Example 15.4

Takeaway point 15.4: When trying to convince a court to exercise its discretion to hear your case, focus on broad problems that the lower court’s opinion will create unless it is reversed.

Appellate courts are required to hear some challenges, but not all. When these courts determine their own dockets, you need to convince judges to exercise their discretion to hear your case.

We see below some of the elements that affect a judge’s calculus as to whether a case is worth reviewing. Xerox refused to license parts or patents to companies that repaired its copiers. It wanted to control the lucrative business of repairing jammed and busted copiers. A company called CSU wanted to compete against Xerox, so it filed a lawsuit claiming that Xerox’s practices violated antitrust laws. After Xerox won on summary judgment and on appeal, CSU asked the Supreme Court to hear the case. The initial petition reflected a typical request to hear a case, beginning with this sentence: “This petition calls upon the Court to resolve a direct conflict among the courts of appeals over a recurring question of national importance.... ” But the following example reflects the more-interesting and challenging task of getting the Court to hear a case after it asked for the Solicitor General’s view and the Solicitor General advised the Court not to hear the case.

Source: Supplemental Brief of CSU in Support of a Petition for a Writ of Certiorari from CSU L.L.C. v. Xerox Corp., 531 U.S. 1143 (2001) (some citations removed).

The certiorari petition follows the classic strategy of trying to win before rebutting. The brief observes that the Solicitor General confirmed that the legal issue is important and that the case created a circuit split.

This playful transition draws a clear line: the previous paragraph outlines the issues on which CSU and the Solicitor General agree, but now shifts into how and why they disagree. In addition to marking this shift, the sentence is designed to defuse the tension of disagreeing with the government by adding a bit of lightheartedness. The sentence also exemplifies that, when using cultural references, lawyers should provide a large hint so that readers will grasp the point even if they don’t know the reference. That the phrase “ends with a bizarre twist” helps readers to grasp the brief’s point whether or not they have read O. Henry’s stories.

This paragraph presents a stark choice: deny the petition and allow confusion to reign in the lower courts, or grant the petition and provide clear instructions to the judiciary.

The brief emphasizes that the FTC’s Chair has decried the lower court’s opinion. Several hints suggest that something else is motivating the Solicitor General’s “bizarre” position. The Solicitor General’s brief opposing certiorari was filed in the final weeks of President Clinton’s administration; the Department of Justice may have preferred to preserve the Ninth Circuit’s anti-monopolist decision in Image Techincal Services rather than risk letting the incoming laissez-faire Department of Justice officials litigate this case at the Supreme Court.

This paragraph presents another persuasive reason for granting certiorari: the administrative agencies charged with enforcing antitrust laws disagree on critical issues affecting enforcement.

This conclusion emphasizes a number of common, traditional grounds that lead the Court to hear a case.