The Problem
If you lost in the Court of Appeal, you can then ask the California Supreme Court to hear your case, via a "petition for review".
The Supreme Court denies over 95% of these petitions. And, of course, even if the Court grants your petition for review, you might still lose when the Court rules on the merits of the case.
What's going on here? What competent lawyer in his right mind would spend his client's money preparing and filing a complaint in a trial court with less than a 5% chance of winning? Or file an appeal to the intermediate appellate court such a low payoff?
So why do so many of them do exactly that in the Supreme Court? Mostly because they don't understand how the Supreme Court views its job.
The lawyer thinks, "I file a complaint because I'm right on the facts and the law. And I file an appeal when I think the trial court got it wrong. Supreme Court? Same thing. The Court of Appeal got it wrong, and once I show this to the Top Court, they'll grant my petition, hear it on the merits, and give me my victory."
Wrong approach, because the Supreme Court has a very different perspective. The Justices (and their law clerks) think: "Trial judges make mistakes, so we have an elaborate, expensive group of intermediate appellate courts — staffed by hard-working, intelligent judges and law clerks — to review trial court records and correct those mistakes. Occasionally those appellate courts make mistakes too, but it's not the Supreme Court's job to correct them. We are not a Court of Error Correction. We have only seven judges, so we have time to handle no more than about 100 cases a year. We use those 100 cases to clarify the law. The law needs clarifying when different intermediate appellate courts have announced conflicting rules of law, or when some unresolved question of law affects a large segment of society or some industry or institution. If your case doesn't involve such a question, we won't hear your case — even if we agree that you got screwed by the intermediate appellate court! Our legal system isn't perfect. Live with it."
That's a hard message to hear, and most lawyers never hear it, don't really understand it, or refuse to believe it. Their petitions focus on the Court of Appeals' mistakes. They might have read the Supreme Court's warning to focus on "conflicts among intermediate appellate courts" and "important questions of law", but they don't get what it means. So they spend their client's money to join the 95+% who get the unexplained "Petition denied" notices.
So how might you give the Supreme Court what it's looking for?
In most cases, you can't. You simply don't have the ammo. Without it, it's pretty hard to fake it and fool the Supreme Court. They're too smart for that, and they see too many petitions trying to do the same thing. If that's your situation, it's time to consider folding your cards and saving your client some bucks.
Show "A Conflict"
The Supreme Court first looks for a direct, express conflict in statements of law appearing in a published opinion of the Courts of Appeal.
Like this. An earlier reported opinion says, "The rule of law on this issue shall be X". But your reported opinion says, "We refuse to follow that decision. The rule of law on that issue shall be Y, not X." When this happens (it's rare), the Supreme Court is very likely to say: "Our main job is to resolve these conflicts, so everyone follows a single rule of law. Petition granted."
That accounts for a significant portion of the tiny number of petitions granted.
Attorneys try to squeeze their petitions into this category when it really doesn't fit. They attempt to show a "conflict" by arguing that the opinion in their case is inconsistent with another opinion. The two reported cases purport to use the same rule of law, but apply them differently. This rarely works. Other petitions argue the same thing, so why should the Supreme Court pick yours? They can't and won't grant them all.
If the Court of Appeal opinion in your case is unpublished, you have very little chance of showing a conflict that matters to the Supreme Court. If no one but the parties see it, who cares? It has no effect on "the law", so the Supreme Court is unlikely to grant review. But it does happen occasionally — usually when your unpublished opinion presents an opportunity to resolve a conflict that already exists among other reported opinions.
Show "An Important Issue of Law"
Every lawyer thinks his issue is important. It might be important to the lawyer and it might be important to the client. It might even be important to academics. But that's not what the Supreme Court means by "important".
"Important" means that a significant segment of society or some institution — the police, school administrators, insurance companies, trial courts, etc. — needs guidance on some issue in your case. State officials might waste a lot of money putting on the ballot a measure that is challenged as unconstitutional. A new statute gives trial courts only vague guidance on when to send a case to arbitration. A planned new state highway or rail system cannot go forward because the language of a bond issue is ambiguous.
If the issue in your case seems narrow, find a way to broaden it. Suppose your case involves the legality of the detention of a student by a high school official. Show the court that educators have expressed concern about the paucity of legal guidance on school detentions. If your case contains an issue involving the validity of a certain contractual provision, show the court that the provision is commonly used in form contracts throughout the jurisdiction. If the validity of a local ordinance is at issue, show that other cities or counties have enacted similar ordinances.
Show importance not with law, but with facts. Explain why this issue needs resolution, and back it up with citations to news articles, declarations you attach, and whatever else you can lay your hands on. But, you say, "I've been told that an appellate court does not look beyond the record, and these facts are not in the record." That rule applies to appeals, but not so clearly to original petitions. So go outside the record when you need to.
The most effective way to show importance is with amicus letters from other parties. An amicus letter is not an amicus brief. It should be a short letter (no more than a couple of pages) explaining the "real world" effect of the issue, rather than arguing why "the law" requires the issue to be resolved a certain way. (If and when the Supreme Court grants review on the merits, you can then rustle up amicus briefs to help argue the law.)
Amicus letters should come from institutions that are directly affected by the issue, and should explain in as much detail as possible why the lack of judicial guidance on the issue is hurting each institution. At this point, how the issue is resolved is less important than the need for some resolution — one way or the other.
The more amicus letters, the better. And the more prominent the institutions writing them, the better.
More Tips
- Pique the Court's Interest
Even if the legal issues in your case are unlikely to be significant to anyone other than your client, there might be something fascinating about them. If part of your case involves baseball, movie stars, steamy sex, or another popular subject, emphasize it. The Justice or law clerk who reads your petition might want to tell his friends that she helped decide "The Barry Bonds Case" or "The Case of the Horny Lawyer."
- Find Out Issues the Court Currently Cares About.
Look over recent decisions by the Court in the area of law involved in your case, and try to squeeze your case into some issue left unresolved by the Court.
- Keep Your Petition Short.
Some law clerk will be reading a large batch of similar petitions. Most are long. Yours will get more attention if it's short.
Do not spend a lot of words explaining the procedural history of the case and the intermediate appellate court's opinion. All that will appear in the opinion, which you must attach. The law clerk will usually read the opinion first, so there's no need to duplicate what the opinion already does.
Keep your criticism of the appellate court's reasoning to a minimum. Most petitions go on and on about how wrong the court was. Big mistake. Keep your eye on the ball. At this point, the ball is not the merits, but persuading the Top Court to hear the case. The fact that the intermediate court's reported opinion is wrong is relevant, because it might screw up the law. So discuss it, but keep it short.
Instead, focus the petition on the two key factors discussed above: conflicts and importance. And put them up front. Lead with a two-page (no longer) "Introduction" that tells the law clerk: "This is the kind of case you guys have been looking for. Take it!"
If you follow these suggestions and still your petition is denied, don't blame yourself (or me). Following these suggestions will, at most, put you into that small group of petitions that had a chance of being granted. You might do a great job, but your petition may be denied for reasons well beyond your control (such as the court's workload). So don't feel bad if this happens — you have plenty of company.
But if you are one of the lucky few, you might salvage your client's case — and the result might be a landmark decision that emblazons your name in legal history.
by M.A.T. Legal Director Myron Moskovitz
