Preparing a petition for certiorari

A Petition for a Writ of Certiorari should identify the Questions Presented, proceedings below, jurisdictional basis, judgment or order presented for review, material procedural history and facts, reasons review is warranted, and the disposition the petitioner intends to seek if review is granted. That sentence can sound like somebody threw an entire legal dictionary down a staircase.

Each requirement actually answers a fairly simple question. The petition should tell the Judge Advocate General what legal issue is presented, where the case came from, why the Judge Advocate General has authority to consider it, what decision is being challenged, what happened in the case, why the issue deserves final review, and what result the petitioner wants.

The Questions Presented tell the Judge Advocate General exactly what legal issue the petitioner wants reviewed. A weak Question Presented might ask, "Did the lower court make a mistake?"

That is too vague because nearly every losing party believes the lower court made some kind of mistake. A better question might ask, "Whether the Assistant Judge Advocate General applied the incorrect standard when determining whether Exhibit 7 was sufficiently authenticated."

That identifies the exact legal problem. A petition may contain more than one Question Presented, but each should be stated separately and clearly. Ten unrelated complaints packed into one sentence do not become more persuasive merely because the sentence survives.

The proceedings below are the earlier judicial stages of the same case. The petition should identify where the matter began and what happened before it reached the Judge Advocate General.

For example, the petition may explain that the Military Judge denied a Defense Motion to Suppress, entered judgment, and that the appropriate Assistant Judge Advocate General later affirmed the decision on appeal. The purpose is to provide the procedural map. The Judge Advocate General should not have to reverse-engineer the entire case from twenty links and a prayer.

The jurisdictional basis answers a specific question: why is the Judge Advocate General legally permitted to consider this petition? This is different from explaining why the Judge Advocate General should want to hear the case.

Jurisdiction concerns legal authority. A basic jurisdiction statement may explain that the ordinary service appellate proceedings have concluded and that the Rules permit a party to seek final discretionary review through certiorari. The jurisdiction section proves that the case is legally allowed through the courthouse door.

The petition should identify exactly which lower decision the petitioner wants the Judge Advocate General to review. One case may contain dozens of orders and rulings.

Counsel should therefore make clear whether the challenge concerns the appellate judgment, a particular evidentiary ruling, punishment, dismissal order, or another specific action. For example, the petition might state that review is sought of the Assistant Judge Advocate General judgment affirming the Military Judge's denial of the Defense Motion to Suppress Exhibit 7. The Judge Advocate General should not have to guess what part of the case everybody is arguing about.

The material procedural history explains the important steps that brought the case to its current position. The word "material" matters.

The petition does not need to describe every scheduling notice, extension request, minor docket update, and moment when someone's internet connection developed a personal grudge against the Case Portal. It should explain the procedural events necessary to understand the legal issue. For example, the petition might explain that the Defense moved to suppress Exhibit 7, the Military Judge denied the motion after a hearing, the exhibit was admitted, the Defense appealed, and the Assistant Judge Advocate General affirmed.

The material facts are the facts necessary to understand the Questions Presented. If the issue concerns authentication of a screenshot, relevant facts might include who produced the screenshot, whether metadata existed, whether a witness identified the account, whether surrounding messages supported identity, and what foundation was offered.

The petition probably does not need to explain what everyone ate before the hearing unless a sandwich somehow becomes part of the authentication foundation. The facts should be accurate enough that the Judge Advocate General can understand the issue without first correcting the petitioner's version of the record.

This portion explains why the Judge Advocate General should choose the case for final review. Because certiorari is discretionary, it is not enough to say that the lower court was wrong.

The petitioner should identify why the issue matters at the level of final Judge Advocate General review. For example, counsel might explain that two service appellate decisions apply different standards to digital authentication, creating uncertainty throughout the Corps. That gives the Judge Advocate General a system-level reason to consider the case.

The petition should also explain what the petitioner intends to ask the Judge Advocate General to do if certiorari is granted and the petitioner ultimately prevails. Possible dispositions may include reversal, vacatur, modification, remand, dismissal where authorized, or another lawful remedy.

For example, the petitioner might seek vacatur of the appellate judgment and remand for further proceedings under the correct authentication standard. A petition that spends twenty pages explaining why everything is wrong and never says what should happen next is making the court finish counsel's homework.

A student can simplify the entire petition by remembering seven questions. What legal question do you want the Judge Advocate General to review? What happened in the lower courts? Why does the Judge Advocate General have authority to consider the petition? What exact judgment or order are you challenging?

The petition must also explain what facts and procedural history matter, why the case deserves final discretionary review, and what result the petitioner wants if review is granted. If a petition answers those seven questions clearly, the Judge Advocate General should be able to understand the case without rebuilding it from scratch.

Assume the Defense challenges admission of a Discord screenshot. The Question Presented asks whether the Assistant Judge Advocate General applied the wrong authentication standard when affirming admission of Exhibit 7.

The proceedings below explain that the Military Judge admitted the exhibit, judgment followed, and the Assistant Judge Advocate General affirmed on appeal. The jurisdictional basis explains that ordinary appellate review has concluded and the petitioner is now seeking discretionary final review under the applicable Rules.

The judgment presented for review is the Assistant Judge Advocate General judgment affirming admission of Exhibit 7. The material facts explain that no metadata was introduced, no witness personally observed the accused send the message, and the lower courts relied primarily upon the account name and surrounding conversation.

The reasons review is warranted might explain that the decision conflicts with another service appellate approach and creates uncertainty concerning digital authentication throughout the Corps. The requested disposition might be vacatur of the appellate judgment and remand for further proceedings applying the correct legal standard.

That is the basic anatomy of certiorari. Once those pieces make sense, the phrase "Writ of Certiorari" stops sounding like somebody has begun casting a legal spell.