Now that summer is here, our minds are on things like what to pack on our next trip, right? Maybe the last thing you want to think about right now is that approaching deadline to file your petition for certiorari. But just as you have to fit everything you need into your suitcase for your trip, you have to pack everything you need into your cert petition – your case’s “suitcase” for its trip to the Supreme Court.
The first thing you have to “pack” is a cover. The cover is the first thing people see, but this is no place to get flashy. The Court has a very specific look in mind for a petition’s cover. Supreme Court Rule 34 sets out what a cover must contain. To summarize, the cover must have the case caption, the nature of the proceeding, type of brief, and the full contact information for the counsel of record. If you are representing yourself pro se, then you put your name, address, and phone number on the cover. Attorneys are required to include their email address, in addition to the above.
When you flip the cover open, the first thing you see is the Question(s) Presented section. If there is a place for attention-grabbing, this is it. We have recently made entire blog posts on the topic of Questions Presented – here and here – so I won’t spend much time on the topic. But when it comes to formatting, remember that the Questions Presented must be the first page after the cover and no other brief sections may appear on the same page. Spend some time on your QP. Many commentators (including the Justices themselves) say it is the most important part of your brief – sort of like your cell-phone charger when packing for your trip.
Next, there’s the Table of Contents and Table of Authorities. Generally the Table of Contents will list and provide page references for all of the headings that appear in your brief. The Table of Authorities does the same for all of the cases, statutes, rules, etc. you reference in your brief. You might be surprised to learn that the Court does not make any specific requirements when it comes to legal citation style. Stick with the Blue Book: A Uniform System of Citation and be consistent in your citation methods and you will be fine.
Now that you have your cover and index packed, the actual sections of your brief come next. The first section is often titled “Opinions Below.” It does not have to be very long. Here, you are just providing the citations of the lower court decisions of your case. If they were unreported, you can just direct the reader to the page it appears on in your appendix.
The next section you need is the Statement of Jurisdiction. In this section, you tell the Court the date of the decision you are asking the Court to review, the date the lower court denied rehearing your case (if they did), and you tell the Court the statute which confers jurisdiction upon the Court.
Constitutional and Statutory Provisions come next. In this section, you must set out verbatim (word-for-word) the statute or section of the Constitution you believe the Court you are appealing from misapplied. This section is important because in order for the Court to review your case, they have to know the exact law that is at issue.
Next, you need to pack a Statement of the Case. The Statement of the Case sets out the facts of your case that are relevant to understanding your Questions Presented. If your case originated in the state court system, you must state when and how the federal law issues in your case were raised, and how the courts resolved those issues in your case. If your case originated in the federal courts, then you must state why the federal district court had jurisdiction to hear your case.
Now you are ready for your argument. Hopefully you have already captured your reader’s attention with your Questions Presented, and now they are ready to see why those questions should be resolved in your favor. Most importantly, you need to demonstrate to the Court that there is a good reason to grant your cert petition, i.e., that there is either a conflict between circuits; the lower court’s decision conflicts with Supreme Court precedent; or the case poses a question of federal law that is so important that the Supreme Court should pass upon it, even absent a conflict.
You wrap up your petition with a concise conclusion, usually just respectfully asking the Court to grant your petition. Attached to the petition is an appendix, which must include the decisions of the lower courts in your case. You can also attach other documents in your appendix that you think will help the Court decide your case.
Every case’s trip to the Supreme Court is a little different. Sometimes extra sections are required such as a list of parties or a corporate disclosure statement. The documents which are required for your appendix can also vary from case to case. At Cockle Legal Briefs, we are the experts when it comes to the Court’s intricate filing rules. Contact us for your next brief.