Legal Definitions - recall of mandate

The term recall of mandate refers to an extraordinary and rarely used power of an appellate court to withdraw or change a previous order it sent to a lower trial court. This action is typically taken only in very specific and serious circumstances, and usually occurs after the standard deadlines for parties to request a rehearing or reconsideration have already passed.

Appellate courts are generally very reluctant to recall a mandate because the legal system places a high value on the finality of judgment. This principle means that once a court has made a decision and issued its final order, there should be a definitive end to the litigation, allowing the parties and the lower court to move forward. Recalling a mandate disrupts this finality, potentially causing confusion, delays, and undermining confidence in judicial decisions.

Despite this strong reluctance, an appellate court may exercise its power to recall a mandate in limited situations, such as:

• To correct a significant clerical error in its original order.
• To address a situation where fraud was committed against the court during the appeal process itself.
• To prevent a grave injustice that would otherwise occur if the original order were to stand.

Here are some examples illustrating when an appellate court might recall a mandate:

• Example 1: Correcting a Clerical Error

  An appellate court rules in favor of a construction company, ordering a client to pay $500,000 for services rendered. However, when the court's official order (the mandate) is drafted and sent to the trial court, a typographical error mistakenly states the amount as $50,000. This error is discovered after the deadline for either party to request a rehearing has passed, and the trial court is preparing to enforce the incorrect $50,000 judgment. In this situation, the appellate court could issue a recall of mandate to withdraw the erroneous order and replace it with one accurately reflecting the $500,000 judgment. This action prevents a clear and significant clerical mistake from leading to an unjust financial outcome.

• Example 2: Addressing Fraud on the Court

  During an appeal concerning a complex intellectual property dispute, one party submits what appears to be a critical piece of evidence – a signed licensing agreement – that heavily influences the appellate court's decision. Months after the appeal is finalized and the mandate sent to the trial court, it is definitively proven that the licensing agreement was a forgery, deliberately created and submitted by the party to mislead the court. This constitutes a "fraud on the court." Here, the appellate court would likely recall its mandate. The original decision was based on fraudulent evidence, and recalling the mandate allows the court to reconsider the appeal without the tainted information, thereby upholding the integrity of the judicial process.

• Example 3: Preventing a Grave Injustice

  An appellate court upholds a lower court's decision to deny a parent custody of their child, based largely on expert psychological testimony presented during the appeal. After the mandate is issued and the case is back in the trial court for final implementation, a new, universally accepted professional standard for evaluating such psychological testimony emerges, which fundamentally discredits the methodology used by the expert in the original case. This new standard was not available during the appeal process. The appellate court might consider a recall of mandate in this scenario to prevent a "grave injustice." While not a clerical error or direct fraud, the fundamental basis of its decision has been undermined by new, authoritative information that was unavailable during the appeal, making the original judgment potentially unsound and leading to an unjust outcome for the parent.