Some special considerations may apply if your brief is in support of a petition for discretionary review— commonly, though not universally, called a petition for certiorari (or cert petition). Some jurisdictions purport to grant all such petitions in which there is a substantial possibility of error below. If that is the announced policy of your jurisdiction (and if you believe it), your brief, like a merits brief on appeal, should simply seek to persuade the court that the judgment below is wrong.
But some courts as a matter of policy, and others as a matter of practice (whatever their policy states), generally limit discretionary appeals to cases raising significant issues of law—issues that deserve to be addressed by the highest court or on which the lower courts have disagreed.
When you are confronted with a certiorari policy of this sort, it is utterly inadequate merely to show that the decision below is wrong. That might suffice in a very rare case, but not ordinarily a sufficient condition, it is not even a necessary one. A court of last resort will frequently grant review in a case that it believes has been decided correctly. It is interested in providing needed clarification of the law, and that can be done just as well by affirming the correct rule as by reversing the incorrect one.
To have a significant chance of success, you must show that the error you complain of consisted in the adoption of an erroneous rule of law, not merely the erroneous application of a rule correctly expressed. It must, moreover, be an important rule of law, not an insignificant one. Even then, your chances are pretty slim unless you can further show that other inferior courts have applied inconsistent rules.
Your outline should zero in, therefore, on these issues, rather than on the merits of your position. There will be time enough to argue the merits in great detail if discretionary review is granted. Your first task is to get in the door. Of course, the merits of the case must be argued to some extent, but not nearly in the depth that would be expected in a merits brief. And if none of the normal certiorari factors are in your favor, you may have to take a shot at getting certiorari granted simply because the case was so wrong. But that is normally a very long shot indeed, rarely worth your client’s expense.
If you’re dealing with a certiorari court that takes cases to resolve lower-court conflicts on points of law, and not to revise erroneous judgments, you must exclude prior issues that might make it impossible to reach the rule of law on which there is conflict. Of course, you shouldn’t introduce those issues on your own—for example, by attaching to a certworthy constitutional issue an appeal from the lower court’s ruling on a noncertworthy statute-of-limitations point. Since constitutional issues should not be reached unnecessarily, if the court granted certiorari on both points it would have to consider the statute-of-limitations point first—and if it is found for you on that, it would never reach the certworthy issue. It is unlikely to want to do that. If it had the power to cherry-pick issues, it could simply deny certiorari on the statute-of –limitations point and grant only the constitutional issue. Again, bear in mind that courts don’t like to spend a lot of time deciding what to decide. If it seems fairly certain that review of the statute-of-limitations point will not be granted, leave it out.
Some prior issues, however, cannot be avoided—such as those relating to jurisdiction and those that the respondent will raise to sustain the judgment. Sometimes the certworthy issue is presented only if another (noncertworthy) finding or holding of the lower court is first overturned. It is of major importance for the practitioner to lay to rest its brief any doubts about the existence of such troublesome prior issues. And it is of major importance for the respondent to point out that there are these hairy and insignificant issues that the court would have to deal with before it reached (if it ever could reach) the certworthy issue in the case.
Antonin Scalia and Bryan A Garner