December 1, 2010

Is it worthwhile to file a reply in support of a petition for review?

When seeking review from the California Supreme Court, should you go to the time and expense of filing a reply in support of your petition? The answer is not entirely obvious, especially given the expressed view of some Supreme Court research attorneys that they don’t understand why so many answers to petitions for review are filed (they have said that whether a case is review-worthy can usually be determined from the petition alone).

On the one hand, the reply in support of a petition for review is in the running to be the most obscure and least relevant brief that can be filed in the Supreme Court. At the petition for review stage, obviously the only goal is to obtain review, not to prove that your client’s position is correct. And in a typical case, the petition and answer probably give the Court all the information it needs to decide whether to grant review of the issues presented. Indeed, it is not uncommon for a petition to be acted upon quite soon after the reply has been filed (even the next day), raising serious doubts that the reply could have had any impact on the Court’s consideration of the petition.

So, this being the case, why would it ever be worth the time and expense to file a reply? The reason is simply this: your petition could be one of the select few in which the Court is actually considering granting review, and you can never know for certain whether that is the case. Assuming the Court is considering granting your petition, the Court may well devote significant time and attention to both the answer and your reply to discern if there is any reason why your case would not be a good vehicle for deciding the issues presented. It would be extremely unfortunate to fail to obtain review in such a situation when you already have the Court’s full attention. Therefore, our preference is to file a reply in support of a petition for review even though, in the vast majority of cases, we suspect that it will make no difference.

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