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«So, you’ve lost your case in the Court of Appeals and you must analyze and advise your client as to whether he has any realistic options for ...»

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Caution: Although rule 39 has been simplified by the amendments made in 2000, just as with the prior rule, if a party decides to file an application for rehearing and is not careful in doing so, he may inadvertently prevent review by certiorari. For example, if there is one fact that the party needs to support his argument for rehearing and/or for certiorari (i.e. some piece of evidence that creates an issue of fact in the summary judgment context, or that distinguishes his case from the case relied upon by the court of appeals, or that demonstrates that an issue was properly preserved), if the party does not include in his application for rehearing a statement of facts which incorporates that fact, then the court of appeals must assume that that fact does not exist. If he doesn’t include a statement of facts in his application for rehearing, he cannot include one in his petition for certiorari, and the Supreme Court must assume that that fact does not exist and deny the petition. If he includes a statement of facts in his application for rehearing, but fails to include it in his petition for certiorari, the Supreme Court likewise must assume that that fact does not exist and deny the petition.

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The petition must be accompanied by a supporting brief. Rule 39(f)(1). M erely refiling the brief filed in the Court of Appeals is insufficient. Bland v. State, 277 Ala.

4, 166 So. 2d 735 (1964). Grounds not argued in the brief will not be considered by the Court even if set forth in the petition. Jackson v. State, 265 Ala. 690, 93 So. 2d 808 (1957). The brief must be in form prescribed by Rule 32(a). The brief must contain all arguments in support of the petition that the petitioner intends to present, both arguments as to why certiorari review is warranted and as to the merits of the issues presented if the court grants the petition. Ala. R. App. P. 39(f)(1)

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The opinion or the unpublished memorandum of the court of appeals (or order of affirmance in a no-opinion case) must be attached to the petition as an exhibit. If rehearing was sought, the order disposing of the application for rehearing also must be attached.

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The petitioner has fourteen days from the date of the decision of the court of appeals (or, if an application for rehearing is filed, fourteen days from the date the application is ruled upon) to file a petition for writ of certiorari. The respondent has fourteen days to file an initial reply brief opposing the petition. This initial brief is limited to the issue of whether any proper ground for certiorari review exists. Ala. R.

App. P. 39(f)(2). Rule 32(a) prescribes the form and length for this reply brief.

The Supreme Court may not enlarge the time for filing a petition for certiorari, Ala. R. App. P. 26(b), and if a petition for certiorari is not timely filed, it must be dismissed. See Accardo v. State, 268 Ala.. 293, 105 So. 2d 865 (1958). A petition for certiorari is timely if it is received in the clerk’s office by the due date. The petition is considered to have been received on the date post marked if certified, registered or express United States mail is utilized. Ala. R. A pp. P. 25(a). Use of a commercial delivery service does not toll the time for filing, so if a commercial service is used, the petition must be received in the clerk’s office by the due date. Facsimile transmission does not equate to filing. See Ex parte Tuck, 622 So. 2d 929 (Ala.

1993).

VI. Miscellaneous Certiorari review serves a law-correcting function. The purpose of certiorari review is not to assure that the lower court reached the correct result in this particular case, but to review errors of law that set dangerous precedents. Thus, the focus of your petition and argument should not be on why the result reach was wrong or inequitable to your client in this particular case, but on why the precedent set by the lower court’s alleged error is wrong in the whole scheme of the law (in addition to being wrong and/or inequitable to your client). Don’t make a jury argument.

Review by certiorari is discretionary. Even if one of the jurisdictional bases for certiorari review exists, the court has the discretion to deny certiorari, so you have to make the court want to take your case. You do that by demonstrating that a dangerous precedent has been set by the lower court.

Don’t attack or be disrespectful of the lower court (i.e. focus on why the court’s analysis or rationale is flawed, not on how stupid the court was in reaching its conclusion.

The Supreme Court will consider on certiorari review only issues that were first raised in the intermediate appellate court. While the Court of Appeals need not have addressed the issue, the issue must have been properly raised and argued to that court. See Ex parte Liberty Nat’l Life Ins. Co., 797 So. 2d 457 (Ala. 2001)(refusing to review the issue of justifiable reliance because the petitioner did not raise that issue before the Court of Civil Appeals).



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