Document type: Checklist Practice area: Litigation — Appellate Practice Jurisdiction: United States Last reviewed: 5 September 2026

Section 1 — Threshold questions (answer in writing before drafting)

  • Is there a real conflict? Squarely on the same question, outcome-determinative, ideally acknowledged, entrenched, recurring
  • Is the question important and recurring? Can you count the cases?
  • Is this a clean vehicle?
  • What is the client's actual objective — grant, settlement position, dissent from denial, GVR, or delay? Delay is not legitimate
  • If several cases raise the question, the vehicle decides which one — not the judgment size or the sympathetic client

Section 2 — Conflict research

  • Every decision in every circuit and every state court of last resort located
  • Cases read in full — not headnotes or treatise descriptions
  • Chart built: court · case · year · holding quoted with pin cite · facts · acknowledges disagreement? · limited or overruled? · outcome on our facts
  • Searched deliberately for "we respectfully disagree," "we decline to follow," "we part company with"
  • Each rule applied to our facts — if the outcome is the same, there is no conflict worth the Court's time
  • Subsequent history checked for narrowing or overruling
  • Conflict checked against statutory amendment, rulemaking, or intervening decision
  • District court decisions counted separately as evidence of recurrence — not as a circuit conflict
  • Prior denials of the same question researched, and the reason understood

Section 3 — Vehicle analysis

  • Preservation — with record citations to where it was raised below
  • Did the court below actually decide it? — quoting the opinion
  • Alternative grounds supporting the judgment
  • Jurisdiction, standing, mootness
  • Finality and posture; interlocutory concerns
  • Record clarity on facts the answer would turn on
  • Would the petitioner win on remand?
  • For a state court petition: independent and adequate state ground; plain-statement analysis; state procedural bar
  • If a vehicle problem cannot be answered, do not file

Section 4 — The question presented

  • One question (two only if genuinely inseparable)
  • Under 50 words; under 30 is better
  • Neutral in form; no adjectives, no characterizations
  • Contains the conflict
  • Matches what the court below actually decided
  • Answerable yes or no
  • Comprehensible to a stranger to the case
  • Tested cold on a colleague who does not know the matter
  • Also drafted: the question the respondent will say the case presents — and the gap confronted

Section 5 — Petition structure

  • Question presented
  • Parties, corporate disclosure, tables
  • Opinions below · jurisdiction · provisions involved
  • Statement: short, scrupulously accurate, organized around the legal question, every fact cited
  • Reasons for granting, in this order:
    • A. The conflict — court by court, holdings quoted, weaknesses acknowledged
    • B. Importance and recurrence — with numbers and consequences
    • C. This is an ideal vehicle — every problem addressed before the respondent raises it
    • D. The decision below is wrong — last and shortest
  • Conclusion
  • Length: 9,000 permitted; aim for 5,000–6,000
  • Tone institutional, not aggrieved
  • Headings state propositions, so the table of contents conveys the argument

Section 6 — For the respondent

  • Waive or oppose decided deliberately
  • Waive when: plainly meritless, unremarkable case, unsophisticated petitioner
  • Oppose when: experienced appellate counsel, plausible conflict claim, amici appearing, case attracting attention
  • A call for a response after waiver means at least one chambers is interested — treat it accordingly
  • Opinion below read line by line against the petition, with fresh eyes
  • Opposition structure: counter-statement · statement corrections · vehicle problems first · no conflict, case by case · not important · merits last and brief
  • Length: aim for half the limit
  • Do not fight every characterization

Section 7 — Reply

  • File only if: an unanticipated vehicle problem can be answered; a case is mischaracterized and can be quoted; a factual assertion is contradicted by the record
  • Do not repeat the petition or expand the merits
  • 3,000-word cap; two useful pages is a good reply

Section 8 — Amicus coordination

  • Started before the petition is filed — the 30-day window is too short from a standing start
  • Amici selected for genuine independent interest and diversity
  • Topics allocated so briefs do not duplicate: frequency and consequences; background; alternative rules; state or former-official perspective
  • Each brief supplies information the parties cannot
  • Consent obtained; authorship and funding disclosures made
  • Filing deadline tracked — 30 days from docketing or from a call for a response; late briefs are not considered
  • Quality over volume — three substantial briefs beat fifteen thin ones

Section 9 — Rehearing en banc (FRAP 35)

  • Rule 35 certificate included, in the terms the rule specifies
  • Intra-circuit conflict ground assessed first — it is the strongest
  • Conflicting holdings quoted side by side, not paraphrased
  • If a reasonable reader could reconcile them, the ground fails
  • Exceptional importance ground: number of affected cases, constitutional question, circuit conflict, economic or governmental consequences, administration of justice
  • Panel dissent used as the spine of the petition — quoted and relied on
  • Written for the one judge most likely to call for a vote
  • Recurrence documented with counted decisions
  • 3,900-word cap — use fewer
  • Amicus support considered, addressing consequences within the circuit

Section 10 — Panel rehearing (FRAP 40)

  • Ground stated as what the panel overlooked or misapprehended — not disagreement
  • Specific: an argument not addressed; a controlling authority not cited; a material fact stated incorrectly with a record cite; a holding broader than the question; internal inconsistency
  • Narrowing petition considered — asking the panel to limit an over-broad statement without changing the result
  • If combined with en banc, the two sections are genuinely different: particular and narrow vs institutional and general
  • Short. Two specific pages beat fifteen re-arguing the appeal

Section 11 — Deadlines (calendar the day the opinion issues)

  • Panel rehearing / en banc: 14 days civil; 45 days where the United States is a party
  • Extensions must be sought before expiry; granted sparingly
  • Certiorari: 90 days from entry of judgment, or from denial of rehearing if the rehearing petition was timely
  • An untimely rehearing petition does not restart the clock
  • Extension application: at least 10 days before the deadline, to the Circuit Justice, not routine
  • Amicus: 30 days from docketing or call for a response
  • Brief in opposition: 30 days from docketing
  • One named person owns the calendar

Section 12 — Appendix and mechanics

  • Court of appeals opinion · district court opinion or order · magistrate report if adopted · order denying rehearing · provisions in full · other essential documents
  • Reverse chronological order
  • Sequential pagination, cited as "Pet. App. 12a"
  • Booklet format, cover colours, word count certificate, proof of service
  • Experienced Supreme Court printer engaged
  • Electronic filing completed alongside the paper submission
  • Every citation and quotation verified against the source

Section 13 — After filing

  • Call for a response where the respondent waived: at least one chambers is interested
  • Relist: something is happening; a single relist materially raises the odds
  • CVSG: many months added; the government's recommendation is highly predictive
  • Hold: a related case is pending; likely outcome is a GVR
  • Rescheduling before a first conference: routine, means little
  • Supplemental briefs only for genuinely new authority, filed promptly and briefly
  • Denial is not a ruling on the merits — say so to the client and, where appropriate, in later litigation
  • A dissent from denial preserved and used in the next petition
  • Conflict chart retained and kept current for the next vehicle

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