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Brenton | APPELLATE PRACTICE & PROCEDURE
Understand the Mandate Rule to
Avoid Snatching Defeat from the
Jaws of Victory
By Kyle W. Brenton, Esq.
Introduction
court) and the mandate is largely pragmatic. After the opinion
issues, the parties have the opportunity to petition for rehearhen the appellant wins an appeal, the opinion often
ing or certiorari, and the appellate court must thus retain
ends with two words that sound like music to the
jurisdiction over the case to allow consideration of such a
victor’s ears: “REVERSED and REMANDED.” But while
petition. In this first sense the mandate, while important
the vast bulk of the parties’ work aims (understandably)
for reasons of timing and procedure, is largely a formality.
toward the first of those two words, few trial or appellate
practitioners devote enough attention to the second. The
The second sense in which courts and practitioners use
appellant may know precisely how the district court erred the term “mandate” is much more important. In the words
and exactly why it should be reversed, but unless the attorney of the Tenth Circuit, the mandate “consists of our instrucrepresenting the appellant has given thought to the shape and tions to the district court at the conclusion of the opinion
scope of the possible proceedings on remand, he or she runs and the entire opinion that preceded those instructions.”2
the risk of leaving the client worse off than if no appeal had In this sense, the mandate is the sum total of the appellate
been filed at all. While the specific content of the appellate court’s instructions to the district court as to what the
court’s mandate can no more be controlled than the outcome district court is permitted - and required - to do on remand.
of the appeal, by understanding the nature and legal effect The mandate sets the parameters for the litigation on
of the mandate, the well-prepared appellate attorney can
remand and marks boundaries beyond which the district
minimize the risk of a win on appeal collapsing into a loss court is not permitted to venture.3
on remand.
To govern the application of the mandate on remand,
courts have developed the “mandate rule.” Put simply, the
The Mandate and the Mandate Rule
district court on remand is constrained by the specific inWhen an appellate court reverses and remands for further struc tions contained in the appellate court’s mandate.
proceedings, the “mandate rule” governs the scope of those “The mandate rule has been described as ‘the more powerproceedings. Appellate practitioners and courts use the term ful version,’ or ‘the purest form,’ of the law of the case
“mandate” in two different senses. First and simplest, the doctrine.”4 It is more powerful because, while a district
mandate is the final order of the appellate court that terminates court may deviate from its own previous rulings under longthe appeal and returns jurisdiction over the case to the district recognized exceptions to the law of the case doctrine,5 it has
court.1 This order issues a specified number of days after the no power to abrogate the holding of the appellate court - a
court releases its opinion deciding the case, and Colorado
notion that, in the words of one prominent treatise, “inheres
Appellate Rule 41 in state court, and Federal Rule of Appellate in the nature of judicial hierarchy.”6 Though there are exProcedure 41 in federal court governs. The separation in time ceptions to the mandate rule, they are narrow and rarely
between the opinion (which is the judgment of the appellate invoked successfully.7
W
Colorado Trial Lawyers Association
Trial Talk
April/May 2014
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APPELLATE PRACTICE & PROCEDURE |Brenton
Though the mandate controls where
it applies, its scope is limited to those
issues actually decided by the appellate
court. The “conclusions of an appellate
court on issues presented to it as well
as rulings logically necessary to sustain such conclusions” are part of the
mandate, and bind the district court on
remand.8 Thus, the district court on
remand must adhere to both the holding
in a narrow sense (the reversal or affirmance based on the issue before the court),
and the rationale underlying that holding (the reasoning that led the appellate
court to reverse or affirm). Dicta in the
appellate opinion, however, are not part
of the mandate and are not binding.9 It
is not uncommon for an appellate court
to unknowingly make such dicta observations in its account of the facts of a
case, which often includes background
facts not essential to the issues on appeal.
It is advisable to use caution, however,
in arguing that a statement in an appellate opinion was mere dicta. A district
court likely will be hesitant to conclude
that it may disregard a statement in an
appellate opinion, and if it does so
and the case proceeds to a second
appeal, the court of appeals may view
its own prior statements as substantive
despite the district court’s conclusion
to the contrary.10
order dismissing the case or granting
summary judgment - the scope of the
remand is uncontroversial. The order
reverses the final judgment, reinstates
the case in the district court, and the
litigation proceeds as if the court had
never entered the now-reversed order.
The mandate, though, is limited to the
issue presented to the appellate court
and the posture in which that issue arose.
For example, if the district court entered
summary judgment against the plaintiff
because it perceived no issue of fact to
be tried, and the appellate court reverses,
the defendant is not then precluded from
arguing in a later motion for directed
verdict that the plaintiff has failed to
present evidence sufficient to carry its
burden. The appellate court under those
circumstances decided only that a fact
issue existed. Because of the posture
in which the appeal arose, the appellate
court could not decide whether the evidence that gave rise to the fact issue met
the plaintiff’s evidentiary burden on
the merits.
This is not to suggest that pretrial
remands have no effect beyond restarting the case. To the contrary, in an
appeal of a dismissal or summary
judgment, the appellate court may
reach legal conclusions vital to the
continuing proceedings on remand.
The appellate court may determine, for
Types of Remands
example, the viability of a legal claim
The mandate rule thus appears simple: in the relevant jurisdiction, or clarify
the district court must follow the inthe elements of a cause of action or the
structions of the court of appeals. But facts necessary to establish liability.
this apparent simplicity gives way to
When that happens, the district court
considerable complexity in practice.
of course must apply on remand the
While any particular remand is as unique substantive law articulated by the
as the case in which it occurs, remands appellate court.
typically fall within one of three categories: pretrial, general and limited. General Remands
If the case has been tried on the
Pretrial Remands
merits, issues concerning the precise
When the appellate court reverses a scope of the remand become thornier
pretrial final judgment - such as an
and more significant. There are two
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April/May 2014
Trial Talk
types of remands after a trial: general
and limited. Where a remand is general,
the result of the first trial is entirely
erased, “as if the case had never been
tried.”11 Where the appellate court has
remanded generally, “the entire question
of [defendant’s] liability [is] at issue
upon retrial.”12 A general remand may
be appropriate where, for instance, the
trial was conducted under an erroneous
pretrial legal ruling from the district
court, which was properly preserved
for appeal,13 where an error in admitting
or excluding evidence affected an issue
fundamental to the outcome or where
the jury was incorrectly instructed as to
the law governing its decision. By and
large, a general remand is the default
result when an appellate court reverses
a judgment after a full trial - appellate
courts typically hesitate to decide which
issues an error at trial affected. They
know that a trial is a holistic endeavor
and that error in one portion can have
unanticipated effects elsewhere.
The scope of a general remand for a
new trial, though, is limited to a re-run
of the trial itself. Pretrial orders of the
district court that are not raised on
appeal - legal conclusions reached on
summary judgment, for example, or
pretrial orders in limine unrelated to
the error that led to reversal - generally
are not open to reexamination on remand
unless they were specifically considered
and reversed by the appellate court.
Even where the appellate court enters
a general remand for a new trial, the
district court is not “permitted to reconsider its own rulings made before
appeal and not raised on appeal.”14
The rationale for this rule is that the
appellant had the opportunity to raise
such issues in the appeal and by foregoing them waived any error in the
previous rulings.15 This reasoning
applies equally to issues that the appellee could have, but did not, assert in a
Colorado Trial Lawyers Association
Brenton | APPELLATE PRACTICE & PROCEDURE
cross-appeal. This principle, though,
can be “clouded by uncertainty as to
what was decided” in the appeal, 16 and
the precise scope of even a general
remand may need to be clarified by
either the appellate or district court, as
discussed below.
Limited Remands
The final category - limited remands
- gives rise to the most problems. In a
limited remand, the appellate court
reverses only part of a trial, but leaves
the rest in place. The most typical example arises in the context of damages:
where an error by the district court
affected only evidence related to
damages, but not to liability, the appellate court may remand for a new trial
limited to a determination of damages
untainted by the previous error.17 When
the appellate court commands a limited
remand, “the district court is limited
to holding such [proceedings] as are
directed.”18 “If an appellate court remands with specific instructions, those
instructions must be followed exactly
to ensure that the lower court’s decision
is in accord with that of the appellate
court.”19 On retrial, “only those issues
specified by the reviewing court on
remanding the cause may be retried in
the lower court.”20
defendant choose to retry damages alone Mandate Rule Problems
if the jury were precluded from conEnforcement of the appellate court’s
sidering the plaintiff’s contributory
mandate is not always a simple proponegligence, for example.
sition, because the mandate itself may
Where a remand is limited, the pre- not be specific enough to account for
cise scope of the mandate becomes
every contingency on remand. This is
critical, because the district court risks so for at least three reasons. First, most
a second reversal if it fails either to
appellate courts are by disposition
implement the mandate fully or to
minimalist; appellate judges typically
respect the bounds set by the appellate limit themselves to the arguments and
court. Such cases often give rise to
issues presented to them by the parties,
further appeals in which the parties
and by temperament they are not inclined
argue that the district court erred by to go beyond the narrow issue on which
failing to adhere to the mandate. In
they are reversing to give detailed insuch an appeal, the Colorado courts
structions to the district court regarding
review the district court’s interpretahow to do its job on remand. Second,
even if an appellate record contains
tion of the mandate de novo,21 while
the Tenth Circuit considers “whether
every document filed in the district
the court abused the limited discretion court, the court’s attention is rarely
that [the court’s] mandate left to it.”22
drawn to collateral issues not argued
on appeal - and as often as not, it will
Limited remands make sense in
theory, because if an error was truly
confined to either the liability or the
damages phase of a trial, only the infected phase need be repeated. Under
such circumstances, a limited remand
serves the causes of efficiency, economy
to the parties, and preservation of judicial resources. In practice, though, no
jury considers evidence of liability or
damages in a vacuum. Few plaintiffs
would want to try only damages against,
say, an insurance company, if the jury
would be prohibited from hearing evidence of how the company mishandled
the plaintiff’s claim. Nor would a
Colorado Trial Lawyers Association
Trial Talk
April/May 2014
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APPELLATE PRACTICE & PROCEDURE |Brenton
be the collateral issue overlooked by
the parties on appeal that will become
crucially important, even outcomedeterminative, on remand. 23 Third,
while appellate judges are thoughtful
and deliberate, they and their clerks do
not always think in great detail about the
nature of proceedings on remand, and so
they can sometimes overlook even seemingly obvious remand issues.
All of this can add up to a perfect
storm for the appellant, in which a
client ends up worse off by virtue of
winning an appeal than they would
have been otherwise. This unfortunate
result may come about in a number of
different ways. For one, a trial is a stressful and expensive endeavor. Winning a
general remand that requires an entirely new trial may, in the client’s eyes, be
worse than simply paying the original
judgment or walking away from a claim
altogether. For an individual plaintiff
or defendant, a general remand means
re-living the ordeal of testifying, being
cross-examined, and putting his or her
livelihood in the hands of a group of
complete strangers - the jury. For a
corporate client, employee-witnesses
may have left the company (perhaps on
poor terms), or the company’s financial
situation may have changed in a manner
that makes the risk or cost of a second
trial untenable.
Beyond the financial and emotional
difficulties of litigating a second trial, a
general remand also may allow both
sides to remedy the mistakes they made
the first time around. No trial unfolds
perfectly, and in the high-pressure environment of the courtroom, even the most
skilled trial attorney will inevitably miss
an objection, fail to get an exhibit admitted or fail to elicit useful testimony from
a witness. On the appellant’s side, getting
a second chance to repair these missteps
may have been the very reason to appeal
in the first place. But on remand, the
appellee too has the opportunity to put
12
April/May 2014
right what once went wrong, and to
re-make strategic decisions with the
knowledge of how they turned out the
first time through. This could translate
to a distinct advantage.
Finally, where the appellate court
orders a limited remand, both sides
face dramatically increased uncertainty.
Even a remand as seemingly straightforward as a new trial on damages raises
a host of questions that the appellate
opinion likely does not answer. Are the
parties limited to the damages evidence
presented at the first trial? Can they
present evidence that was the subject
of previous discovery but that was not
admitted at the first trial? Can they
develop new evidence in a round of
renewed discovery? Will the second
jury hear live testimony or readings of
transcripts of the first trial? Can the
experts from the first trial supplement
(and thus bolster) their opinions and
reports? Can the parties endorse new
experts? What will the court permit the
jury to hear regarding the first trial and
the matters not subject to the remand?
The answer to any one of these questions
could radically change the balance of
the new trial, and the mandate of the
appellate court is unlikely to answer
any of them. While the appellant’s
losses were concrete and ascertainable
before the appeal, a limited remand
upsets the chess pieces, and makes a
second trial much more troublesome
from a risk-management perspective.
Before the Appeal:
Advising Your Client
The first and most crucial step is to
advise the client regarding the range of
possible outcomes of an appeal, including the more difficult scenarios that may
arise as a result of a remand. It is absolutely essential that the client understand
the precise scope of the appellate court’s
review, and counsel must provide the
client with candid advice concerning
what the client can and cannot achieve
by appealing a judgment. If the client
wants a clean win - a dismissal, for
example, or summary judgment as a
matter of law - counsel should apprise
the client of the chances of obtaining
that relief, but also warn the client of
the dangers of other, potentially more
burdensome outcomes. Counsel must
prepare the client for the worst-case
scenario, whether that is an outright
loss or a new trial with potentially
advantageous pre- and mid-trial rulings
wiped away.
Counsel representing appellees
should give serious consideration to
whether to file a cross-appeal. As
discussed above, rulings on issues not
raised on appeal are typically conclusive.
If the appellee does not cross-appeal
and the appellant wins a remand, then,
any ruling that the appellee might have
questioned but did not cross-appeal
likely will be off-limits for reconsideration. This argues in favor of filing a
cross-appeal. On the other hand, a
cross-appeal complicates the overall
Anticipating, Preparing for, and appellate process, and an appellee
Managing Mandate Ruletypically would rather argue that the
Related Issues
district court did everything right. Once
the
appellee also urges error (albeit
The content of the opinion and the
precise shape of the mandate rest beyond error that did not affect the final
the control of litigants or their attorneys. judgment in the appellee’s favor), the
But experienced appellate counsel can purity - and, potentially, the force - of
this position is lost. The appellee should
take steps to, if not eliminate, then at
consider filing a conditional crossleast to hedge against the risks of a
disadvantageous mandate, and to advise appeal, which asks the appellate court
to address the cross-appeal issue, only
the client what to expect.
Trial Talk
Colorado Trial Lawyers Association
Brenton | APPELLATE PRACTICE & PROCEDURE
if it first decides to reverse based on
the appellant’s arguments. But even a
conditional cross-appeal gives rise to
some of the atmospheric concerns mentioned above. The strategic question
whether to file a cross-appeal is
weighty, and counsel should give it
close consideration in light of the
mandate rule.
issues its opinion has (possibly inadvertently) created, and asks the
court to amend the opinion to remedy
those problems before the case returns
to the district court. Petitions for
rehearing overall do not carry a high
probability of success, but appellate
courts typically are more receptive to
limited petitions such as those described here. If the mandate issue
During the Appeal:
stands to be particularly vexing for
Ask and You May Receive
both sides, counsel should consider
The parties’ best shot at shaping the filing a joint petition for limited recourt’s mandate comes, of course, during hearing, which would increase the
the briefing and argument of the appeal odds of the court acknowledging and
itself. The cardinal principle at this stage fixing the problem itself.
is candor: the appellant must be specific
On Remand: Briefing Concerning
about the relief requested, and both
Scope of the Mandate
parties should be forthright regarding
what should happen if the judgment is
If all else fails, and a mandate rule
reversed. To the extent counsel has pro- problem remains in the opinion when
actively identified potential problems on jurisdiction returns to the district court,
remand (for example, the permissible the diligent practitioner will quickly
scope of evidence at a new trial, or
ask the district court for an opportunity
whether the parties may endorse new to brief the proper scope of the proceedexperts), counsel should direct the
ings on remand, in light of the appellate
court’s attention to those issues and
mandate. Such a round of briefing will
suggest how they should be resolved. afford the district court the opportunity
Mandate rule problems arise most often to make informed, written findings
because the appellate court is unaware concerning its view of the scope of the
of a particular wrinkle in the case, and remand. The briefing also allows the
most appellate judges would welcome parties to be heard on their notions of
the opportunity to make their opinions the boundaries of the remaining proas clear and definitive as possible.
ceedings and to preserve their positions
in the event of a second appeal.
After the Appeal: Petition for
Limited Rehearing
Even where counsel has diligently
considered the potential remand issues
and briefed them to the court, new and
unanticipated complications still may
arise when the court issues its opinion.
It is best to address such issues quickly,
and the first opportunity is in a petition
for limited rehearing. Whereas a traditional petition for rehearing asks the
appellate court to change the substance
of its decision, a petition for limited
rehearing focused on the nature of the
mandate informs the court of whatever
Colorado Trial Lawyers Association
Conclusion:
Winning Isn’t Everything
Sometimes how an appellant wins
an appeal is every bit as important as
whether the appellant wins. Wellprepared appellate or trial counsel
operating with a complete understanding
of the mandate rule in all its complexity,
will be able to effectively advise the
client and chart a course to a lasting
victory on remand. ▲▲▲
Kyle W. Brenton is an associate at
Davis Graham & Stubbs, LLP, where he
Trial Talk
focuses on civil appellate litigation as
well as complex commercial litigation at
the trial court level.
Endnotes:
People v. Jones, 631 P.2d 1132, 1133
(Colo. 1981) (“[T]he trial court’s jurisdiction is restored when the appellate
court issues its mandate.”).
1
2
Procter & Gamble Co. v. Haugen, 317
F.3d 1121, 1126 (10th Cir. 2003).
3
See In re Sanford Fork & Tool Co., 160
U.S. 247, 255, 16 S. Ct. 291 (1895)
(“When a case has been decided by this
court on appeal, and remanded to the
circuit court, whatever was before this
court, and disposed of by its decree, is
considered as finally settled. The circuit
court is bound by the decree as the law
of the case, and must carry it into
execution according to the mandate. That
court cannot vary it, or examine it for
any other purpose than execution; or
give any other or further relief; or review
it, even for apparent error, upon any
matter decided on appeal; or intermeddle
with it, further than to settle so much as
has been remanded.”).
4
Hardesty v. Pino, 222 P.3d 336, 339
(Colo. App. 2009) (citations omitted).
5
Courts may deviate from the law of the
case when (1) the evidence changes substantially; (2) new evidence not previously
obtainable is presented; or (3) the decision
was clearly erroneous and would work
manifest injustice. Grigsby v. Barnhart,
294 F.3d 1215, 1219 n.4 (10th Cir. 2002).
18B CHARLES ALAN WRIGHT, ET AL.,
FEDERAL PRACTICE & PROCEDURE
§ 4478.3 (2d ed. 1986).
6
7
The district court may depart from the
mandate in “exceptional circumstances,
including (1) a dramatic change in controlling legal authority; (2) significant new
evidence that was not earlier obtainable
through due diligence but has since come
to light; or (3) if blatant error from the poor
decision would result in a serious injustice if uncorrected.” Grigsby, 294 F.3d at
1219 n.4 (quotation marks and alterations
omitted). Arguing for such a departure
April/May 2014
13
APPELLATE PRACTICE & PROCEDURE |Brenton
is not an advisable course of action, except in the most extreme circumstances.
8
Hardesty, 222 P.3d at 340 (quoting Super
Value Stores, Inc. v. Dist. Ct., 906 P.2d
72, 78-79 (Colo. 1995)).
9
FEDERAL PRACTICE & PROCEDURE supra
note 6 (“The reach of the mandate is
generally limited to matters actually
decided. A mere recital of matters
assumed for purposes of decision and
dicta are not part of the mandate.”).
10
See Standard Bank, PLC v. Runge, Inc.,
No. 12-1340, 2014 WL 702126, at *2-3
(10th Cir., Feb. 25, 2014) (after district
court held that statements in previous
appellate opinion were dicta, court of
appeals reversed, concluding that those
statements were, in fact, law of the case
and thus part of the previous mandate).
11
Wheeler v. John Deere Co., 935 F.2d
1090, 1096 (10th Cir. 1991).
12
Mason v. Texaco, Inc., 948 F.2d 1546,
1552 (10th Cir. 1991).
13
Though preservation of error is beyond
the scope of this article, practitioners
should be aware that in Colorado state
court, a legal ruling in a summary judgment order is not preserved for appeal on
its own; counsel must re-assert the legal
ground at trial in order to maintain the
viability of the issue for appeal. See
Feiger, Collision & Kilmer v. Jones, 926
P.2d 1244, 1247-51 (Colo. 1996). In the
Tenth Circuit such a ruling may be
preserved without further proceedings,
depending on whether the ruling was
purely a legal one. See Haberman v.
Hartford Ins. Group, 443 F.3d 1257,
1264 (10th Cir. 2006).
14
FEDERAL PRACTICE & PROCEDURE supra
note 6.
15
Id. at § 4478.6 (“[F]ailure to make an
argument on the initial appeal to the first
appellate court is likely to waive the argument so that it cannot be advanced on
remand from the higher appellate court.”).
16
Id. at § 4478.3.
17
See, e.g., James River Ins. Co. v. Rapid
Funding, LLC, 658 F.3d 1207 (10th Cir.
2011) (reversing and remanding for new
trial where district court erroneously
admitted lay opinion testimony related to
damages); Core-Mark Midcont., Inc. v.
Sonitrol Corp., 300 P.3d 963 (Colo. App.
2012) (reversing and remanding where
district court erroneously excluded expert
testimony relevant to damages theory).
18
Hicks v. Gates Rubber Co., 928 F.2d
966, 971 (10th Cir. 1991).
19
5 AM. JUR. 2d Appellate Review § 736
(1996).
20
5 C.J.S. Appeal and Error § 1167 (1993).
21
See Hardesty, 222 P.3d at 340.
22
Haugen, 317 F.3d at 1125.
23
See Unitherm Food Sys., Inc. v. SwiftEckrich, Inc., 546 U.S. 394, 407, 126 S.
Ct. 980 (2006) (Stevens, J., dissenting)
(“Murphy’s law applies to trial lawyers…”).
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14
April/May 2014
Trial Talk
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