Appellate Insights

Lawyers don’t like to leave arguments unanswered. But a petition for California Supreme Court review is a special animal. About 95% are denied, and almost all of those would have been denied even if they’d been left unanswered. Answers are optional, and some Supreme Court staff attorneys take the view that they rarely need answers, because the Court monitors appellate opinions and knows what issues need review, and even what kinds of cases would be the best vehicles to decide them.

Here are a few more considerations when deciding whether to recommend answering a petition:

• If the appellate opinion neither creates nor contributes to a conflict in the case law, and you believe the petition’s weakness is obvious, an answer may not be worth the expense.

• On the other hand, if there is a clear conflict in published precedents, that’s often a strong case for answering—to attempt to show why the issue doesn’t matter enough to review, or why this isn’t the right case in which to do so. But even here, the appellate court winner might prefer a Cal. Supreme Court precedent if it could get one. Or it might simply prefer to control briefing on the issue at the Cal. Supreme Court, knowing that review is inevitable sooner or later.

• A good reason to answer may be to correct misstatements about the client’s situation or industry that the Supreme Court may not realize are wrong.

• If a party doesn’t file an answer, the Court will sometimes request one.  But it also sometimes grants review without doing that, so a second chance is not a certainty.

► The practical message: Don’t reflexively answer any petition for review filed against your client. Instead consider carefully whether to answer in light of Supreme Court practice and the client’s goals.