National Association of Attorneys General
U.S. Supreme Court Brief Writing Style Guide
There are few tasks more daunting to a lawyer than being asked to write, for the first time, a U.S. Supreme Court brief. You know that, whether it’s a petition for certiorari, a brief in opposition, a merits brief, or an amicus brief, your product will be read by Supreme Court Justices and could eventually affect the law throughout the entire nation. You therefore want it to be as well written as possible.
The most obvious way to accomplish that is to research the legal issue thoroughly, devise creative and persuasive arguments, and craft a well-organized, well-reasoned, and engagingly written brief. That’s what you hope to prepare, of course, in every case regardless of the court; but it’s particularly expected in the Supreme Court.
That isn’t enough, though. The U.S. Supreme Court, like most other tribunals, has its own traditions, customs, and practices that are well known to regular practitioners but not to outsiders. If you want your brief to be as effective as possible, you want it to conform to those traditions, customs, and practices. Failing to follow them might not be as off-putting as typos; but they equally tell the reader — the justice or clerk — that you don’t truly know how the game is played there.
As NAAG Supreme Court counsel for the past 20 years, I have had the opportunity to read literally thousands of Supreme Court briefs. This guide is an effort to pass along insights I have thereby obtained on the “style” of these briefs. Most briefs filed with the Court are nicely written and follow the Court’s protocol. Others, however, do not — including some written by state attorney general offices. I have seen virtually every mistake a brief writer can make, on both substance and style. My goal in this series of articles is to point out common mistakes of style so that, at the very least, your briefs will adhere to the Court’s conventions.
Let’s begin at the beginning: the cover page and Question Presented.
The Cover Page
Don’t worry; we won’t be spending much time on this. For the most part, what goes on a cover page of a Supreme Court brief is obvious and can be gleaned from looking at virtually any brief filed with the Court by the U.S. Solicitor General’s office or an experienced Supreme Court practitioner. What can go wrong? A few things, actually.
But let’s start with what the cover page should look like. Here’s a properly executed cover page in a recent merits brief filed by the Michigan Attorney General’s office.
Simple enough, or so it would seem. And yet over the years I have seen many errors on cover pages. Here are some things to remember:
- Do not include the state bar numbers of any of the attorneys listed on the cover page. Your state courts might want them, but the U.S. Supreme Court does not.
- Do not include, across from the signature block, an additional block saying “Please serve: [name, address].”
- Do not place at or near the top of the page the words “October Term 2015” (or whatever Term you think it is). The Court used to require that the cover page set out the Term, but eliminated that requirement when it realized that no one could figure out what to write in the summer, when the Court is in recess but the Term is not officially over.
- Do provide the email address of the counsel of record; do not provide a fax number (who faxes things anymore?). See Supreme Court Rule 34.1(f).
- In a capital case, the words “Capital Case” appear above the Question Presented; they do not appear on the cover page.
- The fourth component of the cover page (after the case name) is what Rule 34.1(d) calls “the nature of the proceeding and the name of the court from which the action is brought.” At the certiorari stage, it should say (for example), “On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.” At the merits stage, delete “Petition for”; it should read “On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.” Many a counsel has forgotten to delete those two words when they prepared the merits brief.
One final pointer. The fifth component of the cover page is the name of the document. These should be: “Petition for a Writ of Certiorari”; “Brief in Opposition”; and “Brief for the Petitioner [Respondent].” Reply briefs at the merits stage are generally called “Reply Brief for the Petitioner”; at the cert stage, I have seen well-regarded practitioners put “Reply Brief”; “Reply Brief for the Petitioner”; and “Reply to Brief in Opposition.” (Some folks say “Brief for Petitioner”; others say “Brief of Petitioner. Either way is fine. And some folks say “Brief for the Petitioner”; others leave out the word “the,” so it reads “Brief for Petitioner.” Again, either way is fine.)
Multi-state amicus briefs are a bit trickier to name. Some begin, “Brief of [or for] the States of _____ as Amici Curiae in Support of Petitioner [Respondent].” Others begin, “Brief of Amici Curiae States of _____ in Support of Petitioner [Respondent].” (The difference, for those of you who haven’t had your coffee yet, is the placement of the words “Amici Curiae.”) Either way is fine. Also, some multi-state amicus briefs list on the cover page the names of all the states that join the brief; others list only the name of the lead state, followed by the number of additional states that join (e.g., “Brief of Amici Curiae State of Michigan and 19 Other States in Support of Respondents”). Again, either way is fine, though I’m partial to the former approach.
Enough of cover pages. On to . . .
The Question Presented section is a very important part of a cert petition. Typically, it is the first thing the Justices and their clerks read and generates that all-important first impression. Justice Brennan reportedly said that he knew immediately after reading the Question Presented whether he would vote to grant certiorari.
At the merits stage, crafting this part of the brief is less important. The petitioner is stuck with the question(s) he or she wrote at the cert-stage; and the Court rarely cares if or how respondent recasts it. Nonetheless, the questions presented can matter greatly to counsel at the merits stage because they demarcate the issues before the Court. Many a counsel has had to explain at oral argument why a particular argument she is making is “fairly subsumed” within the question presented.
With all that said, my goal here is not to explain how to write a first-rate question presented. This is a guide on style. A bit of what follows may bleed into substance, but my focus will remain on how the Question Presented section should look. Here is an example of a properly written Question Presented section, from Utah’s successful cert petition in Utah v. Strieff.
That seems, once again, simple enough. But inexperienced Supreme Court practitioners are quite skilled at finding ways to write this section in ways that don’t conform to Supreme Court style.
- The natural place to start is with the section’s name. It is “Question[s] Presented.” That’s it. It is not “Question Presented for Review.” If you are the respondent, it is not “Question Presented (restated)” or “Counterstatement of Question Presented.”
- And don’t underline the heading “Question Presented” (or any of the other main headings of the brief, such as Statement of the Case, Summary of Argument, Argument, and Conclusion).
- Please, please, please do not put the questions in all caps. Sentences written in all caps are very hard to read; and it is simply not the accepted style at the Supreme Court. Reading questions in all caps gives judges a headache.
- A few words on numbering the questions. First, if you are presenting only one question, do not place the number “1” before it. Second, if you are presenting multiple questions, they should be listed as Arabic 1, 2, etc., not Roman I, II, etc.
- If you are citing a case, provide the full citation (e.g., “Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled.”).
- Don’t place any footnotes in the Questions Presented. I’ve seen briefs, for example, that refer to “Miranda” warnings in the body of the question and insert a footnote that contains the full cite to Miranda v. Arizona. No. Either give the full cite to Miranda in the body of the question or simply say “Miranda,” knowing that everyone will understand what that means.
A few other matters of style don’t come down to right and wrong, but personal preference.
- Many cert petitions include in the question a reference to a circuit split. For example, a recent, successful cert petition presented the following question:
Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held? [Emphasis added.]
- Some practitioners prefer including circuit-split language of that sort; others do not. Both ways are acceptable.
- 2. The “Whether” vs. “Does” debate. A recent question presented to the Court was, “Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.” The question could easily have been rephrased as, “Does the First Amendment bar the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?”
- Either way is fine. My only suggestion is that if you use the “Whether” approach, do not end the sentence with a question mark; use a period. (That’s because the sentence is implicitly saying, “The question presented is whether the First Amendment bars . . . .” That’s not a question; it’s a statement about what question is being presented.)
- 3. The question should be worded exactly how you want it to appear in the merits brief, if cert is granted. That means, among other things, that you should not begin the question with phrases such as, “Should this Court grant certiorari to . . . .” or “Should this Court resolve a conflict between . . . .” Phrases like that make no sense at the merits stage.
- 4. Many excellent Questions Presented begin with a prefatory paragraph or two before setting out the actual question(s). The Court is quite used to receiving questions in that form and is fine with them. A few caveats, though.
First, not every case requires a prefatory statement. As in the Utah example, straightforward criminal procedure issues don’t need much of a set-up. (By contrast, petitions based on lower court failures to apply AEDPA usually do.) If you don’t need one, don’t include one. In the Supreme Court, as in all courts, less is usually more.
Second, a prefatory statement is not a Summary of Argument. Its goal is to provide the background information that allows the reader to understand the issue being presented. If the question concerns the meaning of a complicated statutory provision, it is often helpful to describe that provision first. An example of a successful cert petition can be found in Jesinoski v. Countrywide Home Loans, Inc.
Note that the prefatory paragraph didn’t argue the merits of the case. It simply set out enough of the statutory background to allow the reader to understand the statutory-interpretation issue.
Having said that, I am seeing more and more argumentative prefatory paragraphs in cert petitions filed by experienced practitioners. My view is that, just as a Statement of the Case should be non-argumentative but subtly suggest to the reader that your position is correct, so can a Question Presented section. But the Question Presented section is generally not the place to argue your case directly. An exception is where the petition’s core argument is that the lower court decision directly conflicts with a U.S. Supreme Court decision. Your Question Presented might then describe the Supreme Court decision in a prefatory paragraph, describe the lower court decision, and then ask “whether, in holding X, the state supreme court decision directly conflicts with this Court’s decision in Y.”
Third, if possible keep the Question Presented section to one page. Although the Court does not bar Question Presented sections that hit a second page, it disfavors them.
Fourth, after the prefatory discussion, add the sentence, “The question presented is:”. It can come at the end of the prefatory paragraph(s) or come (as in the earlier example) in a stand-alone paragraph. Either way, that’s the proper transition from background material to the actual question being presented.
That’s all for now. Next time, the Statement of the Case.