Beware the Law of the Case

Robert Mandel

By Robert A. Mandel

Robert A. Mandel is co-founder of Mandel Young plc (, a Phoenix-based appellate law firm. Known for his potent advocacy, Rob routinely appears in business, constitutional and public law disputes pending in the federal and state appellate courts, where he handles appeals of final judgments, preliminary injunctions and other interlocutory decrees, petitions for writs of certiorari (review) and mandamus (special actions), certified questions, motion practice, and the representation of amici curiae. Rob also is retained as appellate counselor-in-residence, working collaboratively with litigators to optimize their cases for trial and appeal and undertaking primary responsibility for critical projects, including dispositive motions.

Recently, while reviewing a trial court transcript of oral argument on a motion for reconsideration, my attention was drawn to the strident protests of three defense attorneys (one per defendant). Each was hell-bent on persuading the trial court that the rulings underlying its earlier Rule 12(b)(6) dismissal order could not be revisited prior to appeal absent a showing of changed law, new facts or clear error because they were “law of the case.” As any appellate attorney could have told them, they were wrong.

This is not to suggest that the defense attorneys above are alone in their confusion about the law-of-the-case doctrine. Similar arguments occur with some frequency in our federal and state trial courts. Hopefully this column will clear up the confusion and help the reader avoid the ugly consequences such misconceptions can cause.

The law-of-the-case doctrine is best understood both in federal and state practice as a continuum of interrelated, court-fashioned rules. The doctrine, which “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case[,]”1 was designed to “maintain consistency and avoid reconsideration during the course of a single continuing lawsuit of those decisions that are intended to put a matter to rest.”

Yet, in applying these rules, trial judges must strive to reach an appropriate balance between the objectives of maintaining stability and preserving their ability to operate justly.3 The proper balance depends largely on how far the case has progressed.

Contrary to the position advanced by the defense lawyers above, the law-of-the-case doctrine “‘does not deprive a judge of the power to change his or her own non-final rulings’ prior to entry of final judgment ‘simply because the question was ruled on at an earlier stage.’”4 A trial judge retains the authority to change a ruling prior to entry of the first final judgment for any just reason, regardless of whether the law or facts have changed. In other words, stability takes a backseat to justice at this stage, as “reconsideration often is better deserved, and more important, while an action winds its way to the first final judgment in the trial court”5 rather than after.

Things are different after an appeal. The U.S. Supreme Court has long held that “an inferior court has no power or authority to deviate from the mandate issued by an appellate court,”6 but instead must adhere strictly to the “letter and the spirit of the mandate.”7 And the Ninth Circuit is in accord—holding that the “mandate rule,” as it is called, is jurisdictional.

Whether or not a mandate violation rises to the level of jurisdictional error under Arizona law is a question the Arizona Supreme Court has answered inconsistently over the years, sometimes cleaving to the Ninth Circuit’s non-discretionary approach and other times assuming a more lenient posture, especially when the trial court is faced with an intervening change of law.9 Jurisdictional or not, it is a rare occasion indeed in which an Arizona trial court may disregard the appellate court’s mandate.

Even where the appellate court fails to resolve a matter raised on appeal, either explicitly or by necessary implication, there is a “presumption against reconsideration.”10 It is in this posture that arguments regarding changed law, new facts, or clear error become relevant. Only when such a showing is made may the trial court and subsequent appellate panels deviate from factual and legal issues already decided in the first trial.11 Again, before the first appeal, the balance between stability and justice affords the trial court virtually unfettered discretion to reconsider its earlier rulings.

The distinction can have case dispositive results. If a lawyer mistakenly believes the trial court is without power to correct its earlier rulings, he or she may fail to file motions that are necessary and appropriate to raise and preserve issues on appeal. Likewise, if the trial court mistakenly believes it lacks the authority to correct its rulings, it is likely to deny meritorious reconsideration motions. Such mistakes occur. By consulting with your appellate attorney before the appeal, you can hopefully avoid such dire consequences for your clients.