Hallowed ground
What’s up in the U.S. 5th Circuit’s en banc courtroom


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Very good advice. In my view, if you lose you should always file a motion for rehearing or motion for panel rehearing. But most lawyers don't understand how to write an effective one. The best motions point out problems with the reasoning of the Court's opinion and why the court should take another look at the case. There's nothing an appellate court fears more than misstating the law or misstating the facts. If you can find places where that occurred you have a very good chance at getting the court to take a very close look at the opinion and you at least force the court to deny with modifications. But most motions as Garner points out take an angry or disrespectful tone and attack the court and judges personally. Why a lawyer would ever want to do that is beyond me. And in cases where there is a dissenting opinion, many lawyers seeking rehearing simply parrot the dissent and make the exact same arguments the dissent made. That's a tactical mistake in my view. The lawyer should focus on the majority opinion and try to undermine the majority's analysis. By parroting the dissent you do not raise anything new for the court to consider and the court can easily conclude that your motion does not meet the standard for rehearing. Plus the dissenting judges will almost always be inclined to grant your motion. The focus should be on flipping judges who joined the majority opinion.

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