Commercial Litigation in Federal Courts
CHAPTER 50: APPEALS TO THE
by Kenneth S. Geller,
John J. Sullivan and
Alan E. Untereiner
50.1 Scope Note.
50.2 Strategy and Objectives.
(a) The Unique Role of the Supreme Court and Its Consequences
for Business and Commercial Litigation.
(b) Whether to Seek Review.
(c) Strategy at the Petition Stage.
(d) Strategy at the Merits Stage.
50.3 The Mechanics of Supreme Court Practice.
50.4 The Court's Jurisdiction to Review Decisions of Federal
and State Courts.
(a) Jurisdiction to Review Decisions of the Courts of Appeals,
District Courts, and Other Federal Courts.
(b) Jurisdiction to Review Decisions of State Courts.
(1) The Requirement of Finality.
(2) The Requirement of Decision by Highest State Court.
(3) The Requirement of a Substantial Federal Question.
(4) Independent and Adequate State Grounds for the
50.5 Practice and Procedure on Petition for a Writ of
(a) Factors Guiding the Court in the Exercise of Its Certiorari
(1) Conflict in the Lower Courts over the Question
(2) Importance of the Issue Raised.
(3) Erroneous Decision Below.
(b) Briefing at the Petition Stage.
(2) Content of the Petition.
(3) Opposing Certiorari Review.
(4) Reply, Supplemental, and Amicus
50.6 Briefing and Arguing Cases on the Merits.
(a) Merits Briefs.
(1) Timing and Form.
(2) Statement of the Case.
(3) Argument Section.
(4) Summary of Argument
(5) Supplemental and Amicus Briefs.
(b) Joint Appendix.
(c) Oral Argument.
(2) Procedure and Etiquette.
(3) Content of Argument.
50.7 Petitions for Rehearing, Motions, and Applications.
(a) Petitions for Rehearing.
(b) Motions and Applications.
50.8 Procedural Checklists.
(a) Petition for a Writ of Certiorari.
(b) Brief for the Respondents in Opposition.
(c) Reply Brief at Certiorari Stage.
This chapter discusses the practice in, and summarizes the
procedures of, the Supreme Court of the United States. There are generally two
stages in any Supreme Court case. The Court first considers whether to review a
decision issued by a lower federal or state court. The losing party below
initiates the proceedings in the Supreme Court by filing a petition for a writ
of certiorari. The prevailing party below is allowed to file a brief in
opposition to the petition, which is often followed by a reply brief for the
petitioner. The Court decides whether to grant the petition on the basis of the
parties' briefs; no oral argument is held. If the Court decides to review the
lower court's decision, then in the second stage of the proceedings the parties
file briefs on the merits of the legal question(s) presented and the case is
argued orally to the Court.
The focus of this chapter is on these two stages of Supreme
Court review, with special emphasis on the legal and prudential constraints on
the Court's certiorari jurisdiction, which drastically limit the number of
business and commercial cases decided by the court each Term, and on the most
effective strategies for briefing and arguing a case on the merits once the
court has granted review. The chapter does not discuss in any detail the Court's
limited appellate or original jurisdiction, which are seldomly invoked. A few
collateral matters, such as applications for a stay (often an important
consideration in high-stakes business or commercial litigation) and petitions
for rehearing, are treated briefly.back to top
50.2 Strategy and
* * *
(c) Strategy at the Petition Stage.
In petitioning for or opposing Supreme Court review, the key
focus is not necessarily on the merits of the question raised — i.e., which side is right —
but rather on whether the issue itself is so important that the Court should use
its valuable time and limited resources to decide the issue now. The merits of
the question presented will, of course, often figure in the calculus of why the
issue is important, but are not the principal focus of the decision the Court is
asked to make at the petition stage. Counsel often waste valuable pages of a
certiorari petition presenting a partisan argument in favor of one side or the
other of a question, when they should be trying to convince the Court that, no
matter which side is correct, the issue important and subject to conflict or
confusion in the lower courts. The inquiry at the petition stage is whether an
issue is "certworthy." The fact that a federal court of appeals was right or
wrong in deciding the issue is often irrelevant to the "certworthiness"
It is important to bear these considerations in mind in
formulating (or, as respondent, reformulating) the question presented for the
certiorari petition. Imagine a Supreme Court opinion deciding the question
presented. Does the opinion propound an important rule of federal law? If not —
and, in particular, if the opinion decides only a factbound issue of
significance only to the parties — then the question presented will need to be
reformulated or the wisdom of seeking Supreme Court review will need to be
(d) Strategy at the Merits Stage
The selection, formulation, and presentation of arguments at
the merits stage — both in briefs and at oral argument — often require difficult
strategic judgments. To some extent, of course, these judgments closely resemble
the decisions made in other litigation settings. But Supreme Court litigation
also involves a number of factors that make it unusual or unique. For example,
the Supreme Court generally does not place much weight on lower court decisions,
unless they contain reasoning and analysis that is persuasive. In addition, the
Supreme Court is always free to overrule (and often able to distinguish) its own
previous decisions. For those reasons, arguments that rely significantly on
precedent generally carry less weight in this forum. The Court is much freer
than are the lower courts to resolve legal issues on the basis of what makes
sense, regardless of past decisions. In addition, in many Supreme Court cases
there is substantial evidence available of how individual Justices regard
certain issues and methods of argumentation. Such information about the likely
attitude of individual Justices is often critically important to the proper
formulation and presentation of arguments.back to top
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