Appellate Insights

Clients who lose in the Court of Appeal often ask about pursuing review in the California Supreme Court.  The Court grants just a small fraction of the petitions for review that it receives each year.  Here are some factors to consider in assessing the likelihood of your case being one of them:

• Is the Court of Appeal opinion published?  Although the Supreme Court occasionally grants review of unpublished opinions, the odds are much higher with a published (i.e., precedential) opinion.

• Does the opinion disagree with, or inherently conflict with, another published Court of Appeal opinion?  If so, the Supreme Court may step in to resolve the conflict.

• Is there a dissent?  A dissenting opinion automatically bumps a case to the Supreme Court’s “A” list, the short list of petitions that get the closest consideration.

• Is the potential review issue primarily legal, or factual?  A broad legal issue may be a good candidate for review; a fact-specific issue typically is not.

• Does the opinion present an issue that’s already pending before the Supreme Court in another case?  Once an issue is pending, the Court is more likely to take subsequent cases presenting the same issue, as “grant-and-holds”—i.e., to grant review but defer briefing pending a decision in the lead case.

▶ The practical message.  All petitions for review are long shots, but some are longer than others.  Knowing the relevant factors can help guide decisions on when it’s worth the shot.