On Appellate Practice: Deciding Whether to Bring a Petition for Review

Robert Mandel

By Robert A. Mandel

Robert A. Mandel is co-founder of Mandel Young plc (www.mandelyoung.com), a Phoenix-based appellate law firm. Known for his potent advocacy, Rob routinely appears in business, constitutional and public law disputes pending in the federal and state appellate courts, where he handles appeals of final judgments, preliminary injunctions and other interlocutory decrees, petitions for writs of certiorari (review) and mandamus (special actions), certified questions, motion practice, and the representation of amici curiae. Rob also is retained as appellate counselor-in-residence, working collaboratively with litigators to optimize their cases for trial and appeal and undertaking primary responsibility for critical projects, including dispositive motions.

While plenty has been said by the experts about what a petition for review to the Arizona Supreme Court should look like, the issue of whether one should seek review in the first place receives less attention than it deserves. For many practitioners, the decision whether to recommend the filing of a petition for review to the client usually turns on two broad considerations: did the Arizona Court of Appeals “get it wrong” and can the client absorb the additional fees and costs. But, although it is true that any party who believes a Court of Appeals decision was wrong can file a petition for review, it doesn’t mean that they should, even if they can afford to do so.

The Arizona Supreme Court grants very few petitions for review, rarely more than two or three each month on average. This is so, not because the several hundred civil and criminal petitions the Court receives on an annual basis (in 2012, for instance, the Court received 827 petitions, civil and criminal, and in 2011 it received 681) fail to identify problems with the decisions being challenged, but because error is only one of several factors the Supreme Court takes into consideration. ARCAP 26(c)(3) focuses on four reasons that a petitioner might advance to persuade the Arizona Supreme Court to grant the petition—i.e., that (a) “no Arizona decision controls the point of law in question,” (b) “a decision of the Supreme Court should be overruled or qualified,” (c) “conflicting decisions have been rendered by the Court of Appeals,” or (d) “important issues of law have been incorrectly decided.”

While the rule employs permissive language—i.e., “may include, among others”—in addressing the reasons-for-review section of the petition, experience demonstrates that a petition that fails to advance at least one of those four reasons stands a comparatively lesser chance of being granted than a petition that does. The process of identifying such reasons can be laborious and usually requires extensive legal research as well as familiarity with legal trends and public policy considerations. Further, it is worth emphasizing that, although the fourth reason articulated in the rule speaks of “incorrectly decided” issues, the language is qualified by the word “important.” Of course, “important” in this context means important to the law, not to the client. Thus, in deciding whether to recommend seeking review of a Court of Appeals decision, practitioners are well advised to evaluate whether they can advance any of the reasons articulated in ARCAP 26(c)(3) and its criminal rule counterpart ARCrP 31.19(c)(3).

Generally speaking, if the answer to the aforementioned question is “no,” the practitioner should think twice about recommending a petition for review to the client. Of course, because the statistics show that the odds of persuading the Court to grant review are unfavorable even in the best of circumstances, identifying one or more of the four aforementioned reasons is only the start of the inquiry. In other words, the mere existence of any of the four reasons articulated in the rules is by no means a guarantee that the petition will be granted. For that reason, the practitioner must proceed to determine whether the reason(s) can be advanced forcefully and persuasively enough to distinguish the petition being contemplated from the several hundred others that the Supreme Court receives in any given year. How to do that, of course, is as much art as it is science. At minimum, it requires a mastery of the subject matter and the writing skills that experienced appellate advocates routinely provide.

In conclusion, the practitioner should be guided by considerations well beyond legal error in deciding whether to recommend a petition for review to the client.