Vail Daily column: When the fat lady sings
To coin a phrase, as we lawyers might be prone to articulate it, “Final resolution of the matter in question is not dispositively determined until such time as the corpulent woman lifts her voice in lyrical celebration.” Stated otherwise, as Yogi Berra might more succinctly say, “It ain’t over till the fat lady sings.”
In law, as in so many other things, the “fat lady singing” comes only at the end of the game. Trial is not the end of the line, although it certainly may feel so. It is only the first blow in what may be several blows until, at last, the final fatal blow is summarily delivered. Or, instead, to lose at trial might, in the larger scheme of things, only be a glancing blow on the way to ultimate vindication of the matter in dispute.
A loss at trial may lead to an appeal which is the method by which a higher court reviews the appropriateness of a lower court’s decision. Appeal may involve a two-stage process — first to an intermediate court of review and, ultimately, to the Supreme Court of the particular state, or of the United States. If the appellate court (that is, the court to which the trial matter is appealed) finds that some further action must be taken, or further matter must rightly be considered at the trial level, then it may “remand” or send the matter back to the trial court from which it came for further proceedings. In essence, the original trial court re-opens one or more aspect of the matter for its determination.
“Retrial” or rehearing occurs where an altogether new trial is ordered concerning a matter which has already been once tried. Generally, retrial is ordered where an error, omission or oversight occurred the first time around at trial. In retrial, something of potential significance to the outcome of the trial may have been influenced by the suspected error or omission, and so fairness dictates a second crack at the judicial pinata.
Rather than remand the matter to the trial court, the appellate court may reverse (read this “overturn”) the decision of the lower court, or uphold the lower court’s determination. The appeals court may also reach a determination on some, but not all of the issues heard at trial and may remand in part, sending some, but not all issues back to the trial court for further action. The appellate court may reverse in part and uphold in part. It may consider some but not all of the trial issues on appeal.
De novo means “anew.” Accordingly, a trial de novo connotes a new trial or retrial had in which the whole case (and not merely some aspect of the case) is retried as if no trial whatever had taken place. It is to law what “play it again, Sam” is to Casablanca. In a trial de novo, all parties trip the judicial ivories as if no music had been forthcoming until that moment. It’s like deja vu absent the deja or the vu, even though, to the participants it must feel like they have certainly been there before.
A trial de novo can, of course, itself be appealed. Since the first trial never happened in the first place, the second (or new) trial, if the outcome is less than thrilling, can be appealed to a higher source.
Appeal to the Supreme Court from the relevant court of appeals is granted only upon certiorari, which is an order by the higher court directed to the lower court to send the higher court the lower court’s records so that higher court can consider the matter, that is scour it for error. Think of certiorari as the high court’s invitation to the king’s ball of jurisprudence — by invitation only. Ordinarily, the Supreme Court only “certs” matters of special interest or controversy or which regard developing areas of the law. It may also cert matters that have been the subject of divergent or differing opinions, outcomes or judicial reasoning in the lower courts.
“Reconsideration” is — uh oh — just what it sounds like. The court gives something a second look. Most often in matters of reconsideration the judge assigned the case will make a ruling on some pretrial motion or another involved in prosecution of the case and, upon request (or motion), by one of the parties or the other may “reconsider”’ the matter based upon some new tantalizing tidbit of fact or law. Reconsideration is, in fact, a circumstance of deja vu — vu, in French meaning “look” and deja meaning “again.” The judge looks at the matter again. Presumably, however, he or she looks at the matter this time from a different perspective in light of the new facts or law presented or, at least, through the prism of this new lens of information.
So law is truly never having to say adios after the first swipe of the judicial bat. Like Mighty Casey, you get two, and sometimes even three good whacks before you’re out. And your seat in the dugout of jurisprudential rejection and dejection is kept warm for you until the fat gal with the blindfold on belts out her final ballad.
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 Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.
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