Est. 1964

What Certiorari Means

Terry S. O'Donnell

A few years ago, a guy, fresh home from working maintenance at an apartment complex got a call from his boss, asking him to come back in. Seems that nobody was sure that the spigot filling the pool got turned off, and with rain coming, they were worried about the pool overfilling. The guy, Todd, goes back to the apartment and makes sure the deal is shut off.

On the way home, in the rain, Todd pulls over to help another fellow push his disabled pickup. As Todd is pushing the pickup, a 16 year-old girl is driving while texting. She never sees Todd as she rear-ends the pickup. The impact makes Todd fly over the pickup truck, which then runs over him. He does not survive the injuries.

Todd’s widow makes a claim for the life insurance benefits. The Life Insurance Company says, "We're not paying; Todd made some misrepresentations on his insurance application." (Life insurance policies can be rescinded, if the rescission is within 2 years of taking out the policy AND the company can show that the application was made with the intent to deceive the insurer).

We sue the insurance company for bad faith and try the case to a jury. The jury goes our way and we get what was, at the time, a record verdict for that county for that kind of case. Insurance company appeals the verdict. Appeals aren't... quick. I mean, you've got only a limited amount of time to file your notices and briefs and such, but after that, it's awhile. In Oklahoma, everything goes to the Supreme Court, and the Court then says which cases they'll take and which they farm out to the four divisions of the Court of Appeals. There's no time limit on the appellate court. There is something called the "fast track" for appeals, but this case didn't fit into that category.

Days go by, and then weeks. Weeks turn into months, and so on. From time to time, we’d think about the case, wondering what would happen. Every so often, we’d check OSCN to see if there had been movement. And then, one day when it's the last thing on our mind, a package with the Court's decision showed up. We read it, confident that the Court did the right thing and saw the case your way.

But, as we were reading, our stomachs dropped to the basement. And then our thoughts turned to a widow. And to a toddler who lost his Daddy.

Pretty much any time that the Court of Appeals rules against somebody, they'll say that the ruling was The Worst Ever. But, when the Court of Appeals ruled against us... well, I've got to tell you, I spent more than a little time soul searching and wondering about what it is I do for a living. The rules are pretty clear, and I just couldn't see how the COA went the way they did. The Court of Appeals thinks the trial judge should have given judgment as a matter of law to the insurance company. We lose.

So, we weighed our options. Here, going from complete victory to crushing loss, there wasn't much of a choice.

With some kinds of cases, there is an absolute right to appeal a COA decision to the Oklahoma Supreme Court. Not this one. Instead, all you can do is ask the Supremes to review the case, and hope that they will. It's no exaggeration to say that there are THOUSANDS of requests, and no matter how big the case is, there's hardly a guarantee that your case will be picked. To the contrary, asking the Supreme Court to issue a Writ of Certiorari to review a decision by the Court of Appeals is a long shot. After all, the sitting justices have to WANT to look at the case. They have to go out of their way to issue a Writ. All for a case that they looked at in the beginning of the appeal process and sent to the Court of Appeals instead of keeping for themselves.

We asked the Supreme Court to issue a Writ of Certiorari. There are only 4 reasons you can list, asking the Court to act. And you don't get to re-argue everything; you can only talk about which of the 4 reasons you've got. The 4 reasons? One is that it's a new issue; another is that you think the COA acted contrary to past decisions; a third is that you think there is a conflict between decisions issued from the different divisions of the COA; the last is that, without putting too fine a point on it, the COA booted the decision, and you need the Supreme Court to right the wrong.

Everyone lists that last one. But we also thought we had a chance under the second and third paragraphs, based on our reading of the case law.

We write our Petition for Certiorari, no longer with confidence, but instead out of uncertainty, and with a bit of fear. Only a tiny light of hope shines. That's how long the odds are. We prayed that the Court would find a reason to go out of its way to look at our case. Any realistic evaluation of petitioning for a Writ includes an understanding that your back is 100% up against the wall. It's the legal version of a Hail Mary pass as time ticks off the clock down to zero.

Once that Petition is filed, again you wait.

And then one day, you check a message on your phone. The Supreme Court agreed with you that the case should be reviewed. A Writ of Certiorari will be issued. The decision of the Court of Appeals will no longer be the last word. The Supreme Court will look at everything that has already been filed to come up with its own decision.

There can be many reasons for the Supreme Court to act. And we don't know whether it will be to rule in our favor or not. The case, while factually straightforward, was legally complex, and our opponents are able and talented counsel. Of course, if the Supreme Court Justices were happy with the COA opinion, they simply would have let it stand. But we don't know for sure.

Today, though, we're certain of one thing: Certiorari means we still have hope.  A chance. We think the jury did the right thing, and we hope and pray that the Supreme Court sees it that way, too.

Adam Scott Weintraub

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Tulsa, OK 74119


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