Unless you have a case where the Court has already granted cert on an identical issue or there is the rare split among divisions, your petition will most likely rely on the ground that the issue is really important and that the Court has not yet weighed in on it. How can you demonstrate this persuasively? Here are some suggestions for how to make your cert petition stand out from the pile.
Hit All the High Points.
First and last, be sure to follow the proper format for a cert petition in C.A.R. 53. Make sure all the required elements are present. While the Court of Appeals is more likely to strike a brief for non-compliance with procedural rules, you generally have a right to review at the Court of Appeals. Not so at the Supreme Court. There, the Court can deny cert and it doesn’t have to give a rationale. Don’t tempt fate by failing to follow the rules.
Remember your Audience.
The Justices, of course, are ultimately the ones whom you have to convince. At the Colorado Supreme Court, all the Justices, unless recused, vote on whether to grant or deny a petition for certiorari. But the Justices’ law clerks are an audience you don’t want to forget. When a petition for certiorari is assigned to a particular Justice, the Justice will typically assign one of his or her law clerks to prepare a memo summarizing the petition and making a recommendation on whether to grant or deny the petition.1 This ultimately gets distributed to the rest of the Court. For the most part, then, a cert petition is only as good as the cert memo it helps produce. Think about how your petition will help the lawyer in the Justice’s chambers who has to draft such a memo. Make the clerk’s life easier by practicing good lawyering:
- Highlight the facts that matter to the issue;
- Focus the issues on the most important points and don’t spend time on the peripherals;
- Don’t mischaracterize authority;
- Use pin cites to direct the reader to the exact spot in the case for the law on which you are relying;
- Don’t disparage the lower court or the other side—be professional;
- Clearly explain why the Supreme Court needs to weigh in on this case in particular.
Craft a good issue statement, but focus more on the importance of the case. Many resources on petitioning for certiorari emphasize that crafting the perfect statement of the issues is key to obtaining success. While it is important to spend some time thinking about which one or two issues should be featured and focus the petition accordingly, the exact wording of the issues is not as important as it may be in other appellate contexts. The Court has, in recent years, been reframing the issue statement to better state what the Court itself perceives as the cert-worthy issue in the case. It is likely then, that the Court cares less about the actual wording the petitioner assigns to the issue statement and more about why granting cert is necessary. If time is limited, don’t agonize over the phrasing of the question presented; instead, focus energy on explaining why those issues are cert-worthy.
Don’t Treat the Cert Petition like your Court of Appeals Brief.
While focusing on error-correction was likely a good strategy at the Court of Appeals, it is less likely to be successful at the Supreme Court. This is because the Court rarely takes cases simply to perform an error-correcting function. Instead of focusing on the fact that the lower court should have come out the other way, give the Court a better reason for why the case is important and is worthy of its time. You can go through Part One of this series for some ideas on what might make a persuasive cert petition and highlight those that are applicable to your case. Or better yet, explain why the case should be granted despite the absence of some of the factors. For example, if the case out of the Court of Appeals is unpublished, note this fact, but emphasize that it presents a very important issue with the perfect set of facts that tees it up for resolution by the Court.
But Do Clearly Explain Why the Lower Court Got it Wrong.
While a cert petition shouldn’t read like an opening brief, it is important to clearly explain why the lower court made an error on the law. The Colorado Supreme Court is not the U.S. Supreme Court. The Justices may take a case if they think the Court of Appeals just simply went out on a limb with the case law. Indeed, such a ground is specifically recognized in C.A.R. 49. So always clearly explain in the cert petition why the Court of Appeals interpreted the law incorrectly. Use citations to authoritatively and concisely present the argument.
1For more detailed information about the Court’s protocols, see this helpful article: https://www.courts.state.co.us/Courts/Supreme_Court/Protocols.cfm.
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More articles in this series: Part 1
- Appellate Fun While You Wait for Next Month’s Telios Tip
- After Sanctions Result in Dismissal, Tenth Circuit Gives Party a Second Chance
- But They Never Made that Argument! The Tenth Circuit Examines Grounds for Reversing a Sua Sponte Grant of Summary Judgment
- Colorado Rules Roundup: New Rules and Changes on the Horizon
- Frivolous Appeals, Part Two: How to Hold Your Opponent Accountable For a Frivolous Appeal (and Avoid One Yourself)