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Catch the High Court's eye with a compelling petition.

A lawyer seeking U.S. Supreme Court review of a decision faces long odds. The Court hears only about 75 cases a year, granting less than 2 percent of the petitions for review filed.

It is obligated to review decisions in only two types of cases: suits between state governments (1) and disputes decided by three-judge federal district courts. (2) In all other cases, the Court has complete discretion regarding whether to grant or deny review.

Most cases come before the Court on a petition for a writ of certiorari. (3) If four justices vote to grant certiorari, the Court hears the matter.

Supreme Court Rule 10 describes the criteria that the Court uses in evaluating petitions. It emphasizes that review is most likely when the case involves a conflict among the federal circuits or the state high courts, or a conflict between a federal court of appeals and a state high court. Review is also likely to be granted when a state court or federal appeals court "has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court." (4) The Court does not grant certiorari simply to correct erroneous decisions.

A petition for certiorari is a unique form of legal advocacy because it is not intended to win the case. The goal is not to convince the Supreme Court that the lower court's holding was wrong. There will be ample opportunity for that in the briefs and oral argument if review is granted. Rather, a petition should focus on persuading the Court that the case is worthy of its consideration. In other words, a petition should answer one question: Why is it important that the Supreme Court take this case, especially in light of the relatively few cases that it hears every year?

At the same time, petitions for certiorari, like all persuasive writing, must be written with an eve to their initial audience: law clerks, who are reading many petitions relatively quickly and may not be familiar with the particular area of the law. On the current Court, every petition is likely to be read by two law clerks. Eight of the justices, all but Justice John Paul Stevens, participate in a "cert. pool": a single clerk reviews each petition and writes a memo summarizing the case and its issues and making a recommendation to the eight justices. Stevens has one of his own clerks review every petition.

In virtually all cases, petitions must be filed within 90 days after the lower court enters judgment below, denies review, or refuses a request for a rehearing. (5) The clock starts ticking on the date the lower court takes action, not when a mandate is issued. (6)

The 90-day period can be extended "for good cause" for up to 60 days. (7) But extensions are "not favored," and except in the most extraordinary and compelling circumstances, a request for one must be filed at least 10 days before the petition is due. (8)

Tips for success

When filing a petition, it helps to follow some basic precepts:

Show that the ease presents an important issue of federal law. It is well established that state courts get the last word in disputes involving state law. (9) The Supreme Court simply will not take cases that present purely state-law questions, no matter how important they may be for the development of law or for society. The Court sees its role entirely as clarifying the meaning of federal law--the Constitution, laws, and treaties of the United States.

Therefore, a petition writer's key tasks are convincing the Court that the case presents a significant question of federal law and that this case, rather than others that may present the same issue, is the best one to resolve the issue.

Commentators have recognized that as the Court's docket has shrunk, the justices have been more inclined to limit review to questions they regard as important nationally. (10) But even if the justices believe a petition raises an issue of appropriate national importance, they will vote to grant certiorari only if they are also convinced that the case is the right one to decide the issue it presents.

Showing that a question of federal law is important can be achieved many ways. For example, the petition could point out that the issue affects a large number of people or cases, or that the value of the interests involved is significant. To demonstrate that a case is the right one, the petition might argue, for example, that the facts are uniquely representative of cases involving similar issues or that the record supporting the lower courts' decision is more complete in this case than in others.

Highlight any conflict among the federal circuits or states. The chance of winning certiorari is best if the lower court, federal or state, has invalidated the constitutionally, of a federal statute. Absent that, the Supreme Court's preeminent criterion in deciding whether to hear a case is whether there is a split among the circuits or states on a question of federal law. No other court in the country can resolve these conflicts, and the Court sees it as essential that it step in to do so. By one estimate, about 70 percent of the cases in which certiorari is granted present a conflict among either the federal courts of appeals or the state courts of last resort. (11)

Write a strong "question presented." The first page of a petition, the question presented, is the first thing that the reviewing law clerk will learn about the case, and it can greatly influence his or her opinion on whether it is worthy of review.

This opening salvo should, of course, convey that the case turns on an important and unresolved issue of federal law. Avoid using language that makes the case seem dependent on the case's specific facts. Phrase the question in a way that makes it seem interesting and important. This is not an easy task--a lawyer should expect to make dozens of attempts before achieving a final version that presents a question worthy of Supreme Court review.

Focus on questions of law, not fact. Because the Supreme Court does not take cases to correct the errors of the lower courts, a case with unique facts that poses a relatively rare legal issue is highly unlikely to gain Supreme Court review. The Court has declared: "We do not grant a certiorari to review evidence and discuss specific facts." (12) In fact, Supreme Court Rule 10 is explicit that certiorari is "rarely granted" when the petition asserts "erroneous factual findings."

The other side will do all it can in the written opposition to your petition to make the case seem atypical and highly dependent on unique facts. The petition must show that the case turns on questions of law.

Encourage amicus briefs. Studies have shown that when parties file amicus briefs favoring certiorari, the chances that the Court will take the case increase substantially. (13) An amicus brief might be useful if it offers a perspective different from that in the petition for review or in the opposition to it. An example might be a brief written on an especially technical topic--like a complex question of patent law--by a group of experts in the field, Amicus briefs also can help persuade the Court that the case raises issues that are important to a broad segment of society, and thus are worthy of Supreme Court review.

Supreme Court Rule 37.1 makes clear, however, that amicus briefs should be filed at this stage only if they add something not already presented in the petition itself. The rule states that "an amicus curiae brief that brings to the attention of the Court relevant matters not already brought to [its] attention by the parties may be of considerable help to the Court. An amicus brief that does not serve this purpose burdens the Court, and its filing is not favored."

When writing a petition for certiorari, it is enormously tempting to focus on convincing the justices that the lower court was simply wrong in deciding the way it did. But this misconceives the goal of the Court's certiorari jurisdiction and of the petition itself.

The best petitions are those that focus on explaining why the Court needs to take the case to resolve important issues of federal law that are dividing the lower courts. Even then, there is no guarantee that the Court will take the case, but a carefully crafted petition greatly increases the odds of success.

Notes

(1.) 28 U.S.C. [section] 1251 (a) (2000).

(2.) Id. [section] 1253.

(3.) Id. [subsection] 1541 (1), 1257. Cases can also come to the Court--although very few do--through certification by federal courts of appeals. See id. [section] 1254(2).

(4.) S. Ct. R.10.

(5.) 28 U.S.C. [section] 2101 (c); S. Ct. R. 13.1.

(6.) S. Ct. R. 13.3.

(7.) 28U.S.C.[section]2101(c);S. Ct.R. 13.1

(8.) S. Ct. R. 13.5 & 30.2.

(9.) See Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875).

(10.) See, e.g., Stephen M. Shapiro, Certiorari Practice: The Supreme Court's Shrinking Docket, 24 LITIG. 25 (1998).

(11.) ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 225 (8th ed. 2002).

(12.) United States v. Johnson, 268 U.S. 220, 227 (1925).

(13.) See H.W. PERRY JR., DECIDING TO DECIDE 137 (1991).

ERWIN CHEMERINSKY, Alston & Bird Professor of Law at Duke University, argued two cases--Van Orden v. Perry and Tory v. Cochran--before the Supreme Court in March, on behalf of the petitioners. DORIANE LAMBELET COLEMAN is a professor at Duke University School of Law and recently taught a seminar on the certiorari process.
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Author:Coleman, Doriane Lambelet
Publication:Trial
Date:Apr 1, 2005
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