Supreme Court review
Everyone has the right to appeal from the trial court to an appellate court. So if you are in state court, and you have an appealable order or judgment in the Superior Court (keeping in mind that not everything is appealable), you go to the California Court of Appeal. And if you are in federal District Court, you go to the U.S. Court of Appeals. In neither system do you have to persuade anyone to “take” your case as a precursor to having it decided.
In both the state and federal systems, there is one further layer of review above that — the Supreme Court. In the state system, it’s the California Supreme Court, which sits in San Francisco. In the federal system, it’s the United States Supreme Court in Washington DC.
But there’s a very fundamental difference when it comes to Supreme Court review. This is that, with very narrow exceptions, both the state and federal Supreme Courts pick and choose which cases they take. And they turn away the vast majority that are presented to them, with one-sentence orders denying the petitions without explanation.
So Supreme Court advocacy in both the state and federal systems involves a two-step process. The first — and tougher — step is a petition to try to persuade the court to take the case. Then, if you strike gold, the next step involves arguing the case on the merits.
Many lawyers fail to grasp the difference in approaches between the first and second steps in the review process. It is a huge mistake to simply regurgitate the brief from the initial appeal when you seek Supreme Court review. Rather, the skilled practitioner concentrates on the criteria for review.
Neither the state nor federal Supreme Courts are in the business of correcting error for its own sake. The mere fact that a lower court may have made an incorrect ruling is not a compelling argument for review. The “Supremes” simply don’t have the resources to be the final quality control for everything that takes place in courts below them. That is not their mission.
Rather, the state and federal Supreme Courts are in the business of resolving unsettled and important issues of law, especially those with ramifications that extend far beyond the immediate interests of the parties to a particular case.
So the most effective petition for review is often one that steps back (at least, in part) from the issue of who is “right” and who is “wrong,” but focuses on why — regardless of the eventual outcome — a case presents an issue that needs to be resolved.
Few cases really do satisfy the criteria, which is why most petitions are probably exercises in futility. However, you start ahead of the game if the case was a “published” decision at the lower appellate level. This means that it counts as a precedent. Even better is a published case with a dissenting opinion from one of the judges who decided it. Another big plus is if you can show that there is inconsistency between lower appellate courts on the same type of question, so that Supreme Court review is needed to resolve a split in authority and ensure uniformity of the law.
Conversely, one of the worst things you can do in petitioning for review is to argue — as many do — along the lines that “the lower court misapplied settled law and is obviously wrong.” If the law is so settled, and if the answers are so obvious, then Supreme Court review is hardly necessary.
Another mistake is to argue the full laundry list of issues that may have been argued below. The higher up you go in the appellate system, the more selective you should be in picking issues.
There can also be tricky decisions when opposing petitions for review. Sometimes, parties choose not to file oppositions, lest some respectability be conferred by a response to what is obviously a hopeless attempt. Usually, though, a brief response is appropriate. Just as an effective petition “talks up” the importance of a case, so an effective opposition presents it as “boring and routine.” In addition, it can be useful to argue why, even if an issue might at some point be suitable for review, this particular case is not a good “vehicle” because of something that clouds the issue or some other quirk or messiness in the factual or procedural background.
This summary only scratches at the surface of the challenges of Supreme Court advocacy. As with other areas, it makes sense to engage an appellate specialist to handle this type of work.
John Derrick is available to handle petitions for review — as well as oppositions — in cases that he did not handle at the lower appellate level as well as in cases that he did. Keep in mind that the filing deadlines are tight. Typically, in state court, the petition for review has to be filed within 40 days of the issuance a Court of Appeal opinion. So time is of the essence.
In both the state and federal systems, there is one further layer of review above that — the Supreme Court. In the state system, it’s the California Supreme Court, which sits in San Francisco. In the federal system, it’s the United States Supreme Court in Washington DC.
But there’s a very fundamental difference when it comes to Supreme Court review. This is that, with very narrow exceptions, both the state and federal Supreme Courts pick and choose which cases they take. And they turn away the vast majority that are presented to them, with one-sentence orders denying the petitions without explanation.
So Supreme Court advocacy in both the state and federal systems involves a two-step process. The first — and tougher — step is a petition to try to persuade the court to take the case. Then, if you strike gold, the next step involves arguing the case on the merits.
Many lawyers fail to grasp the difference in approaches between the first and second steps in the review process. It is a huge mistake to simply regurgitate the brief from the initial appeal when you seek Supreme Court review. Rather, the skilled practitioner concentrates on the criteria for review.
Neither the state nor federal Supreme Courts are in the business of correcting error for its own sake. The mere fact that a lower court may have made an incorrect ruling is not a compelling argument for review. The “Supremes” simply don’t have the resources to be the final quality control for everything that takes place in courts below them. That is not their mission.
Rather, the state and federal Supreme Courts are in the business of resolving unsettled and important issues of law, especially those with ramifications that extend far beyond the immediate interests of the parties to a particular case.
So the most effective petition for review is often one that steps back (at least, in part) from the issue of who is “right” and who is “wrong,” but focuses on why — regardless of the eventual outcome — a case presents an issue that needs to be resolved.
Few cases really do satisfy the criteria, which is why most petitions are probably exercises in futility. However, you start ahead of the game if the case was a “published” decision at the lower appellate level. This means that it counts as a precedent. Even better is a published case with a dissenting opinion from one of the judges who decided it. Another big plus is if you can show that there is inconsistency between lower appellate courts on the same type of question, so that Supreme Court review is needed to resolve a split in authority and ensure uniformity of the law.
Conversely, one of the worst things you can do in petitioning for review is to argue — as many do — along the lines that “the lower court misapplied settled law and is obviously wrong.” If the law is so settled, and if the answers are so obvious, then Supreme Court review is hardly necessary.
Another mistake is to argue the full laundry list of issues that may have been argued below. The higher up you go in the appellate system, the more selective you should be in picking issues.
There can also be tricky decisions when opposing petitions for review. Sometimes, parties choose not to file oppositions, lest some respectability be conferred by a response to what is obviously a hopeless attempt. Usually, though, a brief response is appropriate. Just as an effective petition “talks up” the importance of a case, so an effective opposition presents it as “boring and routine.” In addition, it can be useful to argue why, even if an issue might at some point be suitable for review, this particular case is not a good “vehicle” because of something that clouds the issue or some other quirk or messiness in the factual or procedural background.
This summary only scratches at the surface of the challenges of Supreme Court advocacy. As with other areas, it makes sense to engage an appellate specialist to handle this type of work.
John Derrick is available to handle petitions for review — as well as oppositions — in cases that he did not handle at the lower appellate level as well as in cases that he did. Keep in mind that the filing deadlines are tight. Typically, in state court, the petition for review has to be filed within 40 days of the issuance a Court of Appeal opinion. So time is of the essence.