Respondents are not required to file a brief in opposition
[T]he brief in opposition should address any perceived misstatement of fact or law in the petition that bears on what issues properly would be before the Court if certiorari were granted. Counsel are admonished that they have an obligation to the Court to point out in the brief in opposition, and not later, any perceived misstatement made in the petition. Any objection to consideration of a question presented based on what occurred in the proceedings below, if the objection does not go to jurisdiction, may be deemed waived unless called to the Court’s attention in the brief in opposition. Rule 15.2. [Emphasis added.]
La Bocca della Verita (The Mouth of Truth), Rome, Italy. According to legend, if you tell a lie with your hand inside the mouth, you lose the hand.
Of course, most brief in opposition filers do not need a nudge from the Rules to jump all over opposing counsel’s misstatements. That’s a no-brainer, tactically. And ethical attorneys further understand that their own duty of candor requires them to note these misstatements for the Court.
But Rule 15.2 goes beyond simply reminding counsel of her strategic opportunities and professional responsibilities. The Rule also raises the specter that she might inadvertently waive important rhetorical elements of her client’s argument if she should overlook a misstatement from the petition.
One can imagine how, in many cases, the Rule 15.2 obligation can present a special challenge for the brief in opposition filer.
Cases with messy facts and procedural histories are the very cases that tend to raise Rule 15.2 concerns for the brief in opposition. A convoluted case can lead an honest petitioner to believe that his controversial assertions are not misstatements, but reasonable alternate interpretations; a dishonest petitioner might feel that a jumbled record gives him cover to play it fast and loose.
Respondent’s counsel must accomplish two separate tasks within her 9,000 word limit. She must offer effective counter points to the petitioner’s legal argument, and she must carefully evaluate each of the petitioner’s statements of fact and law to make absolutely sure she has preserved her objections to every possible misstatement in the petition. A complex record below will not only offer more opportunities for misstatements in the petition, but it will also create more problems for the brief in opposition filer who must carefully review the numerous and sometimes subtle elements of the record to make sure she has not overlooked important Rule 15.2 advisements.
Of course, the brief in opposition filer who contacts Cockle Legal Briefs does gain back a significant advantage. While she is juggling her counterarguments and counterstatements, she can rest in the assurance that her brief will be both rule-compliant, and beautifully printed. We will make sure the document will satisfy both the Court and her client, and she can focus on making sure her argument and Rule 15.2 advisements are compelling and complete.