Apart from briefly savoring your victory, take the necessary steps to secure any award of fees or costs granted by the Court of Appeals. If you have been awarded fees, you need to file and serve an affidavit of fees and expenses within 10 days of the decision. RAP 18.1(d). If you “substantially prevailed” on review you will also typically be entitled to “costs” as per RAP 14.3 (for such things as transcripts, filing fees, and copying expenses), and will need to file and serve a cost bill within 10 days of the decision. RAP 14.4. To enforce an award of fees or costs, you will need to reduce it to judgment in the trial court. However, you cannot implement the Court of Appeals’ decision in the trial court until the Court of Appeals issues its “mandate,” as described in RAP 12.5. The mandate issues thirty days after the decision was filed, unless a motion for reconsideration, a motion to publish the opinion, a motion to modify a commissioner’s ruling, or a petition for review in the Supreme Court has been timely filed, in which case the mandate is delayed until these matters are resolved. RAP 12.5(b).
If the opinion sets a favorable precedent for your client, you will want to consider moving for publication if the decision was unpublished. RAP 12.3(b). Any such motion should be served and filed within 20 days of the decision. Be aware, however, that filing such a motion serves to extend the time the other party has to petition for review to the State Supreme Court. RAP 13.4(a).
What should you do if you’ve lost?
If you have lost in the Court of Appeals, you have to make a new cost-benefit calculation. Based on the reasoning in the opinion, is it worthwhile to seek further review? You have to make up your mind quickly, since a petition for review to the State Supreme Court is due 30 days after the decision by the Court of Appeals. RAP 13.4(a). You can buy yourself more time by filing either a motion for reconsideration or a motion to publish. If you file either of these two motions, the deadline for filing a petition for review to the State Supreme Court is pushed back to 30 days after such motion is decided. If your motion for reconsideration is granted, you still may not be happy with the ultimate outcome. See RAP 12.4(g). In that case you have to proceed directly to a petition for discretionary review—you can only file one motion for reconsideration per case, unless the Court of Appeals withdraws its opinion. See RAP 12.4(h).
A motion for reconsideration is generally a relatively low cost affair. In particular, since the other side is not supposed to file an answering brief unless asked to do so by the Court, filing a motion for reconsideration will typically not result in your having to pay additional attorneys’ fees to the other side. RAP 12.4(d). Also, every sort of significant error made by the Court of Appeals is fair game in a motion for reconsideration, unlike in a petition for review. If you believe the Court of Appeals made a significant error which nonetheless does not fall within the limited categories set by RAP 13.4(b), a motion for reconsideration is your only hope, and hence may merit considerable effort. However, the vast majority of motions for reconsideration fail. Indeed, the author suspects that most motions for reconsideration are handled on a “we pretend to ask for reconsideration, and they pretend to give it” model, with the real goal being understood by all involved to be gaining time for a more thorough petition for review.
The direct cost of preparing a petition for review is typically substantial, on the order of preparing a reply brief, or possibly more. In addition, if the Court of Appeals ordered you or your client to pay the other side’s attorney’s fees in its decision, there is a very good chance you will have to pay the other side’s fees for answering the petition for review, if the petition is denied. RAP 18.1(j). The great majority of petitions for review are denied, so think carefully about whether you have a strong case that the Court of Appeals erred in a way that fits within the criteria set forth in RAP 13.4(b). The required content of a petition for review is set out by RAP 13.4(c). If the Supreme Court accepts review, within 30 days of that acceptance any party may file a supplemental brief of up to 20 pages, as governed by RAP 13.7.
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