At Cockle Legal Briefs, we work with quite a few non-lawyers filing a petition for writ of certiorari in the U.S. Supreme Court. Occasionally our conversations with our pro se customers move beyond the necessary formatting and content requirements for a Supreme Court brief, and into more basic questions of legal writing. Over time, we have come up with some general legal writing tips. I have previously posted some tips, and here I offer another one, with more to come in later posts.
Petition For Writ: Injustice Isn’t Enough For A Grant
“I recognize that we do not often intervene only to correct a case-specific legal error.”
Bower v. Texas, 575 U. S. ____ (2015).
Justice Breyer’s comment, in his opinion dissenting from an order denying cert in a death penalty case, illustrates a commonly misunderstood element of the Court’s petition deliberations. In Bower, many observers agreed that the petitioner had suffered a clear injustice—including a remarkable admission of error by a lower court that had earlier decided against him. But it was the kind of legal error that was very specific to the particulars of Bower’s case, and importantly, it was not an error that could ever be repeated in another case.
For the majori
ty of justices, even with a man’s life in the balance, the mere fact of legal error in the court below was not enough for the Court to get involved. They needed to see a problem that might leak into other cases if left unaddressed. Texas executed Bower two months later.
Whether or not you agree with Justice Breyer that life-and-death questions should warrant an exception to the general rule, the underlying philosophy is not only sound, but necessary. In a nation of over 300 million people, no court could possibly operate to discover and correct all injustices. In order to satisfy its Constitutional obligations to the entire country, the U.S. Supreme Court will only grant a petition for writ if the case will have implications beyond the petitioner in front of it.
This reality can be challenging for non-lawyers. Their case is personal. And the results certainly feel personal. So a non-lawyer filing a petition for writ is inclined to write a brief that describes the lower court’s error as a personal harm, suffered by an individual. But a winning strategy requires the pro se filer to take a step back, and make an effort to demonstrate how the lower court’s mistake is not personal, but systematic, and likely to continue unless the U.S. Supreme Court intervenes.
On the other hand, the non-lawyer petitioner should not be afraid to describe how the lower courts have created a real hardship. A pro se filer’s only real advantage is the personal tie to the case. Making that human-to-human connection with the justices is very important. But you must convince them that granting the writ will prevent other people’s suffering, as well.
Petition For Writ: Try Not To Make It About The Lower Court Judge
Pro se filers should avoid the temptation of thinking that you can convince the Court to grant your petition for writ by showing how a lower court judge is unethical, corrupt, or stupid. First, the Supreme Court does not use petitions for writ of certiorari to punish bad judges; writs are used to correct interpretations of federal law and the U.S. Constitution. Second, while you can make an argument that a bad judge creates a systemic problem—by repeatedly making willful or careless misapplications of the law—that is not the kind of problem the Court has the power to resolve. Even if the Court ends up remanding your case back to the bad judge, with specific instructions to get it right, that order will do nothing to correct the judge in his later rulings.
While it is acceptable, even advisable, for non-lawyer petitioners to rely on their personal connection to the lower court’s actions, the brief should not make it about a personal conflict with the judge. Instead, make it about the judge’s practice of making wrong decisions.
You can find more great tips for writing a winning brief in our white paper, “How to Write a Winning Appellate Brief.”