“Don’t settle for style. Succeed in substance.”
Wynton Marsalis (Jazz artist)
When part of your employment revolves around reviewing the covers of U.S. Supreme Court briefs, you start to take notice of things like New Century Schoolbook font, diamond lines and all caps versus initial caps. But it’s not just style that differentiates a good brief cover from a bad one; there is a little substance, too. This post covers both.
The Supreme Court is incredibly particular when it comes to what must be included on a cover. According to Rule 34.1, each cover shall bear: (1) a docket number, or if it is a petition, a space for one; (2) the Supreme Court’s name; (3) the caption; (4) the nature of the proceeding and the name of the court which issued the judgment to be appealed; (5) the document title; and, (6) attorney information.
This seems easy enough, but as with most things at the Supreme Court level, “God is in the detail.” The caption, for example, must not merely recite the caption in the lower court, it must explain the adversarial nature of the case in the Supreme Court—that is why Rule 34.1(c) says the caption must be listed “as appropriate in this Court.” Also, the Court, and especially the Clerk’s Office, could not care less about designations such as plaintiff, appellant, and intervenor; those designations should not be included in the caption, because the Clerk’s Office is concerned only with petitioners and respondents, and the accompanying due dates for each. Here are two tips on captioning the case: (1) all parties not petitioning the Court are considered respondents even if those respondents support the petition, see Rule 12.6; and, (2) if you cannot reasonably list the parties on the front cover, you can designate a party as “et al.”, and carry those parties over to the “List of Parties” page, see Rule 14.1(b).
This past February, the Court changed their Rule requiring the attorney information that must be listed on the cover. The Court now requires all Counsel of Record to add their email address in addition to the previous requirements of counsel’s office address and telephone number. Rule 34.1. While I have yet to see the Clerk’s Office reject a filing for failure to list an email address on the front cover, given the widespread online publication of briefs these days, no one wants to be the person who did not comply with the Court’s rules on the very first page. Now to matters of taste.
Although the Court requires that in all paid cases the briefs must be typeset in a Century family font, see Rule 33.1(c) (most use New Century Schoolbook because that is the font the Court uses), there is an unwritten but accepted exception from this Rule for the Court’s name on the front cover. The majority of brief producers, including the Solicitor General’s Office and Cockle Printing, use an Old English font for the Court’s name. I was unable to determine how this tradition began, but however its beginnings, it is now orthodoxy—in the 2009 Term, for example, 146 out of 172 merits briefs had the Court’s name in Old English on the cover. Some, like the SG’s Office, place the Court’s name on one line, and others separate the Court’s name into two lines.
Unlike the use of Old English, there seems to be no consensus on how to format the line explaining the nature of the proceeding and the name of the court from which the action is brought (“Proceeding Line”). Rule 34.1(d) places the Proceeding Line in Title Caps as an example, but some litigants place the Proceeding line in All Caps, some in Initial Caps, some in Title Caps, and some in Small Caps. Even the terminology is in dispute. The Supreme Court Practice book advocates a rule that when a petition is filed the Proceeding line should say: “Petition for a Writ of Certiorari to the…”