There are few tasks more daunting to a lawyer than being asked to write, for the first time, a U.S. Supreme Court brief. You know that, whether it's a petition for certiorari, a brief in opposition, a merits brief, or an amicus brief, your product will be read by Supreme Court Justices and could eventually affect the law throughout the entire nation. You therefore want it to be as well written as possible.
The most obvious way to accomplish that is to research the legal issue thoroughly, devise persuasive arguments, and craft a well-organized, well-reasoned, and engagingly written brief. That's what you hope to prepare, of course, in every case regardless of the court; but it's particularly expected in the Supreme Court.
That isn't enough, though. The U.S. Supreme Court, like most other tribunals, has its own traditions, customs, and practices that are well known to regular practitioners but not necessarily to others. If you want your brief to be as effective as possible, you want it to conform to those traditions, customs, and practices. Failing to follow them might not be as off-putting as typos or misspellings or grammatical errors; but they equally tell the reader--the Justice or clerk--that you don't truly know how the game is played in the land's highest court.
As NAAG Supreme Court Counsel for the past 20 years, I have had the opportunity to read literally thousands of Supreme Court briefs. This guide is an effort to pass along insights I have thereby obtained on the "style" of these briefs. Most briefs filed with the Court are nicely written and follow the Court's protocol. Others, however, do not--including some written by state Attorney General offices. I have seen virtually every mistake a brief writer can make, on both substance and style. My goal here is to point out common mistakes of style so that, at the very least, your briefs will adhere to the Court's conventions.
TOPIC 1: GENERAL RULE--DITCH LOCAL IDIOSYNCRASIES
In some courts, an advocate begins oral argument by stating her name and who she represents and reserving rebuttal time. In other courts, the advocate dives right into the argument. Some courts expect argument to begin with a review of the facts. Other courts want their advocates to go straight to the legal issue. So the answer to the question "How should I begin my oral argument?" is "It depends on the customs and practices of the particular court before which you are practicing." An obvious corollary is that you should not adhere to a custom your local courts observe if you are appearing in a court outside your jurisdiction that operates differently.
The same holds true when it comes to writing briefs in the U.S. Supreme Court. You should eliminate local idiosyncrasies and adopt the Supreme Court's own idiosyncrasies. Here are some examples of local idiosyncrasies to eliminate:
* Many courts require that briefs begin with a Statement of the Case that sets out the procedural history, followed by a Statement of the Facts that describes the factual background. See, e.g., N.C. R. App. P. 28(b)(3), (4). Not the U.S. Supreme Court, which expects one Statement, typically called the Statement of the Case. And that Statement typically describes the facts before the procedural history.
* Some courts have adopted legal-writing guru Bryan Garner's suggestion that all citations be placed in footnotes. The U.S. Supreme Court has not. (1)
* I have read dozens of briefs from Louisiana attorneys that refer to the Court as "this Honorable Court"--as in, "This Honorable Court held in Katz v. United States, 389 U.S. 347 (1967), that electronic wiretaps are searches under the Fourth Amendment." Maybe Louisiana courts like to hear themselves referred to as "honorable." But this stilted language is out of place in the U.S. Supreme Court. Meanwhile, New Jersey courts apparently demand that lawyers, when citing statutory codes and case reporters, italicize the codes and reporters--e.g., 42 U.S.C. [section]1983 or 389 U.S. 347. That idiosyncratic citation style has no place in the U.S. Supreme Court.
* Some courts still expect case names to be underlined, rather than italicized. With one exception, case names in U.S. Supreme Court briefs are italicized. (2)
How can you tell what flies and what doesn't fly in U.S. Supreme Court briefs (apart from reading this manual)? Simple: Read briefs filed by the U.S. Solicitor General's office and by top Supreme Court practitioners. Myriad such briefs are available online, at the Solicitor General's webpage (https://www.justice.gov/osg/supreme-court-briefs) and on SCOTUSblog (http://www.scotusblog.com). You can also take a look at The Solicitor General's Style Guide (2d ed. 2015), which provides that office's citation and style rules.
TOPIC 2: SOME U.S. SUPREME COURT-SPECIFIC STYLES
The Court's rules mandate what font to use (the Century family), how many words a brief may contain, and so on. My goal is to go beyond what's in the rules and to discuss unwritten customs. Before turning to specific sections of a U.S. Supreme Court brief, it's worth recounting a few Court-specific styles that cut across many sections.
* Don't refer to the Court as "the Supreme Court," as in "the Supreme Court has held that___" It's "the Court held"; "this Court held"; or "Grutter held. ..."
* Citations to U.S. Supreme Court opinions should be to the official U.S. Reporter, without any parallel citations to the unofficial ("S. Ct." and "L. Ed.") reporters. The proper cite, therefore, is Roe v. Wade, 410 U.S. 113 (1973)--not Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). If the decision is not yet included in the official reporter, use the S. Ct. (and only the S. Ct.) cite.
* Don't refer to the lower court decisions in your very case by the case name. Let's say, for example, that you're seeking certiorari from the Ninth Circuit's decision in Smith v. Jones. The cert petition should not say, "The Ninth Circuit held in Smith v. Jones that. ..." That's like my saying, "Dan thinks that's a good idea." It sounds wrong to the ear (at least the ear of a regular Supreme Court practitioner). The better style is to say, "The Ninth Circuit held below that...," or simply "The Ninth Circuit held... ."
* Similarly, the case name should not appear when citing the lower court decisions in your very case. Nor should you cite the reporters, federal or regional. Rather, cite only the cert petition appendix--which, of course, contains the lower court decisions. Thus, the proper cite (in, say, a merits brief) is "Pet. App. 17a," not "Smith v. Jones, 473 F.3d 1234 (9th Cir. 2008); Pet. App. 17a." (In the cert petition itself, the cite would be "App. 17a" or "App., infra, 17a.")
* When referring to a specific federal court of appeals, don't include the words "Court of Appeals." It's therefore, "the Ninth Circuit held. ..." not "the Ninth Circuit Court of Appeals held... ."
With that background, let's walk through the different sections of a Supreme Court brief. We'll begin at the beginning: the cover page.
TOPIC 3: THE COVER PAGE
Don't worry; we won't be spending much time on this. For the most part, what goes on a cover page of a Supreme Court brief is obvious and can be gleaned from looking at virtually any brief filed with the Court by the U.S. Solicitor General's office or an experienced Supreme Court practitioner. What can go wrong? A few things, actually.
But let's start with what the cover page should look like. Here's a properly executed cover page in a recent brief filed by the Michigan Attorney General office:
Simple enough, or so it would seem. And yet over the years I have seen many errors on cover pages. Here are some things to remember:
* Do not include the state bar numbers of any of the attorneys listed on the cover page. Your state courts might want them, but the U.S. Supreme Court does not.
* Do not include, across from the signature block, an additional block saying "Please serve: [name, address]."
* When multiple law offices serve as counsel for a party, the cover-page signature block contains two columns. The office for which the counsel of record works typically appears in the right column.
* Do not place at or near the top of the page the words "October Term 2018" (or whatever Term you think it is). The Court used to require that the cover page set out the Term, but eliminated that requirement when it realized no one could figure out what to write in the summer, when the Court is in recess but the Term is not officially over.
* Do provide the email address of the counsel of record; do not provide a fax number (who faxes things anymore?). See Supreme Court Rule 34.1(f).
* In a capital case, the words "Capital Case" appear above the Question Presented; they do not appear on the cover page.
* The fourth component of the cover page (after the case name) is what Rule 34.1(d) calls "the nature of the proceeding and the name of the court from which the action is brought." At the certiorari stage, it should say (for example), "On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit." At the merits stage, delete "Petition for"; it should read "On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit." Many a counsel has forgotten to delete those two words when they prepared the merits brief.
* One final pointer. The fifth component of the cover page is the name of the document. These should be: "Petition for a Writ of Certiorari" (though some folks leave out the "a"); "Brief in
Opposition"; and "Brief for the Petitioner [Respondent]." Reply briefs at the merits stage are generally called "Reply Brief for the Petitioner"; at the cert stage, I have seen well-regarded practitioners put "Reply Brief; "Reply Brief for the Petitioner"; and "Reply to Brief in Opposition." (Some folks say "Brief for Petitioner"; others say "Brief of Petitioner. Either way is fine. And some folks say "Brief for the...