Six Tips for Effective Writ Practice (Part 2)

Six Tips for Effective Writ Practice

page 2

By Jeffrey I. Ehrlich
Advocate. July/August 2001 | Download .pdf

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2. Make It Clear to the Court Why It’s a Big Deal

Every writ petition should start with an introduction that explains to the court why the petition involves something that is a “big deal” and deserves the court’s attention. Common sense would dictate that a writ petition would explain in the clearest possible terms what is at stake, and make the point clear immediately.

Unfortunately, many lawyers seem constitutionally incapable of coming to the point quickly; they file documents filled with needless “throat clearing.” Don’t let the first sentence in your writ petition be, “Petitioner John Jones (hereinafter “Jones” or “Petitioner “) hereby moves for a writ of mandate and/or prohibition seeking review of the order of January 10, 2000, by the Honorable Arthur Smith, Judge of the Superior Court, respondent, granting the petition to compel arbitration brought by real party in interest CIGNA Corp.” The court already knows much of this information just by reading the caption of the petition.

Better to start right into the argument, e.g., “The trial court granted CIGNA’s petition to compel arbitration even though its arbitration clause lacked the disclosures mandated by Insurance Code section 12123.19, and was therefore invalid. This case presents a novel issue of statewide importance: whether section 12123.19 is preempted by the Federal Arbitration Act, or is saved from preemption by the McCarran Ferguson Act.”

One of the country’s leading teachers of legal writing, Bryan Garner, suggests that all briefs (and this would include a writ petition) should begin with a short factual statement of the issue, which ends with a question that suggests its own answer. The issue should raise the ultimate issue in the case and the suggested answer should necessitate a favorable outcome for the petitioner. Garner insists that the entire statement be no more than 75 words, regardless of the complexity of the case.

This is a tall order, and many lawyers would resist. But Garner insists that, “About 98% of the time, if you can’t phrase your issue in 75 words, you probably don’t know what the issue is, it’s that simple.” B. Garner, The Winning Brief (Oxford Univ. Press 1999), p. 71. Garner provides the following “uncommonly good” example of the technique:

Under Wyoming law, administrative agencies have only those powers provided by statute. No statute gives the Wyoming Natural Resources Commission the authority to impose any sanctions for discovery abuse. May the Commission dismiss a permit application if it finds that the applicant has failed to respond to discovery requests?

Id. at 71.

Working to frame the issue in the way Garner suggests is both time consuming and valuable. It can take hours, or sometimes days, to find the most succinct way to frame the issue persuasively. But during the course of struggling with the best way to frame the issue you may decide that the key issue is not the first one that came to mind. And, a wellframed issue can grab the court’s attention and let it know right away that it is dealing with one of the “extraordinary” cases that might warrant writ relief.

3. Be Aware of Deadlines

Unlike the strict deadlines for filing a notice of appeal, in most cases there is no court rule or statute prescribing the deadline for filing a writ. Since writs are deemed equitable in nature, relief may be barred by laches if the petitioner has unreasonably delayed filing the petition, and the delay is prejudicial to the real party in interest. Sentry Ins. Co. v. Superior Court, 207 Cal.App.3rd 526, 529-530, 255 Cal.Rprt.13, 15 (1989). Courts generally expect that a writ will be filed within 60 days of the entry of the order being challenged, but have discretion to hear a writ beyond this 60-day period. “Civil Appeals and Writs,” supra, ¶ 15.146, p.15-67.

Likewise, in some cases laches could bar relief where the writ was filed within 60 days, if the circumstances warranted a speedier petition. For example, if the petitioner files a writ on the day before trial, challenging a ruling made 60 days earlier, the petition is unlikely to receive a warm reception. The rule is this: when seeking a writ, file it as the earliest opportunity. If there has been any appreciable delay, explain why.

There is a important exception to the general “60-day” rule for filing writs. In some cases, a statute will prescribe the period in which a writ must be filed if a party seeks review of a ruling made under the statute. These are known as “statutory writs.” Typically, the deadline prescribed in the statute is shorter than 60 days.

For example, Code of Civil Procedure section 437c(l) requires that a writ seeking review of an order denying a motion for summary judgment or summary adjudication must be filed within 20 days after service of the written notice of entry of the order denying the motion. (This period can be extended by the trial court for ten additional days upon a showing of good cause, but is not automatically extended by the filing of a motion for reconsideration.)

Generally, a failure to meet the deadline for filing a statutory writ will preclude later review of the issue by a common law writ, and in some cases, where the statute makes writ review the exclusive remedy, will preclude later appellate review of the ruling. For example, a statutory writ is the exclusive method to obtain review of an order denying a motion to quash for lack of personal jurisdiction, or challenging the denial of a motion to disqualify a judge. McCorkle v. City of Los Angeles, 70 Cal.2d 252, 257, 74 Cal.Rptr. 389, 393 (1969) (motion to quash); People v. Hull , 1 Cal.4th 266, 275, 2 Cal.Rtpr.2d 526, 532 (1991) (motion to disqualify judge).

4. Give the Court a Proper Record

A writ petition must be supported by a record that is adequate to permit the court of appeal to review the challenged ruling. This is both a matter of common sense, and court rule — Rule 56(c) of the California Rules of Court. Failure to supply an adequate record is grounds for the summary denial of the petition. Rule 56(c)(4).

Rule 56(c) prescribes the contents of a record that must be filed in support of a writ petition. These include:

  • A copy of the order from which relief is sought;
  • Copies of all documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position;
  • Copies of any other documents submitted to the trial court that are necessary for a complete understanding of the case and the ruling.

The transcript of the proceedings in the trial court.If the transcript is not available when the petition is filed, Rule 56(c) allows the petitioner to file a statement that fairly summarizes the proceedings and explaining why the transcript is not available. Rule 56(c) also allows counsel to file a declaration stating when the transcript was ordered and when it will be expected. Since a transcript is a required component of the record, if the trial court makes a ruling that will be the basis of a writ petition, the best course is to order the transcript from the court reporter on the way out of the courtroom after the hearing.

The exhibits to a petition should be assembled in chronological order, paginated, and bound either at the end of petition or in a separate volume, which must not exceed 300 pages. Rule 56(d). The exhibits must begin with a table of contents. Ibid.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

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