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Bar News - June 17, 2005 US Supreme Court Granted Cert in Ayotte v. Planned Parenthood... Now What Happens? By: Eric Cioffi
An attorney reaching this exhilarating yet daunting career milestone is likely to immediately obtain a copy of the Court’s rules. (See www.supremecourtus.gov/ctrules/rulesofthecourt.pdf.) Unlike most procedural schemes, the rules are clear and concise, and counsel should take the time to read them thoroughly. The following is a basic outline that tracks a case from the order granting certiorari ("the order") to the decision. It is by no means a complete tour of the process, but intended to serve as a primer. Briefing Schedule After the order is entered, counsel of record will receive notice of the order, as will the court below. Counsel should be on the lookout for a briefing schedule, which will be issued by the clerk. In the absence of a schedule, the rules set forth the time to file briefs on the merits as follows: Petitioner’s or appellant’s brief ("appellant’s") is due "within 45 days" of the grant of cert. (Sup. Ct. R. 25.1.) Respondent or appellee’s ("appellee’s") brief is then due "within 35 days" after the appellant’s brief is filed. (Sup. Ct. R. 25.2.) Any reply brief of the appellant is due "within 35 days" after the appellee’s brief is filed. (Sup. Ct. R. 25.3.) Any party that intends to file an amicus brief must comply with the appropriate briefing schedule of the party amicus supports (i.e., if amicus is supporting the appellant’s position, it must comply with Supreme Court Rule 25.1.) The time to file may be modified by the filing of an application to extend time. (See Sup. Ct. R. 30.) However, Supreme Court insiders have informed me that extensions are not looked on favorably, and most practitioners try their best to comply with the briefing schedule set by the Court. Joint Appendix Within 45 days after entry of the order, the appellant must file a joint appendix. The joint appendix is identical to an excerpt of record, such as that used by the Ninth Circuit. As a general rule, the appendix should serve as an abridged record, sort of a desk-top manual to your case. The rules are very specific as to what must be included, and leaves it up to the parties to decide what may be included. (See Sup. Ct. R. 26.1.) Indeed, "the parties are encouraged to agree on the contents of the joint appendix." (Sup. Ct. R. 26.2.) If no agreement can be reached, the parties must abide by the following deadlines: Within 10 days after entry of the order, the appellant must designate those portions of the record it intends to include in the appendix. Id. Ten days after receiving appellant’s designation of the record, appellee must do the same. Id. "[U]necessary designations should be avoided," and there is no provision allowing for cross-designations. (Sup. Ct. R. 26.2.) I note that the parties may agree to "defer" the filing of a joint appendix until after the briefs have been filed. This method is, however, discouraged. (See Sup. Ct. R. 26.4(a).) Brief The Case Brief writing is an art form. As one mentor once said, "a brief is legal literature, and brief writing is serious business." Because "briefs will almost always decide your case . . . [y]ou should put the kind of effort and skill into writing a brief that a poet or novelist puts into his art." (Pannill, Appeals: The Classic Guide, 25 Litigation 6, 7 (Winter 1999).) One appellate justice has noted that appeals are "basically decided on briefs . . . if you can’t write, you can’t win . . . ." (Quibell, Mass Appeal, The Recorder (May 21, 1997).) The point: Do it right, or don’t bother. Some members of the Supreme Court Bar relate the briefing experience as "all consuming." Most do not brief the case in isolation, but rather bounce ideas off a team of lawyers working on the case. Although there is one principal writer, the team "churns" each draft of the brief. This process involves intense editing in an attempt to present the case in the most concise and convincing manner possible. It may take as many as 10 or more drafts to create a well-crafted brief. Amicus – Friend or Foe? Roughly 90 out of 9,000 cert petitions are granted each year. By the numbers alone, every case heard by the Supreme Court is unique and "high profile." One outgrowth of this fact has been the drastic increase in amici filing briefs with the court. Indeed, over 100 amicus briefs were filed in the recent affirmative action case involving the University of Michigan Law School admission policy. (See also, Kearney and Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, U. Penn. L. Rev. (Jan. 2000) (amicus filings have increased by more than 800 percent in the last fifty years.) Abortion, arguably, is the most explosive social issue today. The parties in Ayotte should expect amici to flock to the case like bees to the hive. So, how will amicus briefs alter or effect the outcome in Ayotte? According to one study, not much. A survey of 70 Supreme Court clerks revealed that amicus briefs are not very useful or influential in cases involving constitutional issues. (Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, J. of Law and Pol. (Winter 2004). However, neither party should overlook the opportunity to harness the power of a strong coalition of amici. One suggestion: Assign an attorney who is not actually briefing the case to field inquiries from amici. This attorney should also do his/her best to act as a facilitator, attempting to get amici to join and file a few strong briefs rather than paper the Court with useless fodder. Then again, good luck. In high profile cases, every organization wants to add their two cents! Regardless, the swirling attention the case receives must not infect the most critical task at hand – drafting the merits brief. Supplemental Briefs Any party may file a supplemental brief. The content of the brief is, however, restricted to the presentation of late authorities, newly enacted legislation, or other intervening matters that were not available in time to be included in the brief in chief. (Sup. Ct. R. 25.5.) The restriction on the use of supplemental briefs is taken seriously by the Court. Such briefs must not be used to raise new issues or bolster the existing arguments. Supplemental briefs must be filed "before the case is called for oral argument." (See www.supremecourtus.gov/oral_arguments/guideforcounsel.pdf.) Oral Argument The Court will notify counsel regarding when oral argument is calendared. A case ordinarily will not be called for argument less than two weeks after the brief on the merits for the appellee is due. Preparation is key. Search out practitioners willing to serve on a moot court panel, and then moot your case multiple times. Be sure to find new panel members each time you moot your case. Reread the record and the briefs. Try not to let the gravity of the situation overwhelm you . . . then again, it is an argument before the United States Supreme Court! Generally, oral argument is scheduled a month or so after briefing on the merits is completed. Because briefing in Ayotte will probably not conclude until the end of the summer (when the court is in recess) the case will most likely not be heard until the opening of the October 2005 Term. If there are no significant changes to the briefing schedule, Ayotte could wind-up as one of the first big cases of the October Term. Decision and Rehearing After argument, the Court will conference the case and a justice will be assigned to author the opinion. Opinions may be handed down at any time after the argument. The losing party may file a petition for rehearing. There is an additional filing fee, and the petition must be filed within 25 days after the opinion is entered. (See Sup. Ct. R. 44.1.) The prevailing party may file a reply to the petition only when requested to do so by the Court. (Id.) Eric Cioffi practiced with a national appellate law firm based in California before associating with Robert Stein & Associates in Concord. He continues to concentrate in appellate law. |
When the US Supreme Court issues an order granting certiorari in a high profile case such as Ayotte v. Planned Parenthood, what can the NH Attorney General and the attorneys representing Planned Parenthood expect? How does the appellate process for the nation’s highest court differ from typical appellate processes, particularly with a case garnering so much national attention? Here’s what to expect, and what the attorneys will probably be doing:|
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