The CockleBur Blog

New Petitions Recently Filed by Cockle Legal Briefs

Glenn-Colusa Irrigation Dist. v. NRDC, filed on July 14, 2014

Michigan v. EPA, filed on July 14, 2014

Heffner v. Murphy, filed on July 15, 2014

Blanca Tel. Co. v. FCC, filed on July 17, 2014

The Top 5 Skills of the Best Legal Assistants

We work with some of the brightest lawyers and legal assistants in the country each day.  If there’s one thing we’ve learned in the course of filing approximately 1,200 Supreme Court briefs a year, it’s that our office runs on COFFEE!  But, if there’s a second thing that we’ve learned, it’s that an organized and competent legal assistant is worth his or her weight in gold.

These individuals are key resources for an attorney and are frequently responsible for legal research, writing, and managing competing time-sensitive projects.  To be successful in the legal field, a great legal assistant should have:

1. Technology Skills

We live and work in an environment marked by the high use of technology, giving us the ability to collaborate and make individual contributions as never before.  Tech-smart legal assistants provide an array of computer-based tasks for their less than tech-savvy attorneys.  Some of these functions include:

  • Formatting legal documents
  • Tracking deadlines
  • Maintaining calendars
  • Videoconferencing
  • Navigating legal research databases

2. Organizational Skills

Organizational skills are essential in managing the day-to-day aspects of a law practice or an attorney’s bloated case load.  Twelve hour days aren’t uncommon.  The best legal assistants are able to maintain paper and electronic files, accomplish difficult tasks at the last minute, and operate as an undeniable force in front of those who want more time than an attorney is willing to give.

Papers_Organized-and-Stacked3. Research skills

Effective legal research skills separate the Pros from the Joes.  A great legal assistant can execute legal research on Westlaw or Lexis, cite check, locate expert witnesses, and obtain relevant information from the client.

4. Writing Skills

Attorney’s won’t, and often can’t, write everything that’s filed in court.  Legal assistants often find themselves drafting internal memorandums, court motions, transactional documents, and entire sections of a brief.  An indispensable legal assistant utilizes strong grammar and proofreading skills to assist attorney’s filing in a variety of jurisdictions.

5. Attention to Detail

I put this one last – and you’ve noticed!  That’s probably because you’ve got an eye for detail (or apparently nothing else to do today).  Quality legal assistants handle many of the minute details of a legal practice.  They’re responsible for everything from scheduling meetings, monitoring deadlines, and organizing emails to ordering lunch, booking a flight, and checking for updates on the Federal Rules of Appellate Procedure.

12 Questions You Should Ask Your Supreme Court Brief Printer

Filing a U.S. Supreme Court brief is a consuming task. By its very nature, Supreme Court litigation will make demands on your talents, your time, and your budget. When you choose a brief printer, you are taking on a kind of partner who will be closely involved with your life all the way through the filing day. So before committing to a Supreme Court brief printer, you should ask a few questions to be sure you are making the right choice.

You Need To Know That the Brief Printer Can Help You File A Quality Brief

How long has your company been in business? Quality work requires experience. Period. Your brief printer should be more than just a website and a rule book. The task of evaluating and printing a quality brief demands the knowledge and resources that can only come from decades in the brief printing business.

brief printer questionsWill you proofread my brief to make sure I file the very best possible work? Proofreading is essential for top-shelf Supreme Court brief filing. A two-person team of professional proofreaders is necessary to give your brief a thorough, line by line examination and alert you to any errors.

Do you have experts who can make sure my brief is rule-compliant? The Court will not docket your brief unless all the required elements are present. An experienced staff of Supreme Court experts will make sure you avoid the embarrassment of filing a non-compliant brief.

You Need To Know That the Brief Printer Can Provide Convenient Service

Will I see a proof the same day I send my draft? The quicker a brief printer can typeset and read your proof, the later you can send your draft. And more time with the draft means more time to craft the perfect brief.

Do you have the flexibility to handle a large job or to file on short notice? Your practice requires you to adapt to unforeseen circumstances, and your brief printer should be able stay with you when that happens. You need a brief printer that can handle an unexpectedly large job, or print and file a quality brief on an accelerated schedule.

Will you review my camera-ready brief to make sure it complies with the rules—for free? Some experienced practitioners prefer to format the brief themselves. But it never hurts to have another set of eyes check the draft for compliance. And you shouldn’t have to pay for that.

Will somebody be available to take my call during my work day, no matter what part of the country I am calling from? The planet is round, and it turns. This means that a business on the East Coast might be closing just as customers on the West Coast are returning from lunch. Located in Omaha, Cockle Legal Briefs is here for you early in the day in New York and late in the day in Los Angeles.

You Need To Know That the Brief Printer Will Help Keep Your Costs Down

Can you give me a good idea of my costs when I call, even if you haven’t seen the draft? Text in the Supreme Court format typically uses more pages than other common formats. If you can provide a general page count and a description of the original pages when you call, the brief printer should be able to give you a good sense of the final document length and your printing costs.

After you see my draft, will you provide a detailed estimate of my costs before I commit to the job? After the pages come in, the brief printer should be able to compile a much more accurate cost estimate. And you should not have to commit to the work before you see an itemized estimate.

Can you give me a discount if I send my copy in a Word or WordPerfect file? Brief printers use various methods to create a typeset draft, and original drafts in Word or WordPerfect can be more readily formatted. Those savings should be passed on to you.

Can you give me advice to help me eliminate unnecessary pages and reduce my costs? Every court has its own procedures and rules, and the Supreme Court is no different. The brief printer should be able to tell you what elements are required, to make sure your brief is rule-compliant, and which are not, so you have the option to reduce your pages and your costs.

Do you offer a discounted rate to first-time customers? Deciding to use a brief printer is an important part of your Supreme Court case, and your trust should be rewarded. The brief printer should thank you, their new customer, by offering you a page discount.

Stats, Damned Stats, and Statistics

Eight observations from the 2013 Term.

  1.  Justice Kennedy is the most influential (or influenced?) Justice.
    • He was in the majority in 95% of cases this term.
    • He was in the majority in all cases decided by a 5-4 margin.
    • He and Chief Justice Roberts were in full agreement 84% of the time.
      • By comparison, only Justice Kagan was in full agreement with the Chief Justice more than 75% of the time.
  1. Justice Scalia is an engaged jurist.
    • He asked more questions than any other Justice at oral argument 36% of the time and was one of the top three questioners 69% of the time.
      • He asked an average of 19.6 questions per oral argument.
        • Justice Thomas did not ask a single question for the eighth straight term.
      • Justice Scalia once again authored more opinions this year (23) than any of his colleagues.
  1. Pedigree matters.
    • 33% of oral argument advocates were from the Office of the Solicitor General while 47% had experience in that office.
    • Attorneys from Harvard Law School made 38 appearances – more than any other law school (Yale was second with 30 appearances).
    • Justice Scalia’s former clerks made more appearances (17) than the former clerks of any other Justice.
      • Of note: Thomas C. Goldstein of Goldstein & Russell, PC argued in three cases this term, despite not attending an Ivy League law school, clerking for a Supreme Court Justice, or working previously in the Office of the Solicitor General.

  1. If you’re seeking a cert. worthy case, file a paid petition in a civil case, seeking writ from the U.S. Court of Appeals, and aim for a grant out of conference in the last week of June.
    • Paid cases comprised 86% of the Court’s merits docket.
    • 88% of cases decided this term arose from the U.S. Courts of Appeals.
    • Civil cases comprised 71% of the merits docket.
    • 12 petitions were granted in the last week of June alone; more than any month except October (which also had 12 grants).
  1. The Court is united.
    • 66% of this term’s opinions were released with a 9-0 vote.
      • This is up from 33% in 2008, 48% in 2010, and 49% in 2012.
  1. Work between the Justices was distributed evenly.
    • All Justices had either seven or eight majority opinions, which contrasts with previous terms like 2011 when one Justice had nine majority opinions, another had six, and most others had seven.
  1. Total authorship is down.
    • The Justices collectively authored the fewest total opinions during the Roberts Court era. The Justices authored only 145 total opinions (majority, concurring, and dissenting), lower than their tally from last term (169) or the term before (161).
      • The Justices decided 73 cases this term.
        • 67 were opinions signed after oral argument.
        • 6 were cases summarily reversed without opinion.
  1. Not all circuits are created equal. 
    • The Court affirmed 75% of 7th Circuit cases at the merits stage.
      • The Court only affirmed 27% of all cases this term.
    • The Court reversed 100% of cases that arose from the 3rd and 8th Circuits.

This information was compiled from: Kedar S. Bhatia, Stat Pack for October Term 2013, SCOTUSBLOG (July 3, 2014) and is available in full, here.

Proofreading: 3 Reasons You Need It for Your Next Supreme Court Brief

Last year, the building across the street from Cockle Legal Briefs underwent a major renovation. They threw up a big chain-link fence around the site, and hung out a sign that read:

proofreading

Our proofreaders took it hard. Some began a heated debate; one faction insisting that the intent of the sign-maker is clear and trespassers are barred, while the other side championed a literalist approach, declaring that trespassers are immune from criminal sanction. One poor woman just stared, tears streaming down her pale face—we found her that night dressed in a ninja outfit, holding an over-sized Sharpie, and, as the ambulance pulled away she sobbed, “Punctuation! Please, somebody, insert some punctuation!”

Now, proofreaders are indeed sensitive and odd, but that doesn’t make them wrong. Just the smallest error in a written document—especially a legal document—can result in confusion and unintended meanings. Here are three reasons you should let Cockle Legal Briefs proofread your Supreme Court brief:

Everyone Makes Mistakes. Everyone.

A Supreme Court brief drafter faces a daunting task. You must review all of the relevant elements of the case, research the applicable law, develop a coherent theory that relates the facts to the law, reduce the theory down to a succinct, persuasive narrative, and finally, type it. In that process, errors of form, grammar, spelling and consistency are bound to creep in. We have never seen a proof that did not have at least one note for the drafter to review, and a typical draft has notes on every page.

The drafting process itself is often to blame. Pasting passages from other sources, and combining the efforts of different brief authors and editors can result in inconsistent styles of citation, abbreviation, and so forth. Our readers will compare the elements of the entire brief, and note any inconsistencies for you to address and have us correct.

Mistakes Matter.

Filing a brief in the U.S. Supreme Court is a big deal. If this is your first brief, or your fortieth, you need to be sure that the pages you send to the Court, to counsel, and to your client present both your argument and yourself in the most favorable light. While your brief may not go so far as to inadvertently absolve trespassers from liability, the impression left by drafting errors can overwhelm the textual message you intend for the reader.

Petitioners should be especially sensitive to the need for proofreading. When the Court evaluates a petition for writ of certiorari, the justices must balance many considerations. Yes, they are looking for a legal controversy that warrants the granting of a writ, but they are also looking for a litigant who will be able to thoroughly and professionally present the issues at the merits stage. It is not enough for your argument to convince the Court that you have the right case to resolve the question presented; the overall appearance of your brief must also convince the Court that you are the right petitioner to adequately address the matter on the merits.

Professional Proofreading Is The Gold Standard.

So, you finish the draft, read it, and re-read it. Again. You have your secretary read it. And your partner. Also the summer law clerk. And your mother. Surprisingly, they caught a few mistakes you didn’t see. But surely, your draft has been read by enough smart people, and your brief is now perfect. Right?

Professional proofreaders may not be quite as odd as described, above. But they are very special. They read text differently than the rest of us. They see things. Try our Proofreading Test. Then ask yourself if your brief wouldn’t benefit from having Cockle proofreaders go over the draft. It’s the only way to be sure your filing will make the best possible impression on the Court.

New Petitions Recently Filed by Cockle Legal Briefs

Alberto San, Inc. v. Consejo De Titulares Del Condominio San Alberto, filed on June 27, 2014

The Los Angeles Cnty. Sheriff v. Albino, filed on July 2, 2014

Jackson v. City of New Orleans, filed on July 3, 2014

Supreme Court Ends Its 2013 Term

Annual Supreme Court Terms commence, by statute, on the first Monday of October.  28 U.S.C. § 2 provides:

14“The Supreme Court shall hold at the seat of government a {T}erm of court commencing on the first Monday in October of each year….”

Though Congress never specified on which day a Term should end, the Court prefers to end a Term as soon as all of the argued cases have been disposed of.  Supreme Court Rule 3 provides that “[a]t the end of each Term, all cases pending on the docket are continued to the next Term.”

Typically, a Term concludes shortly after the Court’s last scheduled distribution date in June or July (June 19th this term).  After all final orders have been released (which occurred this morning), Chief Justice John Roberts, Jr. formally announces the Court’s adjournment and the beginning of its summer recess.

While the work of the Court continues throughout the summer, most of the Justices use recess to vacation, teach, and write.  The previous Term’s law clerks train incoming clerks how to write cert. pool memos and deal with last-minute petitions for stay of execution.

Though the Court begins to assign “14-__” docket numbers upon conclusion of the 2013 Term, it will not formally open its 2014 Term until October 6th.

New Petitions Recently Filed by Cockle Legal Briefs

Escobar v. Garcia, filed on June 23, 2014

Chaib v. Indiana, filed on June 23, 2014

Parker v. Cooper Tire and Rubber Co., filed on June 25, 2014

Frappier v. Countrywide Home Loans, Inc., filed on June 26, 2014

In Forma Pauperis v. Booklet Format

After an unfavorable decision by a state’s highest court or a federal court of appeals, the losing party frequently asks itself: “Can’t we take this to the Supreme Court?”

And while countless blog posts could be devoted to various aspects of this important question, one of the first decisions you must make is whether to file your petition in 8-1/2 by 11-inch format or the Court’s 6-1/8 by 9-1/4 inch booklet format.

 In Forma Pauperis (8-1/2 by 11-inch)

 Only parties proceeding In Forma Pauperis (IFP) may file on regular 8-1/2 by 11-inch paper.  Upon a party’s motion to proceed IFP, the Court can elect to waive its $300 filing fee and standard formatting requirements (discussed further, below).  Parties who were granted IFP status in the proceedings below often assume that they will be granted the same status on appeal.  However, the vast majority of IFP applications filed with the Supreme Court fall short of demonstrating the degree of indigency required.

money-tree

While civil cases make up the preponderance of instances in which an IFP application is denied, even incarcerated petitioners in criminal cases with no active source of income have been denied IFP status.  See Gressman, E., et al., Supreme Court Practice, at 564 (9th ed.).  If you wish to proceed IFP, you should understand that the changes of obtaining this status are slim, and if your application is denied, the Court will likely require you to re-file in booklet format in order to docket the petition (check out our blog post on the denial of IFP status).

Booklet Format (6-1/8 by 9-1/4 inch)

 The vast majority of petitions the Supreme Court grants each term are filed in the booklet format and docketed as paid petitions (wherein the petitioner has paid the Court’s $300 filing fee).  According to SCOTUSblog’s October Term 2013 Interim Stat Pack, the Court has granted a total of 71 petitions this term.  Sixty-three of these (89%) were paid petitions while only eight (11%) were on motions to proceed IFP. 

Most empirical analysis of the Court’s docket focuses exclusively on the paid docket, due in large part to the assumption that unpaid petitions are frivolous and not certworthy.  The Court’s unpaid docket garners attention only when a motion to proceed IFP and the petition itself has been granted, after which the Court requires that future briefing be filed in booklet format.

The Court’s rules require that the party filing a booklet format petition ensure that:

  • The text of the brief and appendix is typeset (not photo reduced) in a Century family, 12-point type with 2-point or more leading between lines.  Footnote typeface should be 10-point type with 2-point or more leading between lines.
  • Appendix documents are distinctly numbered from the brief (i.e. App. 1 or 1a).
  • The booklet is printed on paper that is opaque, unglazed, and not less than 60 pounds in weight; has margins of at least 3/4 of an inch on all sides; and the text field, including footnotes, does not exceed 4-1/8 inches by 7-1/8 inches.

Sounds daunting?  It doesn’t need to be.  Send Cockle your documents for a no-cost estimate.  We will typeset them to meet the Court’s strict requirements, proofread, and send you a proof for review.  Call us to discuss your final edits, and we will print and file your petition with the Court and opposing counsel.  We even prepare your affidavit of service and the certificate of word count certification.

Trust Cockle Legal Briefs to produce your rule compliant petition for writ of certiorari to the United States Supreme Court.

The Nuts and Bolts of a Supreme Court Petition

suitcaseNow that summer is here, our minds are on things like what to pack on our next trip, right?  Maybe the last thing you want to think about right now is that approaching deadline to file your petition for certiorari.  But just as you have to fit everything you need into your suitcase for your trip, you have to pack everything you need into your cert petition – your case’s “suitcase” for its trip to the Supreme Court.

The first thing you have to “pack” is a cover.  The cover is the first thing people see, but this is no place to get flashy.  The Court has a very specific look in mind for a petition’s cover.  Supreme Court Rule 34 sets out what a cover must contain.  To summarize, the cover must have the case caption, the nature of the proceeding, type of brief, and the full contact information for the counsel of record.  If you are representing yourself pro se, then you put your name, address, and phone number on the cover.  Attorneys are required to include their email address, in addition to the above.

When you flip the cover open, the first thing you see is the Question(s) Presented section.  If there is a place for attention-grabbing, this is it.  We have recently made entire blog posts on the topic of Questions Presented – here and here – so I won’t spend much time on the topic.  But when it comes to formatting, remember that the Questions Presented must be the first page after the cover and no other brief sections may appear on the same page.  Spend some time on your QP.  Many commentators (including the Justices themselves) say it is the most important part of your brief – sort of like your cell-phone charger when packing for your trip.

Next, there’s the Table of Contents and Table of Authorities.  Generally the Table of Contents will list and provide page references for all of the headings that appear in your brief.  The Table of Authorities does the same for all of the cases, statutes, rules, etc. you reference in your brief.  You might be surprised to learn that the Court does not make any specific requirements when it comes to legal citation style.  Stick with the Blue Book: A Uniform System of Citation and be consistent in your citation methods and you will be fine.

Now that you have your cover and index packed, the actual sections of your brief come next.  The first section is often titled “Opinions Below.”  It does not have to be very long.  Here, you are just providing the citations of the lower court decisions of your case.  If they were unreported, you can just direct the reader to the page it appears on in your appendix.

The next section you need is the Statement of Jurisdiction.  In this section, you tell the Court the date of the decision you are asking the Court to review, the date the lower court denied rehearing your case (if they did), and you tell the Court the statute which confers jurisdiction upon the Court.

Constitutional and Statutory Provisions come next.  In this section, you must set out verbatim (word-for-word) the statute or section of the Constitution you believe the Court you are appealing from misapplied.  This section is important because in order for the Court to review your case, they have to know the exact law that is at issue.

Next, you need to pack a Statement of the Case.  The Statement of the Case sets out the facts of your case that are relevant to understanding your Questions Presented.  If your case originated in the state court system, you must state when and how the federal law issues in your case were raised, and how the courts resolved those issues in your case.  If your case originated in the federal courts, then you must state why the federal district court had jurisdiction to hear your case.

Now you are ready for your argument.  Hopefully you have already captured your reader’s attention with your Questions Presented, and now they are ready to see why those questions should be resolved in your favor.  Most importantly, you need to demonstrate to the Court that there is a good reason to grant your cert petition, i.e., that there is either a conflict between circuits; the lower court’s decision conflicts with Supreme Court precedent; or the case poses a question of federal law that is so important that the Supreme Court should pass upon it, even absent a conflict.

You wrap up your petition with a concise conclusion, usually just respectfully asking the Court to grant your petition.  Attached to the petition is an appendix, which must include the decisions of the lower courts in your case.  You can also attach other documents in your appendix that you think will help the Court decide your case.

Every case’s trip to the Supreme Court is a little different.  Sometimes extra sections are required such as a list of parties or a corporate disclosure statement.  The documents which are required for your appendix can also vary from case to case.  At Cockle Legal Briefs, we are the experts when it comes to the Court’s intricate filing rules.  Contact us for your next brief.

Disclaimer

Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

Cockle Blog will occasionally provide opinions on certain cases and Court procedures. These opinions should be viewed with the recognition that no one can predict with certainty how the Supreme Court will rule on particular cases. Any reliance on articles contained in Cockle Blog must be done at one's own risk.