Discretionary Review Toolkit: Petition Structures, Conflict Charts, and Amicus Coordination

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

Tool 1 — Conflict chart

Rules:

• Quote holdings. Every characterization will be checked; a single wrong one discredits the petition.
• Search deliberately for: "we respectfully disagree" · "we decline to follow" · "we part company with" · "contrary to the ___ Circuit" · "in conflict with".
• The last column is the test. Same outcome under both rules = no conflict worth the Court's time.
• District court decisions go in a separate table — evidence of recurrence, not of a circuit conflict. Count them.

Recurrence count. ___ published court of appeals decisions and ___ district court decisions have addressed the question since [year], reaching different results by circuit.

Tool 2 — Vehicle memorandum

Complete before drafting. If any answer is bad, do not file.

VEHICLE ANALYSIS — [Case] — [Date] — [Privileged]

1. Preservation. Raised at: district court [record cite]; court of appeals [brief page]. Ruled on at [cite]. Risk: [none / moderate / fatal]. 2. Did the court below decide it? Quote the holding: "___" at ___. Is the discussion holding or dicta? 3. Alternative grounds. Does the judgment rest on any other ground? [Quote.] Would the petitioner still lose? 4. Jurisdiction. § 1254 / § 1257. Standing preserved. Mootness: ___. 5. Finality and posture. Final judgment / interlocutory. If interlocutory, why review now? 6. Record clarity. Are the facts the answer depends on undisputed and in the record? 7. Outcome on remand. Would the petitioner win under the rule sought? 8. State court petitions only. Independent and adequate state ground? Plain statement present? State procedural bar regularly applied? 9. Other questions in the case. Would the Court have to resolve anything else to reach this?

Assessment: clean / manageable with disclosure / not a viable vehicle. If not viable, the alternative case is: ___

Tool 3 — Question presented workshop

Weak, and why:

✗ "Whether the court of appeals erred in holding that the district court did not abuse its discretion in denying petitioner's motion to compel arbitration where the agreement contained a valid delegation clause and the respondent had not specifically challenged that clause." — Too long. Asks whether the court erred (Rule 10 says that is not a ground). Buries the legal question in procedural posture. Contains no conflict.

✗ "Whether the Fifth Circuit's decision, which conflicts with decisions of five other circuits and creates chaos for regulated entities nationwide, should be reversed." — Argument, not a question. Unverifiable. Invites the response that no conflict exists.

Strong:

✓ "Whether a court may compel arbitration of a threshold question of arbitrability where the party opposing arbitration has challenged the arbitration agreement as a whole but not the delegation provision specifically." — 34 words. Neutral. Legal. Answerable. Matches what the court decided.

✓ "Whether, as three circuits have held and two have rejected, [statute] § 12(b) requires proof of actual knowledge." — 20 words. Contains the conflict. Nothing else needed.

Test protocol:

• Read cold by two colleagues unfamiliar with the case; both describe the case correctly
• Under 50 words
• Contains no adjective characterizing a party or a court
• Matches a quoted holding of the court below
• The respondent's version of the question drafted alongside, and the gap confronted

Tool 4 — Petition template

QUESTION PRESENTED (page i — the whole case)

PARTIES TO THE PROCEEDING / CORPORATE DISCLOSURE TABLE OF CONTENTS / TABLE OF AUTHORITIES

OPINIONS BELOW. The opinion of the court of appeals (Pet. App. 1a–24a) is reported at ___. The order denying rehearing (Pet. App. 25a) is unreported. The district court's opinion (Pet. App. 26a–41a) is reported at ___.

JURISDICTION. The court of appeals entered judgment on [date]. A timely petition for rehearing was denied on [date] (Pet. App. 25a). This Court's jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED. [Set out, or reference the appendix.]

STATEMENT OF THE CASE (short; organized around the legal question; every fact cited) A. Statutory background B. Factual background C. Proceedings below

REASONS FOR GRANTING THE PETITION I. THE COURTS OF APPEALS ARE DIVIDED ON THE QUESTION PRESENTED. A. Three circuits hold that ___. (Holdings quoted.) B. Two circuits, including the court below, hold the opposite. (Holdings quoted.) C. The conflict is acknowledged and entrenched. (Quote the acknowledgment.) D. The conflict is outcome-determinative. (Apply each rule to these facts.) II. THE QUESTION IS IMPORTANT AND RECURS FREQUENTLY. A. The question arises in ___ cases per year. (Numbers.) B. The conflict produces different outcomes for identically situated parties. C. The practical consequences are substantial. (Concrete.) III. THIS CASE IS AN IDEAL VEHICLE. A. The question was pressed and passed upon below. B. The judgment rests solely on the question presented. C. The facts are undisputed and the posture is final. D. (Address every anticipated vehicle objection.) IV. THE DECISION BELOW IS WRONG. (Shortest section.)

CONCLUSION. The petition should be granted.

APPENDIX

Tool 5 — Brief in opposition outline

COUNTER-STATEMENT OF THE QUESTION PRESENTED (if the petitioner's framing is inaccurate)

STATEMENT (correct material errors precisely; do not fight every characterization)

REASONS FOR DENYING THE PETITION I. THIS CASE DOES NOT PRESENT THE QUESTION. A. The court below decided the case on [ground], not on the question presented. (Quote the holding.) B. Petitioner did not preserve the question. (Record cites.) C. The judgment rests on an independent alternative ground. D. The decision is factbound. / The posture is interlocutory. II. THERE IS NO CONFLICT. A. [Case 1] involved a different statutory provision. (Quote.) B. [Case 2] has been superseded by [amendment]. C. [Case 3] is consistent with the decision below when read in full. D. The outcome would be the same in every circuit on these facts. III. THE QUESTION DOES NOT WARRANT REVIEW. A. It arises rarely. B. The practice that produced it has changed. C. Further percolation would benefit the Court. IV. THE DECISION BELOW IS CORRECT. (Brief.)

CONCLUSION.

Tool 6 — Waiver letter

To the Clerk:

Pursuant to Rule 15.5, respondent [name] waives its right to file a response to the petition for a writ of certiorari in No. ___, unless one is requested by the Court.

[Counsel of record, address, bar membership]

Before sending, confirm: the petition is plainly meritless; the petitioner is not experienced appellate counsel; no amicus briefs have been filed; the case has attracted no attention; and the client accepts that a call for a response would put any later brief under scrutiny.

Tool 7 — Amicus recruitment brief

Send to prospective amici, six to eight weeks before the petition is filed.

Re: Potential amicus participation — [case], petition for certiorari

The question. [One sentence.]

The decision below. [Two sentences, neutral.]

Why it matters to you. [Two or three sentences specific to this organization.]

What we are asking. Consideration of an amicus brief supporting the petition, addressing [allocated topic]. We are coordinating topics so that briefs do not duplicate.

Timing. The petition will be filed on or about [date]. Amicus briefs are due 30 days after docketing — approximately [date]. This deadline is firm; late briefs are not considered.

What we can provide. The draft petition, the conflict chart, the record materials, and a call with counsel.

What we cannot do. Draft or fund your brief. Rule disclosures require the brief to state whether counsel for a party authored it in whole or part and whether any party contributed funds.

Contact: [name, telephone, email]

Tool 8 — Amicus topic allocation grid

Rules:

• No two briefs cover the same ground. Duplication wastes the Court's attention.
• No brief repeats the petition. Each supplies information the parties cannot.
• Quality over volume. Three substantial briefs beat fifteen thin ones.
• No manufactured amici. Entities with no independent interest are transparent and counted against the petitioner.

Tool 9 — FRAP 35 certificate and conflict table

CERTIFICATE OF COUNSEL PURSUANT TO FED. R. APP. P. 35(b)(1)

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision of this Court, and that consideration by the full Court is necessary to secure and maintain uniformity of the Court's decisions: [Case, cite].

[And/or] I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance: [state the question in one sentence].

_______________________ [Counsel]

THE CONFLICT (page 2 of the petition — this table is the petition)

	[Prior circuit decision]	The panel decision
Holding	" ... " at ___	" ... " at ___
Facts
Result

These holdings cannot both be law. The panel opinion does not cite [prior decision]. Under this Court's rule that a panel may not overrule a prior published decision, only the en banc Court can resolve the inconsistency.

Tool 10 — En banc petition template

RULE 35(b)(1) CERTIFICATE (Tool 9) QUESTION PRESENTED (one sentence) THE CONFLICT (the side-by-side table, page 2) STATEMENT (one page maximum) ARGUMENT I. THE PANEL DECISION CONFLICTS WITH [PRIOR DECISION] AND ONLY THE EN BANC COURT CAN RESOLVE THE CONFLICT. II. THE QUESTION IS EXCEPTIONALLY IMPORTANT. A. It recurs — [N] decisions in this Circuit since [year]. (Cited.) B. It creates a conflict with [other circuits]. C. The consequences are [economic / governmental / administration of justice]. III. THE DISSENT IDENTIFIES THE PROBLEM. (Quote it.) CONCLUSION.

3,900-word cap. Use fewer.

Tool 11 — Panel rehearing: the narrowing petition

Use when your client won but the opinion sweeps too broadly.

PETITION FOR PANEL REHEARING

Petitioner does not seek any change in the judgment. Petitioner prevailed below and asks only that the panel consider whether the statement at pages – of the opinion extends beyond the question the parties presented.

1. The question presented and briefed. The parties briefed whether [narrow question]. [Record cites to the briefs.]

2. The statement at issue. The opinion states: "___." Slip op. ___.

3. Why it may exceed the question. That statement, read literally, governs [three categories of transaction], none of which was before the Court and none of which was addressed in the briefing or the record.

4. Proposed amendment. Petitioner respectfully suggests that the sentence could be limited as follows: "___" — which resolves this case on the ground the panel identified without reaching circumstances not presented.

CONCLUSION. Petitioner asks that the opinion be amended as described. Petitioner does not seek rehearing of the judgment.

Tone note. This is not an attack. It is counsel observing that an opinion may say more than intended, and panels are receptive to that where they are not receptive to a demand for reversal.

Tool 12 — Appendix index

Tab	Document	Pages
A	Opinion of the United States Court of Appeals for the ___ Circuit ([date])	1a–24a
B	Order denying rehearing en banc ([date])	25a
C	Opinion and order of the United States District Court ([date])	26a–41a
D	Report and recommendation of the magistrate judge ([date])	42a–58a
E	Judgment ([date])	59a
F	Relevant statutory provisions	60a–66a
G	Relevant regulatory provisions	67a–70a
H	[Other essential document]	71a–

• Reverse chronological order (most recent decision first)
• Sequential pagination with the "a" suffix
• Provisions set out in full
• Cited throughout as "Pet. App. 12a"
• Order denying rehearing included — it establishes the certiorari timing

Tool 13 — Filing mechanics

• Booklet format; correct cover colour for the document type
• Word count certificate
• Proof of service
• Counsel of record identified, admitted to the Bar of the Court
• Required number of copies
• Electronic filing completed alongside the paper submission
• Experienced Supreme Court printer engaged — they catch what counsel miss
• Every citation and quotation verified against the source, by someone other than the drafter
• Appendix paginated and complete before the printer's deadline
• Fee paid or in forma pauperis motion filed

Tool 14 — Master deadline calendar

Populate the day the opinion issues. One named owner.

Tool 15 — Client engagement memorandum

TO: [Client] RE: Petition for [certiorari / rehearing en banc] — recommendation and odds

1. The odds. Fewer than one paid certiorari petition in twenty is granted. [Or: this Circuit granted rehearing en banc in ___ cases last year out of ___ petitions.] With [the conflict / vehicle characteristics] here, the prospects are [better than / consistent with] that base rate, but remain well short of even.

2. What the petition argues. Not primarily that the decision below was wrong. That the courts have divided, the question recurs, and this case presents it cleanly. The merits section will be the shortest part of the brief.

3. Vehicle assessment. [Summary from Tool 2.] [If we are petitioning in a different case, explain why.]

4. Outcomes short of a grant, and their value. [Dissent from denial / relist and settlement leverage / GVR if [related case] is decided / preserved position for a better vehicle.]

5. Alternatives considered. [Rehearing alone / waiting for a better vehicle / amicus participation in another case / legislative advocacy / accepting the ruling and restructuring.]

6. Recommendation. [Clear.]

7. Scope and fees. Petition: $. Reply: $. Amicus coordination: $. Merits briefing if granted: $.

Client decision: ___ Date: ___

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