Sometimes in the course of litigation, lawyers begin to wonder whether their case has a real chance of going to the Supreme Court. Usually the answer is no. But every once in a while, lightning strikes. When your client needs to bring on one of these weather events, there are specific steps you can take to make it more likely to happen. Just as important, when your clients decidedly do not want to take a trip to the highest court in the land, there are things you can do to help them find shelter from the storm. When you find yourself thinking about how to structure a petition for a writ of certiorari—or, just as important, a brief in opposition (BIO)—the best place to start is by reviewing examples from the past. And they are easy to find, for free, on the Internet. A website called SCOTUSblog maintains pages for each case the Court considers on the merits, and each has links to the briefing that convinced the Court to grant review.1 The same blog develops a running list of petitions the authors believe to have a better-than-average shot of being granted.2 It can be instructive, after the Court denies cert in one of those cases, to see what the respondents said to ward off review. If you review examples of cert-stage documents from the past, you will see that the petitioners and respondents tend to use particular buzzwords to describe what is going on. And they tend to focus on the same overarching considerations each time they seek or oppose cert.
Want to convince the Court? Speak its language. Phrases like “entrenched split,” “factbound error correction,” and “vehicle problem” should be in your lexicon.