Filing a Brief in Opposition to a Certiorari Petition

Litigants who are dissatisfied with the ruling of a state court of last resort or a Court of Appeals always have the option to approach the United States Supreme Court and request a review through a petition for writ of certiorari. In the same vein, the winning side also gets a chance to state his case and request the highest court in the land to preserve the decision of the lower court. This reply by the respondent is known as Brief in Opposition.In fact, filing a brief in opposition to the certiorari writ is mandatory in a capital case or when ordered by the Court. In all other cases, the respondent is free to decide whether he wants to file an opposition brief or not.

Following are the main rules governing a brief in opposition:

•    A brief in opposition should be filed within 30 days after the case is placed on the docket, for it to be considered valid. The respondent can apply to get the time extended by up to 30 days.

•    Akin to the certiorari petition, 40 copies of the opposition brief should be filed with the Supreme Court. (only 10 copies if either the petitioner or the respondent himself is proceeding in forma pauperis).

•    The same paper type, size, font, formatting, page limit and word count restrictions apply to both petition and opposition brief. However, the cover of the latter should be orange in color.

•    A brief in opposition should be brief and clear. It only requires a Table of Contents, Table of Cited Authorities, Argument and Conclusion. The first two can also be omitted if the brief does not 1500 words.

•    The Questions Presented, List of Parties, Opinions Below, Jurisdiction Statement, Constitutional/Statutory Provisions and Statement of the Case are not required under the Rules as they have already been presented by the petitioner. However, if the respondent is dissatisfied with how the petitioner has stated the legal issues or characterized the facts, the opposition brief can restructure the same from the respondent's perspective.  

•    A brief in opposition is filed for the express purpose of presenting the respondent's arguments for denying the petition! Therefore, the main section is the 'Reasons for Denying Certiorari' and it can highlight how the lower court's judgment does not conflict with that of the Supreme Court or other courts in any manner or does not bear any kind of national significance. It can also emphasize an objection to the jurisdiction of the Court to grant a certiorari petition.

•    It is imperative for the opposition brief to call the Court's attention to any perceived misstatement of fact or law in the petition that will have a bearing on the issues that will be before the Court in case the certiorari writ is granted. Any objections to consideration of a question presented raised later will be summarily waived unless clearly presented in the brief.

•    Providing a summary of the arguments in the brief is optional.

•    An Appendix is also rarely included.

•    The brief in opposition cannot be joined with any other pleading as such.

The odds are on the respondent's side as barely a handful of the thousands of the petitions for writ of certiorari are actually granted by the Supreme Court every year. However, it is always better not to lose the opportunity to explain to the court why it should end the long litigation journey without any further review right away! If you would like to add anything about the brief in opposition, please mention in the comments section below.

Source : articlesbase.com