Tuesday, November 5, 2019
The last few years I have been unable to attend one of our state-wide appellate conferences because I have been working on appeals. It is a nice problem to have, but it means I am often a little late to the trough of knowledge and have to catch up with my peers through online resources.
One of the presentations I recently watched was by two Supreme Court practitioners on "The Art and Science of Seeking Certiorari." In that presentation, Daniel Geyser and Carl Cecere discuss what the high court is looking for when it reviews petitions.
We all know that one of the best indicators of a successful petition for writ of certiorari is the presence of a split in the circuits. Geyser and Cecere help by pointing out that not all conflicts are created equal, and that some characteristics are more important to the Court than others.
Specifically, they argue that the best conflicts are:
- Fresh and timely, not stale;
- Deep in nature, not shallow;
- Squarely in conflict, not attenuated;
- Balanced in the courts involved on each side of the split, not lopsided;
- Real in the conflict, and not illusory; and,
- Expressly in conflict, and not just implied.
This does not mean that your conflict will not catch the Court's eye if it does not meet all of these characteristics. But it does mean that when you present a conflict, you should address the issues above when they are present so you can more clearly define the importance of the conflict for your court of discretionary review.
Geyser and Cecere give several examples of how advocates make the strength of their conflicts apparent. Some put this information in the issue presented, some in their headers so that the table of contents "speaks" to the issue, and some in their summary of the argument.
The main lesson learned is that you should highlight the importance of your conflict early and often, and not just drop a footnote to a string of cases that disagree with each other. Wake up the Court with the importance of your conflict early on, and they are more likely to pay attention to the substance of your argument later.
(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)