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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, May 19, 2010

Generally, Don't Take Your Case to the United States Supreme Court Unless You Have To

7,738 cases were filed in the Supreme Court of the United States in their 2008 term, which begins in October of that year. Out of those, the Court held argument on 87. Of those, they disposed of 83. 74 of those dispositions were by signed opinions, including per curiam opinions signed by no individual justice, and the judgments in cases where the trial is in the Supreme Court. Cases the Supreme Court disposes of may be either affirmed or reversed. That is, a party could go through the whole laboriousness and expense of getting a case into SCOTUS, getting it briefed, arguing it and ending up with an affirmance making the ruling against the party in the party's case the law of United States of America.
So, if you or your client have the expectation that the Supremes are going to right the wrong in your United States Circuit or highest state court case, that expectation is practically always misplaced. Petitions for certiorari to the U.S. Supreme Court should practically always be reserved for situations in which the judgment and law of the case is utterly intolerable for your client or in which delay of finality of the ruling complained of is in your client's interest.
I'm speaking here of a necessary but not sufficient condition for advising a petition for cert. That is, advice to prepare and file a cert. petition should only be given when the legal and factual grounds exist. I hope to write more about those legal grounds in later blog posts. Be aware, and make sure that your client is aware, that more than 98 out of every 100 filings are never taken up at all.

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