Appellate Services
Supreme Court of the United States Matters
The Law Offices of Thomas Ogden advises clients concerning petitions for writ of certiorari and other appropriate matters before the Supreme Court of the United States.
Thomas Ogden has practiced law for over 20 years and is certified by the State Bar of California Board of Legal Specialization as a Specialist in Appellate Law. His appellate experience includes hundreds of civil and criminal appellate-related matters, substantial experience concerning matters before numerous United States Courts of Appeals, and matters reaching the Supreme Court of the United States.
Supreme Court Review Is Highly Discretionary
The Supreme Court of the United States is not ordinarily another level of appeal available simply because a party received an unfavorable decision in a lower court.
Review by writ of certiorari is discretionary.
The Court's role extends beyond correcting alleged error in an individual case. A petition for certiorari therefore generally must address why the legal question presented warrants consideration by the nation's highest court.
That distinction changes the focus of the advocacy.
The central question is not simply:
Why was the court below wrong?
It is also:
Why should the Supreme Court review this particular case?
Considerations Governing Certiorari
The Supreme Court's rules identify considerations that may support certiorari review rather than establishing an appeal as of right.
Depending upon the case, potentially significant considerations can include:
- Conflicts among federal courts of appeals
- Conflicts concerning important federal questions
- Important federal questions that have not been settled by the Supreme Court
- Decisions that conflict with relevant Supreme Court precedent
- Other circumstances presenting an issue of substantial federal importance
The existence of alleged legal error alone ordinarily does not make a case suitable for Supreme Court review.
The petition should therefore place the legal issue in a broader context and explain why resolution by the Supreme Court may matter beyond the immediate dispute.
Federal and State-Court Paths to the Supreme Court
Supreme Court review can arise from both the federal and state court systems.
A federal matter may reach the Supreme Court following a decision by a United States Court of Appeals.
A state-court matter may potentially reach the Supreme Court when the case presents an appropriate federal question and the necessary state-court proceedings have been completed.
The route to Supreme Court review therefore depends upon where the case originated, the judgment being challenged, the courts that have already considered the matter, and the federal issue presented.
The Petition for Writ of Certiorari
A petition for writ of certiorari asks the Supreme Court to select the case for review.
The petition must identify the questions presented and explain why the case warrants the Court's discretionary attention.
This generally requires a different form of advocacy from an ordinary appellate brief.
A lower-court case may contain numerous contested issues, but a certiorari petition ordinarily benefits from identifying the federal question that most clearly presents a reason for Supreme Court review.
Potential considerations can include conflicts among courts, uncertainty in federal law, the recurring importance of the question presented, and the consequences of leaving the lower-court decision unresolved.
Issue Selection and Preservation
Supreme Court strategy remains closely connected to what occurred in the courts below.
The federal issue presented for Supreme Court review generally must have been properly raised and preserved through the prior proceedings.
Accordingly, potential Supreme Court review cannot ordinarily be treated as an opportunity to introduce an entirely new legal theory after the lower-court proceedings have concluded.
The opinions, orders, record, and procedural history below all matter when evaluating whether a case presents a viable basis for certiorari.
This makes disciplined issue selection particularly important.
A case may contain many disputed questions, while only one or two present a realistic basis for Supreme Court consideration.
Timing
The time for filing a petition for writ of certiorari is governed by the current Rules of the Supreme Court of the United States and can depend upon the judgment being reviewed and the procedural history below, including rehearing proceedings.
The relationship between the judgment, rehearing proceedings, mandate, and any permitted extension should be determined under the current Supreme Court rules applicable to the particular matter.
A party considering Supreme Court review should therefore identify and apply the current governing rules promptly rather than rely on generalized deadline information.
California Federal Matters and the Supreme Court
Federal cases arising in California are litigated in the Northern, Eastern, Central, or Southern District of California, with appeals proceeding to the United States Court of Appeals for the Ninth Circuit.
After an appropriate Ninth Circuit judgment, a party may consider whether the matter presents a basis for a petition for writ of certiorari to the Supreme Court of the United States.
At that point, the analysis changes from whether the Ninth Circuit committed error to whether the case presents a federal question warranting the Supreme Court's discretionary review.
California State-Court Matters and the Supreme Court
A matter originating in a California superior court ordinarily proceeds through the California appellate system before any potential question of Supreme Court review arises.
For matters within Court of Appeal jurisdiction, the case generally proceeds through the appellate district serving the county of trial. An appropriate case may then involve proceedings before the California Supreme Court.
Where the final state-court proceedings present a preserved federal question appropriate for Supreme Court review, a petition for writ of certiorari may potentially be considered.
Thus, a California state-court case and a federal case arising in the same place may ultimately reach the same Supreme Court through very different procedural paths.
Civil and White-Collar Criminal Matters
Potential Supreme Court issues may arise in both civil and criminal appellate proceedings.
Mr. Ogden is available to consult concerning appropriate civil and white-collar criminal matters involving significant federal questions and potential Supreme Court review.
The relevant analysis depends upon the judgment below, the federal issue presented, preservation of that issue, the procedural posture, and the considerations supporting discretionary review.
If Certiorari Is Granted
If the Supreme Court grants a petition for writ of certiorari, the case proceeds beyond the petition stage to merits briefing and, ordinarily, oral argument under the Court's rules and orders.
The question or questions accepted for review may be narrower than the full range of issues litigated below.
Advocacy at that stage therefore focuses closely on the federal question the Court has agreed to decide and the consequences of the competing rules presented by the parties.
Evaluating a Potential Supreme Court Matter
Evaluation of a potential Supreme Court matter may include consideration of:
- The judgment or decision below
- The federal question presented
- Whether the issue was properly preserved
- The procedural history of the case
- Conflicting decisions among lower courts
- Relevant Supreme Court precedent
- Whether the question has broader or recurring significance
- The clarity of the factual and procedural vehicle for deciding the issue
- The applicable filing deadline
- The effect of rehearing proceedings
- The practical objectives of seeking Supreme Court review
Because certiorari is discretionary, a potentially meritorious claim of error and a potentially viable Supreme Court case are not necessarily the same thing.
Start With a Conflict Check
If you are considering a petition for writ of certiorari or another matter involving the Supreme Court of the United States, the first step is a brief conflict-of-interest check.
Only basic contact and case-identifying information is requested initially.
Because Supreme Court filing periods can be strict, prospective clients should continue protecting all applicable deadlines while an inquiry is being considered.
Using this website or submitting a conflict check does not create an attorney-client relationship and does not extend, suspend, stay, or otherwise affect any legal, trial-court, appellate, or other deadline or proceeding.