.)
[This message was edited by David Newell on 01-11-09 at .]
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