The Maryland Daily Record published in an interview on Friday with Maryland Court of Appeals Chief Judge Robert M. Bell who had some interesting comments on seeking certiorari that I think would be of interest to any personal injury lawyer seeking appeal to a higher court where the appeal is not a matter of right. Below is an excerpt of that interview as it relates to petitions for certiorari:
Question: What are the most important points that lawyers and their clients should bear in mind when preparing a petition for certiorari?
Answer: When drafting a petition for certiorari, one should focus on getting the court interested in the case, so one should be focused on what makes that case unique. And the more one is able to do that concisely, the more likely it is that the court is going to be inclined to grant certiorari. Also, bear in mind that the court is not going to be particularly interested in reviewing the case if it has 10 or 12 issues; the fewer points of interest, the more likely it is that we will take the case.
Question: What is the biggest mistake lawyers make in the petition for certiorari?
Answer: I think they don’t realize that you don’t have to present a long petition; rather, you only need to highlight that your case involves an issue that is critical or interesting to the bench and/or the bar. Focus on that. In order to pique the court’s interest, one should focus on crafting the fact pattern, along with the legal underpinning of the case, both of which can effectively crystallize the issue being presented for certiorari.
Question: Which is more important to the court when considering a petition for certiorari, the argument presented in the petition or the highlighting of the public policy issue involved?
Answer: I think it is a little bit of both. I think it is a combination of both because you don’t have much of a chance of getting the petition granted unless you can show that it is an important issue. However, it need not necessarily be an issue of public policy. It could be an issue involving a novel interpretation of the law.
I think the point is that you have to put yourself in the role of the judges. Personal injury lawyers are wrapped up in how the outcome will impact their clients but it will be hard to get the attention of the Maryland Court of Appeals if the impact of the case does not go beyond effect on the parties to the case. A petition for certiorari is a foreign form of legal advocacy for the personal injury lawyer because the fight is not to win the case. The end game of the petition is not to persuade the court that the Maryland Court of Special Appeals (our intermediate appellate court for non-Marylanders) was wrong in their holding. Instead, a cert petition should focus on persuading the court that the case matters not only to the instant litigants, but future litigants for years to come.