The Supreme Court
Drafting a Cert Question Assignment
In class on September 19, we will work on writing a final version of a cert question for each of the 3 cases on the Docket. If you are satisfied with the form of the question that appears in the Docket, you may submit that version of the cert question(s) or change it only slightly. Your draft of a proposed cert question in your assigned case is due by Monday September 18 at noon. You should send it to me by e-mail (firstname.lastname@example.org). To facilitate our in-class discussion and drafting exercise, I will prepare a composite handout of the suggested questions for each of the 3 cases. There are some suggestions below to help with this short exercise.
Advice for Drafting an Effective Cert Question
1. Try and limit your petition to one question, but in no case include more than two or three.
“Many lawyers sabotage their own certiorari prospects by reciting numerous questions presented. It is not credible to argue that a single case presents multiple "certworthy" questions. The best strategy is to set out one well-phrased question. Include a second question only if that is absolutely essential. The Court's rules permit the petitioner to argue subsidiary points fairly encompassed by the question presented, so it is not necessary to reel off variants of the question or numerous repetitive sub-issues.” Stephen M. Shapiro, Certiorari Practice: The Supreme Court’s Shrinking Docket, 24 Litigation 25 (1998).
“There is no surer way to put off the Court at the start than to present six or eight separate questions. Certworthy questions are few and far between. It would be a minor miracle if a single case really presented more than one. Every question you add makes it clearer that you don't have much confidence in any of them. Do not present more than two or three, and always present the most certworthy first.
It sometimes happens that a petitioner's most certworthy issue is not the best issue on the merits. Even in this situation, show restraint in preserving additional questions; it is all right to include one extra issue. For example, I usually include the one issue that seems strongest on the merits, especially if the most "certworthy" point doesn't look like a winner on the merits. If you want to rely on such an issue later, it must be included now; the Court will not consider an issue unless it is fairly comprehended by the questions presented. But it is risky to try to hedge your bets by throwing too many extra issues into the petition. If you offer more than two or three, you increase the chances that the Court will limit its grant to the single issue it considers most certworthy.” Stewart A. Baker, A Practical Guide to Certiorari, 33 Cath. U.L. Rev. 611 (1984).
2. Focus the question specifically on your case and avoid making it too general.
“Never state the question at such a high level of generality that it conveys no information, e.g., "Whether the award of punitive damages violated the Due Process Clause." The same question, better phrased, can galvanize attention: "Whether the $36,000,000 punitive damages award in this case, based on unintentional error in giving notice to an individual consumer, satisfies the Due Process Clause where the jury found actual damages of only $1,000." A properly phrased question captures in a few words the essential features of the case, including the federal law dimension, and suggests the reasons why Supreme Court review is imperative. At the very least, the case requires a further look.
Professor Gressman has provided a good test of a well-tempered question presented, which helps in many cases. Try to turn your question presented into an affirmative sentence preceded by the words "We hold that . . ." "Is that the ruling you want the Court to make? Is it an important ruling? Would it make a clear and intelligent and complete precedent, having an impact beyond the parochial concerns of your client?" "Anatomy of a Petition for Certiorari," Practical Litigator 61, 66-67 (May 1991). If not, counsel should return to the drawing board.” Stephen M. Shapiro, Certiorari Practice: The Supreme Court’s Shrinking Docket, 24 Litigation 25 (1998).
“Do not simplify the questions by making them so general that they do not explain what the case is about. The reader seeking a quick overview of the case is hardly enlightened by questions like "Was the defendant's right to due process of law denied by the trial court?" Such vague questions are usually an effort to dress up in constitutional clothes a batch of ordinary complaints about evidentiary and similar rulings below. Faced with such a vague question, the Court is likely to turn immediately to the lower court's opinion to figure out what the issues really are. If the opinion suggests there are not any, the Court may not turn back.” Stewart A. Baker, A Practical Guide to Certiorari, 33 Cath. U.L. Rev. 611 (1984).
3. Keep the question short and clear, and don’t slant it in your favor.
“The common wisdom is that each question should be stated so that the only possible answer is the one you want. Forget this advice. If the answer were so obviously in your favor, you would not have lost below. Besides, the Court does not sit to decide obvious cases. Trying to "load" the questions too heavily starts you out on the wrong foot; it makes you look like someone who cannot even be trusted to state the issues in a fair and straightforward way.
Rather than trying to argue your case in the questions presented, concentrate on stating the issues clearly. No one wants to read questions that look like a West headnote, bristling with subordinate clauses and unnecessary facts. The questions presented are the first -- and sometimes the only -- part of the petition the law clerks and Justices read. Their first impression should be that the brief will be clear and easy to follow. Ask someone who does not know the case to read your questions. If he has to read them twice, they need editing. Do not be afraid to simplify the question by using shorthand phrases that are used frequently in federal cases. If you simply cannot eliminate the complexity, either because the facts are involved or because several questions are interrelated, use an introductory sentence followed by numbered or lettered subquestions.” Stewart A. Baker, A Practical Guide to Certiorari, 33 Cath. U.L. Rev. 611 (1984).