On occasion, the Supreme Court of North Carolina will grant a petition for discretionary review and then later decide that the grant was “improvidently allowed.” See, e.g., here and here and here. The U.S. Supreme Court sometimes reaches the same result.
Because these opinions usually provide little, if any, explanation, we are often left to guess at the basis for the court’s decision. Earlier this month, the U.S. Supreme Court provided one reason why this result might be warranted: because the attorneys attempted a bait-and-switch. In two consolidated cases, the petitioners asked the Court to resolve a circuit split and decide whether certain allegations are sufficient to plead an antitrust conspiracy. “After having persuaded [the Court] to grant certiorari on this issue, however, petitioners chose to rely on a different argument in their merits briefing.” The Court ordered that the cases be dismissed.
There are, of course, many reasons why a court of last resort would question an earlier decision to review a case, but the Supreme Court’s order reminds us that a) such review is truly discretionary, and b) attorneys must always be true to their word. There is a fine line between making your petition for review broad enough to entice a close look and making it accurate enough to encompass the issue you intend to address. If you cross the line, be aware that there may be severe consequences: “deep embarrassment” and “pain” and, most importantly, a loss for your client.