Over the summer, we did a couple of posts on Brandon v. Cox, a case that’s important to appellate practitioners who use motions to reconsider to clean up the record before appeal.

In Brandon, you’ll recall, the plaintiff raised an argument in her motion for reconsideration that did not appear elsewhere in the record. There was no evidence that she ever brought that motion on for a hearing.

The Court determined that this was insufficient to preserve the point for appeal. It faulted Brandon for not filing a notice of hearing to definitively place the matter before the trial court or obtaining a ruling on her motion.

Nothing surprising so far.

But Brandon filed a petition for rehearing, pointing out that she couldn’t bring her petition on for a hearing. Under Rule 4:15(d), oral argument is heard on a motion for reconsideration only at the request of the court.

Although Brandon was pro se in the trial court, she had top-notch appellate counsel for her petition for rehearing, which was a strong piece of work–and just over 5 pages long.

The Supreme Court granted rehearing, although it declined to request additional briefing or argument. And on September 24, the Supreme Court handed down a revised opinion in Brandon.

Or rather, as my daughter might say, it handed down a revised opinion. Ish.

The result is exactly the same: a 6-1 affirmance. There appear to be 2 substantive changes to the majority opinion. The first is the deletion of the line faulting Brandon for not filing a notice of hearing. The second is a change to a footnote, which adds language stating: “Although Rule 4:15(d) provides for a hearing only at the request of the court, it is incumbent upon the party seeking an appeal to provide us with a record that shows, beyond the mere filing in the clerk’s office, that the court had an opportunity to rule.”

That’s harsh, because the Court doesn’t explain what a party is required to do “beyond the mere filing in the clerk’s office” to preserve a point for appeal. That leaves lawyers in a lurch; especially when you are first retained on appeal, a motion for reconsideration is a very useful tool to make sure that the record is in decent shape. It’s necessary to know what steps to take to do so effectively–or if that’s even possible.

While the majority opinion in Brandon remains largely unchanged, Justice Mims’ dissent is expanded to point out the problem the majority creates. He notes–quite sensibly–that parties who file motions generally do so with the intention that the court will rule on them. (The exception being the Nusbaum situation, where counsel raises an issue “just for the record.”)

For Justice Mims, the filing of a motion is proof that the movant requested a ruling. I don’t disagree. At least in the case of motions for reconsideration, the dissent would consider the “mere filing” of a document with the clerk’s office to preserve a point for appeal. That strikes me as a reasonable rule.

Justice Mims then goes a little further than I would, essentially arguing that a party has no effective recourse beyond just filing a motion for reconsideration. He points out that a letter to the clerk is likely to receive the same treatment (crickets) as the motion itself. A phone call or letter to chambers, by contrast, might be more effective, but it would be unlikely to appear in the record.

But these steps aren’t mutually exclusive. There’s no reason why you can’t correspond with chambers, copying the clerk to ensure that your letter makes it into the record. You can even apprise chambers of the 21-day rule, and explain that any failure to rule (or to suspend, modify, or vacate the final order) would effectively be a denial of your motion. To which you would, of course, object.

Is that a perfect solution? Hardly. As one of my pen pals noted, any number of bad things could happen to put a crimp in my plan. The judge could be on vacation. Opposing counsel could come down with the flu. The Supreme Court could decide that, even if you did everything I said, you still didn’t effectively object to the trial court’s denial of your motion to reconsider.

All that, and worse, could happen. That said, Justice Mims gave the VTLA some sound advice once: “When in danger, when in doubt, run in circles, scream and shout.”

In the wake of Brandon v. Cox (revisited), that’s the best plan I’ve got for preserving a point in a motion for reconsideration.