In many ways, opposing a petition for cert once you’ve been victorious at the Colorado Court of Appeals is the easier job. The odds are in your favor—90% of petitions are going to be denied. But because there is always a chance that the road to the next level of appellate review will be paved by your opponent’s cert petition, here are a few tips for opposing a cert petition at the Colorado Supreme Court.
Consider Filing a Response.
So many lawyers simply do not take advantage of the opportunity to make the Justices (and their law clerks’) lives easier by laying out the reasons why cert should be denied. Technically, the respondent at the Supreme Court level does not have to file anything to oppose cert. But failing to do so can sometimes be a mistake. Remember that the typical procedure at the Colorado Supreme Court is for cert memos to be prepared by a Justice’s law clerk. By not filing a response, you are not only making the clerk’s life harder, but you are also potentially missing out on a chance to persuade the Court. Though it is important to consider the cost to the client, unless the petition is essentially frivolous, it is relatively inexpensive to oppose a petition and may be important.
Highlight Any Facts the Petitioner Excluded, if Necessary.
Most cert petitions will contain a brief recitation of the facts of the case to put the opinion in perspective. If the Court of Appeals’ opinion does not do a good job outlining the facts that matter to the cert petition, consider clarifying briefly. If the Court of Appeals’ facts are helpful, then point the Supreme Court to those as a good perspective of the case. And, if the petition mischaracterizes any facts, be sure to set the record straight.
Illuminate the Reasons why Granting Cert in the Case would be a Waste.
Just like your opponent is seeking to convince the Supreme Court that this case meets the standard for a grant, you are trying to do the opposite. Go through the questions in Part 1 of this series and highlight them for the Court. For example, if your case involves an unpublished opinion out of the Court of Appeals, note that lower court’s opinion has no precedential value and is unlikely to affect Colorado law in any significant way.
Consider whether there is something else about your case that makes it ill-suited for a grant. For example, is there a jurisdictional issue looming that may derail the case? Were all the arguments preserved or is plain error review at issue? If the case is not as straight-forward as the petitioner claims, shed light on these issues.
Briefly Touch on Why the Merits are Correct.
Certainly, the Court takes cases and affirms the judgment of the lower court. But the petitioner is arguing that the case should be taken because the lower court got it wrong. Briefly address why the Court of Appeals got it right. Usually this is a fairly easy task, because the Court of Appeals issued an opinion explaining its reasoning (and most likely accepted some of your arguments). Use the opportunity to bolster the opinion’s rationale with additional case law where possible, drawing from work done in the briefing before that court. Approach this task by thinking about what legal authority and argument a law clerk might want to include in a cert memo to justify denying cert.
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