Six Tips for Effective Writ Practice
By Jeffrey I. Ehrlich
Advocate. July/August 2001 | Download .pdf
A. Four Tips for the Petitioner
A “writ” is an order issued by the reviewing court to an inferior tribunal, typically the superior court, directing it to do something (mandate) or forbidding it from doing something (prohibition). Article 6, section 10 of the California Constitution defines the relief available by writs as “extraordinary.” Likewise, the cases refer to these writs as “extraordinary writs” and note that, “. . . writ relief is deemed ‘extraordinary.'” Science Applications International Corp. v. Superior Court, 39 Cal.App.4th 1095, 1100, 46 Cal.Rptr.2d 332, 334 (1995).
The United States Supreme Court has said, “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations . . . . only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Kerr v. U. S. Dist. Court for Northern Dist. of California, 426 U.S. 394, 402, 96 S.Ct. 2119 (1976) (citations omitted).
The view is the same in the California courts. The California Court of Appeal has explained:
We deny the vast majority of petitions we see and we rarely explain why. In reality, perhaps the most fundamental reason for denying writ relief is the case is still with the trial court and there is a good likelihood purported error will be either mooted or cured by the time of judgment. As one court has summarized it: “[I]f it were granted at the drop of a hat, [writ review] would interfere with an orderly administration of justice at the trial and appellate levels. . . . [¶] ‘If the rule were otherwise, in every ordinary action a defendant whenever he chose could halt the proceeding in the trial court by applying for a writ . . . to stop the ordinary progress of that action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen. If such were the rule, reviewing courts would in innumerable cases be converted from appellate courts to nisi prius tribunals[ ]’ . . . [and] [¶] would be trapped in an appellate gridlock. . . .”
Science Applications International Corp. v. Superior Court, 39 Cal.App.4th 1095, 1100, 46 Cal.Rptr.2d 332, 334 (1995), citing, Omaha Indemnity Co. v. Superior Court, 209 Cal.App.3d 1266, 1272-1273, 258 Cal.Rptr. 66 (1989).
Treatises on appellate practice warn that 90 percent of writ petitions are summarily denied. See e.g., Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter Group 2000 (rev.) (“Civil Appeals and Writs”) ¶ 15.3.1, p. 15-1. The strict standards for granting review, and the daunting denial rate, might discourage most prudent lawyers from taking the trouble to draft and file a petition for an extraordinary writ.
With the odds against them, why do lawyers still file petitions for writs? Because despite the statistics, and the strict standards for relief, sometimes the Courts of Appeal grant them. There are currently between 5,000 and 7,800 published California decisions arising out of writ proceedings. (Typically, in a writ proceeding, the Superior Court is named as the responding party. A Westlaw search finds 7,843 published decisions in California that include “the Superior Court” in the title; 6,594 that include the term “real party in interest;” and 5,049 that include both phrases.) What follows are four tips for the petitioner who wants to buck the odd
1. Make Sure It’s a Big Deal
What constitutes the “extraordinary” circumstances that will justify writ relief? The Court of Appeal’s decision in Omaha Indemnity Co. v. Superior Court, 209 Cal.App.3d at 1273-1274, 258 Cal.Rptr. 66 (1989), provides a useful list:
- The issue presented in the petition should be of widespread interest, or present a significant and novel constitutional issue;
- The trial court’s order has deprived the petitioner from presenting a substantial portion of the case;
- There are conflicting trial court interpretations of the law that require resolution; or
- The trial court’s order is clearly erroneous as a matter of law and substantially prejudices the petitioner’s case.
In addition to satisfying one or more of these criteria, the petitioner must overcome a further hurdle — that the typical remedy for error committed by the trial court, an appeal, would not provide an adequate remedy. Omaha Indemnity v. Superior Court, 209 Cal.App.3rd at 1274, 258 Cal.Rptr. at 70.
Appellate courts are inclined to grant writs to prevent an irreparable injury, but they are unlikely to be moved by an “irreparable inconvenience.” Ordway v. Superior Court, 198 Cal.App.3rd 98, 101 n. 1, 243 Cal.Rptr. 536 (1988). The lawyer who petitions for a writ must therefore be able to show the Court that the issue presented is (a) interesting, and (b) important. In other words, that it is a big deal.