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Every appellate lawyer eventually faces it: the unfavorable opinion, an unhappy client, and the question of what to do next. For California practitioners, the reflex may be to file a petition for rehearing or seek review in the California Supreme Court. Those petitions are often the last procedural options before remittitur issues — but they are not always the right move.

The difficult part is knowing when the fight is worth continuing. A post-opinion petition should not be driven by frustration with the result or a belief that the court simply got it wrong. It should be driven by the specific grounds that make rehearing or review realistic. The following guidelines can help practitioners decide when to recommend that extra step, and when to tell the client that the better course is to stop.

Petitions for Panel Rehearing

A petition for rehearing asks the same panel that issued the opinion and resolved the appeal to “rehear” the matter and is due within 15 days from the decision. Given that the panel is the same, it should go without saying, that such petitions are very difficult to have granted. After all, the panel would have sided in your client’s favor initially if such a petition merely repeats the arguments raised in the appeal.

Though there are other less common grounds provided in the Rules of Court, panel rehearing will generally only be granted if the petitioner can identify either (1) a misstatement or omission of a material fact, or (2) a mistake of law.

Therefore, best practice is to review the Court’s opinion thoroughly and determine whether it makes a material mistake as to a point of fact in the record, or as to a legal issue. Materiality is key — simply because the panel made an error is not itself sufficient. The factual or legal error must be significant enough to convince the panel that the outcome of the case would be different.

If the opinion does not contain such errors of fact or law, or the error is not material, then clients should be advised that such a petition is extremely unlikely to be successful.

Petitions for Review

Petitions for review, which are due within 10 days after the Court of Appeal’s decision becomes final, require a different strategic assessment. Supreme Court review is discretionary, and the Court grants review in only a small percentage of cases each year. Unlike the Courts of Appeal, the Supreme Court is not a court of error correction. As a result, even a poorly reasoned opinion may not warrant review. The most common mistake in petitions for review is to argue only that the Court of Appeal got it wrong, without explaining why the case fits within the grounds for granting review.

The two most common grounds for obtaining review in the Supreme Court are when there is a conflict in the law created by the opinion, or to address an issue of statewide importance. Generally, a published opinion is more likely to lead to a grant of review, though the Supreme Court sometimes grants review over unpublished opinions.

As to the first ground, it is important to assess whether the appellate opinion directly conflicts with a ruling in another appellate court. If the split is expressly stated in the opinion, even better. But in most cases, an opinion merely distinguishes other rulings, which does not create a strong basis for review. The Supreme Court prefers to resolve genuine splits of authority so that the law is applied equally across lower courts.

As for the second ground, most practitioners and parties believe their appeal is important. After all, they expended the cost to take the appeal, or defend it. But from the Supreme Court’s perspective, an issue of statewide importance is one that will affect a large number of future litigants. Sometimes this means the subject matter is important — for example, constitutional issues are fertile ground for Supreme Court review. But sometimes it can be mundane procedural issues — the important consideration is whether the ruling will apply to a broad group of people in future disputes.

Conclusion

Because petitions for rehearing and petitions for review have very low success rates, practitioners should carefully consider whether to recommend that their clients incur the cost of preparing them. Focusing on the recognized grounds for rehearing or review, rather than simply on the perceived value or correctness of the opinion, will help practitioners make that assessment and provide sound guidance to their clients.

For More Information, Please Contact:

Patrick Burns

Partner

San Francisco, CA

Sacramento, CA