The U.S. Supreme Court Rules describe an utterly unique and highly specific set of practice standards. Every new filer—whether she is a seasoned litigator with years of experience in the lower courts, or a pro se petitioner—should review the Rules to make sure the document will be accepted by the Clerk. However, many of the idiosyncrasies of practice in the Supreme Court can leave the new filer more than a little confused, even after a close reading of the Rules. The experts at Cockle Legal Briefs review every draft to make sure the briefs we print adhere to all of the Supreme Court Rules. Here are some common misunderstandings we encounter:
First, The Big One: Rule 13 gives petitioners ninety days to file. NOT three months. If you calendar your due date for the same date three months after your lower court judgment, denial of rehearing, or denial of discretionary review, you will usually* miss your jurisdictional filing deadline. If you are not sure about your due date, give us a call so we can run it through our calculator to confirm your deadline.
Another frequent mistake, even for regular amicus filers, arises from a misreading of Rule 37, governing amicus briefs. In most respects, the requirements of Rule 37.2—dealing with petition-stage amicus briefs—mirror those found in Rule 37.3—applying to merits-stage amicus briefs—with one important exception: at the petition stage, amici are required to give the parties ten days’ notice of intention to file. This requirement is independent of obtaining the parties’ consents, and the Rules do not provide for a party’s waiver of the notice requirement. Furthermore, while government amici are excused from the consent requirement, they still must give ten days’ notice of intent to file, and they must aver to that notice in the brief.
A certain class of respondents must also give notice. Under a recent revision to Supreme Court Rule 12.6, respondents who were aligned with the petitioner below, and who support the grant of a petition, must give the other parties notice of their intention to file a respondent’s brief in support. But with a quirky twist to the notice scheme, the Supreme Court Rules mandate notice within twenty days of docketing, not ten days before filing. A similar deadline, but not always the same.
Phantom Rules: You’re Sure They’re There, But They’re Not
Old habits die hard, and an attorney who has practiced extensively in the lower courts might simply assume that the U.S. Supreme Court applies the same requirements found in other courts.
For example, federal appellate litigators are familiar with the electronic Pacer filing system used in the federal district and circuit courts. But the U.S. Supreme Court Rules do not provide for electronic filing. Filers must send paper documents to the Court and to service recipients. Recently, the Court began requiring filers to email a separate PDF version of their document to service recipients, in addition to the paper service. And at the merits stage, the Court asks filers to email a PDF copy to the Clerk’s Office, but Rule 25.9 makes clear that the PDF does not replace the paper filing. And these PDF’s are directly emailed, not uploaded onto Pacer or some other document-management system.
Another common practice in the lower courts is to file an appendix that includes every document referenced in the brief. This is not the practice in the U.S. Supreme Court. The requirements for an appendix to the petition—the only type of brief that must include an appendix—are fully laid out in Supreme Court Rule 14.1(i). Basically, the appendix must include the opinion or order being appealed, the final orders or opinions from the other courts below, and any order denying rehearing or discretionary review.
Rules That Say…Well…Something
Some Supreme Court Rules can be a little impenetrable. Rule 33.1 requires booklet briefs to be printed on 60-pound paper, bound in 65-pound cover stock. So if your petition runs to say, eighty-five pages, and you file forty copies with the Court, the poor clerk will need to process over 100 tons of documents!
Actually, no. In the printing industry, we describe paper thickness in pounds, expressing the weight the paper would have over a certain number of sheets, not the mass of each sheet.
But what’s that part about 2-points of leading between the lines (Rule 33.1(b))? Pronounced like the metal surrounding panes of stained glass—not like the questions only permitted on cross examination—leading is a very old printer’s measurement from a time when printers inserted strips of lead between lines of type.
The Cockle family began printing legal briefs in 1923, so we know how navigate the Supreme Court Rules. Let us help you make sure your brief conforms to all of the Court’s requirements.
* If the initiating event occurs in the January of a non-leap year, the December before a non-leap year, or in any February, three months is within ninety days.