Be sure that the Tribunal has Jurisdiction
Nothing is accomplished by trying to persuade someone who lacks the authority to do what you’re asking—whether it’s a hotel clerk with no discretion to adjust your bill or a receptionist who cannot bind the company to the contract you propose. Persuasion directed to an inappropriate audience is ineffective.
So it is with judges, whose authority to act has many limitations-jurisdictional limits-relating to geography, citizenship of the parties, monetary amount, and subject matter. From justices of the peace to justices of the supreme courts, judges face as a first task to be sure of their authority to decide the matters brought before them and to issue the orders requested. If they don’t have that authority in your case, you don’t just have a weak case, you have no case at all.
Most weak points in your case will be noted by opposing counsel, giving you a chance to reflect on them and respond. If opposing counsel does not protest a particular point, the defect will often be regarded as waived. But a defect in subject-matter jurisdiction is a different matter altogether. An opposing party often has no interest in challenging jurisdiction, being as eager as you are to have the court resolve the dispute. But in many courts (including all federal courts), absence of subject-matter jurisdiction, unlike most other defects, cannot be waived. And in some of those courts (including all federal courts), even if no party raises the issue, the court itself can and must notice it. Nothing is more disconcerting, or more destructive of your argument, than to hear these words from the bench: “Counsel, before we proceed any further, tell us why this court has jurisdiction over this case.” You need a convincing answer to this question—and preferably a quick and short one—or else you’re likely, in the picturesque words of the lawyer’s cliché, to be poured out of court.
Two caveats about jurisdiction: (1) Jurisdictional rules apply in appellate courts as well as in trial courts. The Supreme Court of the United States, for example, has jurisdiction over a state-court decision (involving a federal question) only when that decision is final, and only when there is no adequate and independent state-law ground for the judgment.
(2) Defendants and appellees are much more likely to ignore jurisdictional requirements than are plaintiffs and appellants. But jurisdiction is just as important to them, and they must attend to it.
The rules of the Supreme Court of the United States require briefs to set forth, immediately after the description of the parties, the basis for the Court’s jurisdiction. Even if the court before which you are appearing has no similar rule, it’s good practice to pretend that it does and to identify the law, and the facts, that render this original action, or this appeal, properly brought before that court. Keep that information handy in case the court asks.
We acknowledge Antonin Scalia and Bryana Garner.