How To Get Your Cert Petition Granted

By Erin Coe

Law360, New York (September 22, 2009) -- The biggest mistake lawyers make when writing up a petition for a writ of certiorari is thinking of it as just another appeal, experts say.

Appellate attorneys say that many bids for cert spend way too much time railing against why the lower court arrived at the wrong conclusion and not enough time explaining why the case deserves to be taken up by the highest court in the U.S.

While about two-thirds of cases that go before the U.S. Supreme Court do end up getting reversed at least in part, the high court has said repeatedly its role is not to correct the errors of lower courts, but to resolve conflicts among lower courts and important issues of federal law.

Law clerks are the first in line to review the big stack of bids for cert, and a petition that grabs their attention stands a better chance of getting granted.

“You need to do everything you can to make that petition jump out from the stack,” said E. Joshua Rosenkranz, head of Orrick Herrington & Sutcliffe LLP’s Supreme Court and appellate litigation practice.

The following are some strategies for putting together a convincing petition for cert:

Show That Circuit Split

Evan M. Tager, a partner of Mayer Brown LLP’s appellate team, recalled being taken aback by a cert petition that highlighted the fact that the case at issue was one of “first impression.”

“That is about as opposite a point as you want to make in a cert petition. A cert petition should persuade the Supreme Court that an issue has percolated and needs to be resolved once and for all. It shouldn’t make it sound like the issue needs to develop in the lower courts,” he said.

A cert petition should focus on any disagreement over a federal issue between federal courts of appeal or state courts of last resort, especially if the issue involves a deep split between many courts and the dispute is one that comes up often.

“Cert petitions that can point to two courts of appeals resolving a question of law in diametrically opposed ways are the easiest to write and are the most likely to be granted,” said Matthew D. McGill, a partner in Gibson Dunn & Crutcher LLP’s appellate group.

Such a direct split helped Gibson Dunn client Allison Engine Co. Inc. get its cert petition granted in a case over when alleged fraudulent activity subjects an individual to liability under the False Claims Act.

The dispute centered on whether a section of the FCA required a false record or statement to be presented to the government.

Some courts, such as the D.C. Circuit, found that a presentment requirement existed.

But other courts — including the Sixth Circuit, which ruled on the Allison Engine matter — concluded that the FCA section did not include a presentment requirement, and that a false statement made to a contractor could be tried even if there was no proof that the contractor presented the false statement to the government as long as the government paid the contractor’s claim.

Although the Supreme Court did not agree completely with the Sixth Circuit’s ruling, it held in June 2008 that the FCA section did not include a presentment requirement. It interpreted the FCA to include an intent requirement to distinguish between misleading the government and misleading an entity other than the government.

If a lower court's opinion does not expressly acknowledge a conflict, a case may not be ripe enough to be presented to the Supreme Court.

Tager said one of his clients wanted him to appeal a case involving individuals who scoped out various hotels and filed claims that they were not adequately accessible to the disabled after the Ninth Circuit determined they lacked standing, but he advised against the appeal because the court did not articulate a clear federal issue.

“My reading of the opinion was that we could not tease out a division among the courts because the opinion was too fact-based and case-specific,” he said. “They hired someone else, but the cert petition was denied.”

Underscore the Importance of the Case

A cert petition should also demonstrate that the stakes are high by showing a case involves an enormous amount of money, is likely to affect multiple individuals or industries beyond the parties in suit, or may have a significant impact on a number of cases in the future, experts say.

“The Supreme Court does a cost-benefit analysis on whether to use its limited ability to hear cases to grant cert on a particular case and whether it is worth the investment of time and effort to provide guidance for future cases,” said Gregory A. Castanias, head of Jones Day’s Federal Circuit practice. “The petition should show the importance of an issue on a national basis and demonstrate that resolving the important issue should be done by the Supreme Court now.”

Because patent disputes go before the Federal Circuit and do not involve circuit splits, petitions in these cases need to underscore a case’s importance and grab the law clerk’s attention from the very first sentence.

In his cert petition appealing a case between Merck KGaA and Integra Lifesciences Holdings Corp., Rosenkranz said his introduction pointed out that the Federal Circuit’s decision, which barred pharmaceutical companies from doing research using a patented drug until the patent term has expired, could have a devastating impact not just on his client, Merck, but on patients.

He began his introduction with the following: “Cancer. Rheumatoid arthritis. AIDS. Heart disease. Alzheimer’s. Multiple sclerosis. ... Deadly diseases, painful disorders, heart-wrenching conditions that afflict millions of people. All of them no doubt find themselves hoping against hope that someone, somewhere will discover a drug that could cure them or relieve their suffering — and get it to them soon. This case is about how quickly many of those prayers will be answered. The stakes are measurable in millions of lives.”

While Rosenkranz cannot be sure whether his opening prompted the Supreme Court to grant cert in the case and find in favor of Merck 9-0, the drama of that introduction certainly attracted attention and created a sense of urgency.

Rosenkranz also worked on a cert petition for Kentucky Retirement Systems, challenging the Sixth Circuit’s decision in favor of the U.S. Equal Employment Opportunity Commission that the company’s retirement plan ran afoul of the Age Discrimination in Employment Act.

He said the petition noted that the ruling could affect the legality of thousands of public benefit programs and focused on how the outcome was intuitively wrong.

The Supreme Court in June 2008 reversed the lower court’s decision, holding that a retirement plan that uses age as a factor in determining benefits does not necessarily violate the ADEA.

Be Subtle in Pointing Out the Lower Court Is Wrong

Part of the craft in drafting a convincing cert petition is showing the Supreme Court that the case was wrongly decided without coming out directly and saying so, according to McGill.

“A petition should be drafted in a way that makes it clear to the reader that the decision below rested on fairly attenuated reasoning. If a petition can achieve this without saying that the Supreme Court should grant review because the court of appeals got it wrong, it will add to the value of the petition,” he said.

If a petition spends too much time showing how the lower court made a mistake, the law clerk could view the case less as a good vehicle for resolving a conflict or an important question of law and more as just another appeal looking to correct a lower court’s error, making a denial of one’s cert petition more likely, McGill said.

“Lawyers walk a fine line in a cert petition in trying to demonstrate a rational argument on both sides of the merits point,” Rosenkranz said. “As lawyers, we feel the need to advance our client’s position on the merits at every possible turn. Lawyers don’t want to acknowledge that the other side may have a rational argument, but in a really good cert petition, you have to.”

Keep It Simple and Brief

A cert petition should avoid presenting too many questions for the Supreme Court to resolve.

“It’s extremely rare that a case with four or five questions gets granted because the Supreme Court prefers to take cases that are clean vehicles for resolution of the law,” McGill said.

When going into the background of a dispute, the petition should highlight the necessary details and steer clear of getting bogged down with all of the facts.

“The Supreme Court is averse to taking a factually messy case,” said Jeffrey W. Sarles, co-head of Mayer Brown’s Supreme Court and appellate group. “If it is very difficult to get a handle on a case, the law clerk may give up and recommend that the Supreme Court should not take the case because it exudes factual complexity.”

Some of the most successful cert petitions are those that are shorter than the limit of 9,000 words, which is about 30 to 35 pages, according to Castanias.

He said he obtained cert in a federal jurisdiction case, Sinochem International Co. Ltd. v. Malaysian International Shipping Corp., with a petition about three-quarters of the maximum length, and gained cert in a drug trafficking case, Muscarello v. United States, based on a petition that was only 14 pages long.

“Cases that are appropriate for Supreme Court review usually do not take a lot of explanation. The ones that are cert-worthy really do stand out because of their straightforwardness in showing a conflict and the importance of the issue,” Castanias said.

Get a Little Help from Your Friends

Friend of the court briefs can also help a petition break away from the pack and increase a petition’s chances of winning a cert grant by the Supreme Court. Not only can amicus briefs bolster a client’s position, they can also make up for a case that does not have a clear circuit split by underscoring a dispute’s broader significance.

McGill’s firm, Gibson Dunn, successfully represented Harman Mining Co. in a case before the Supreme Court alleging judicial bias by a state high court in its ruling that reversed a $50 million damages verdict against A.T. Massey Coal Co. Inc.

Harman argued that the West Virginia Supreme Court did not give it a fair shake in its case alleging Massey engaged in fraudulent misrepresentation because Chief Justice Brent D. Benjamin of the state Supreme Court refused to recuse himself from the case even though Massey’s CEO contributed $3 million to Benjamin’s 2004 campaign for chief justice.

The case lacked a circuit split, but it involved a pressing issue about the integrity of the judiciary.

In order to boost Harman’s position, Gibson Dunn collected a wide variety of amicus briefs, including from the American Bar Association, Public Citizen and the Committee for Economic Development, in support of its petition for cert and its case on the merits, McGill said.

“In cases where you are arguing that a question being raised is of extraordinary importance, it is very helpful to have amicus briefs supporting your petition and demonstrating to the court that people other than the petitioner believe the case involves an important issue,” he said.

Tager of Mayer Brown, which represented Massey in the case, said the petitioner’s collection of amicus briefs and efforts to inform the media about the case made up for a conflict weakness by hammering on the significance of the issue.

“The petitioner had a fairly aggressive public relations campaign and got several newspapers to write on the case, which raised its profile and caught the imagination of the media. These efforts helped the case get granted,” he said.

In June, the Supreme Court agreed with Harman, reversing the lower court’s decision and ordering Benjamin to recuse himself from the appeal.

Getting a trade association, the solicitor general or certain states to support a cert petition can go a long way to boost one’s position. Tager said pulling in a brief from an atypical party can also catch the Supreme Court’s eye.

“In some cases where we represent a business party, we might try to get support from a plaintiffs group or from a civil rights group, which normally wouldn’t be expected to be on the side of business,” Tager said. “The holy grail is getting a brief from a party that is not necessarily seen as an obvious ally.”

Use the Petition to Frame the Case

A cert petition can begin to plant the seeds in the Supreme Court’s mind on what the outcome of the merits should be, according to Rosenkranz.

But the focus on the merits should be downplayed until a petition is granted, he said.

“So few cases get granted. The lawyer’s first job is to get the case in the door. Once it gets in the door, then a lawyer can worry about the merits,” he said.