Civil writs
A “writ” is an order from a higher court ordering a lower court to do something. Writs provide a process for review by the appellate courts of trial court rulings that are not immediately appealable. It is a short-cut to getting your case considered by the higher court. A litigant who seeks a writ does so by means of a “petition.”
Writs introduced
Unlike appeals, which are heard as a matter of right, appellate review of writ petitions is discretionary. So even if a trial court ruling is patently incorrect, an appellate court is not required to grant a writ petition or — usually — even to consider it on the merits. A litigant will probably be required to wait until the whole case is over in the trial court and the appeal process begins. As shown below, one has to make a particular type of showing in order to have a realistic chance of obtaining relief through the writs process.
Denials of writs usually take a “summary” form. Instead of the written opinion at the end of an appeal, a writ is typically denied with a one-sentence order. The petitioner can be left to guess at the reasons. The good news is that the whole process is at least a lot faster than an appeal — the decision can come in days rather than months. There is no right to oral argument before summary denial.
When a writ petition is denied, you might be left wondering whether this happened because the court decided not to address the legal issues on the merits (on the basis that the subject was not adequately “writworthy”), or because it was considered on the merits but the court disagreed with your argument. This is because even those petitions that are considered on the merits can be denied in a summary manner.
One way in which you might get a sense of how far your petition advanced is whether or not the court requested informal or formal briefing in opposition. If such a request is made, it tends to suggest that the writ petition is being taken somewhat seriously. That said, oppositions are often filed without the court asking for them, so this method of reading the mind of the court does not always work (added to which there are local variations in the rules concerning how and when opposition briefing is requested).
Why writs are disfavored
More than 90 per cent of writ petitions are denied. As indicated above, denial does not necessarily mean that the matter has been turned down on the merits — and (for the most part) you can still get your chance to raise the same issue on appeal at the end of the case.
The reason for the poor success rate of writ petitions has to do with appellate courts’ reluctance to engage in piecemeal review of trial court proceedings. The system does not want to make it too easy for litigants to jump to the front of the line in terms of getting the attention of the appeals process. Also, the Court of Appeal factors in the possibility that a trial court might end up correcting its own error as a case progresses, or that the error will prove inconsequential or that the case will anyway settle.
However, writ petitions are not hopeless. While fewer than one in 10 of all petitions succeeds, this statistic is skewed by the fact that a very large number clearly do not meet the criteria — they are doomed from the outset because the subject matter and the circumstances of the case are unsuitable even if the legal argument has merit.
The policy against writs was summed up by the Court of Appeal in a published decision, Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272-1273:
“Writ relief, if it were granted at the drop of a hat, 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 of prohibition to stop the ordinary progress of the action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen….
“Particularly today, in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation… Were reviewing courts to treat writs in the same manner as they do appeals, these courts would be trapped in an appellate gridlock.
“This in turn would cause ordinary appeals, waiting for review, to be shunted to the sidelines. One writer sees a writ petition as being a device used to “cut into line” ahead of those litigants awaiting determination of postjudgment appeals… The Court of Appeal is generally in a far better position to review a question when called upon to do so in an appeal instead of by way of a writ petition. When review takes place by way of appeal, the court has a more complete record, more time for deliberation and, therefore, more insight into the significance of the issues. Unlike the ordinary appeal which moves in an orderly, predictable pattern onto and off the appellate court's calendar, writ proceedings follow no set procedural course.
“Further, some issues may diminish in importance as a case proceeds towards trial. Petitioners seeking extraordinary writs do not always consider that a purported error of a trial judge may (1) be cured prior to trial, (2) have little or no effect upon the outcome of trial, or (3) be properly considered on appeal.” (Internal quotations and citations omitted.)
Part of planning for a successful writ is to understand the reasons why they are usually disfavored — and to argue around these points.
What it takes for a writ petition to succeed
On the positive side, the California Supreme Court has, in a variety of decisions, stated general criteria for determining when writs should be dealt with on the merits:
In order to bring a successful writ petition, it is imperative to convince the appellate court that your issue simply cannot wait for a conventional appeal taken after entry of judgment. If you cannot make a convincing argument on this point, a writ petition is most likely not worth the expense.
Opposing writ petitions
Conversely, if one is opposing a writ petition, the two messages to communicate are “unique” and “boring.” If a case deals with a “unique” set of circumstances, it lacks the widespread interest that makes it deserving of writ review. If it is “boring,” it probably isn't the type of case that the court will want to promote to the front of the line.
The different types of civil writ petitions
Not all civil writs are the same. One way of categorizing them is between those that prohibit a lower court from doing something, and those that mandate something. However, many writ petitions can be framed either way — and the Court of Appeal is unlikely to focus very much on how the petition is styled in that respect. The more crucial distinction is between those for which there is provision in a statute, and those whose basis is in the common law.
The California legislature has made writ petitions the only method of obtaining appellate review of certain types of trial court decisions. Where statutes make writs the sole method of review, failure to file a petition in a timely manner will mean that a litigant has waived the right to any appellate review. And the time period allowed for filing a statutory writ can be very tight — as little as 10-20 days depending on the statute. Certain other statutes make specific provision by review by means of a writ petition, but do not mandate it as the only type.
There is no fixed time for filing a nonstatutory writ, but most authorities agree that 60 days from the date of the lower court's decision is the outside for falling within the “reasonable time” requirement. Sooner is better — leaving it to the last minute tends to undermine the potency of the “irreparable harm” argument that needs to be made. If the court sees that a litigant sat on an issue for six weeks before filing the petition, it might doubt the urgency of the situation.
Arguably, where a statute provides for writ review, the Court of Appeal is more likely to consider a petition on the merits than where the petition relies solely on the common law. Where writ petitions form the only basis of appellate review, you can assume that your petition will be considered on the merits — but it may nonetheless be denied in a summary manner without any explanation of the grounds.
Writ logistics
The logistics of putting together a writ petition can be quite complex, both because of the rules that apply and the tight timeframe within which everything has to be pulled together. While writ petitions have something in common with appellate briefs, they are not the same in terms of their content or format — rather, they are really a hybrid that blends the style and content of a pleading in a trial court with that of a brief on appeal.
With writ petitions, as with appeals, it makes sense to consult with a specialist.
Writs introduced
Unlike appeals, which are heard as a matter of right, appellate review of writ petitions is discretionary. So even if a trial court ruling is patently incorrect, an appellate court is not required to grant a writ petition or — usually — even to consider it on the merits. A litigant will probably be required to wait until the whole case is over in the trial court and the appeal process begins. As shown below, one has to make a particular type of showing in order to have a realistic chance of obtaining relief through the writs process.
Denials of writs usually take a “summary” form. Instead of the written opinion at the end of an appeal, a writ is typically denied with a one-sentence order. The petitioner can be left to guess at the reasons. The good news is that the whole process is at least a lot faster than an appeal — the decision can come in days rather than months. There is no right to oral argument before summary denial.
When a writ petition is denied, you might be left wondering whether this happened because the court decided not to address the legal issues on the merits (on the basis that the subject was not adequately “writworthy”), or because it was considered on the merits but the court disagreed with your argument. This is because even those petitions that are considered on the merits can be denied in a summary manner.
One way in which you might get a sense of how far your petition advanced is whether or not the court requested informal or formal briefing in opposition. If such a request is made, it tends to suggest that the writ petition is being taken somewhat seriously. That said, oppositions are often filed without the court asking for them, so this method of reading the mind of the court does not always work (added to which there are local variations in the rules concerning how and when opposition briefing is requested).
Why writs are disfavored
More than 90 per cent of writ petitions are denied. As indicated above, denial does not necessarily mean that the matter has been turned down on the merits — and (for the most part) you can still get your chance to raise the same issue on appeal at the end of the case.
The reason for the poor success rate of writ petitions has to do with appellate courts’ reluctance to engage in piecemeal review of trial court proceedings. The system does not want to make it too easy for litigants to jump to the front of the line in terms of getting the attention of the appeals process. Also, the Court of Appeal factors in the possibility that a trial court might end up correcting its own error as a case progresses, or that the error will prove inconsequential or that the case will anyway settle.
However, writ petitions are not hopeless. While fewer than one in 10 of all petitions succeeds, this statistic is skewed by the fact that a very large number clearly do not meet the criteria — they are doomed from the outset because the subject matter and the circumstances of the case are unsuitable even if the legal argument has merit.
The policy against writs was summed up by the Court of Appeal in a published decision, Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272-1273:
“Writ relief, if it were granted at the drop of a hat, 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 of prohibition to stop the ordinary progress of the action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen….
“Particularly today, in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation… Were reviewing courts to treat writs in the same manner as they do appeals, these courts would be trapped in an appellate gridlock.
“This in turn would cause ordinary appeals, waiting for review, to be shunted to the sidelines. One writer sees a writ petition as being a device used to “cut into line” ahead of those litigants awaiting determination of postjudgment appeals… The Court of Appeal is generally in a far better position to review a question when called upon to do so in an appeal instead of by way of a writ petition. When review takes place by way of appeal, the court has a more complete record, more time for deliberation and, therefore, more insight into the significance of the issues. Unlike the ordinary appeal which moves in an orderly, predictable pattern onto and off the appellate court's calendar, writ proceedings follow no set procedural course.
“Further, some issues may diminish in importance as a case proceeds towards trial. Petitioners seeking extraordinary writs do not always consider that a purported error of a trial judge may (1) be cured prior to trial, (2) have little or no effect upon the outcome of trial, or (3) be properly considered on appeal.” (Internal quotations and citations omitted.)
Part of planning for a successful writ is to understand the reasons why they are usually disfavored — and to argue around these points.
What it takes for a writ petition to succeed
On the positive side, the California Supreme Court has, in a variety of decisions, stated general criteria for determining when writs should be dealt with on the merits:
- The issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue.
- The trial court’s order deprived petitioner of an opportunity to present a substantial portion of his or her cause of action.
- Conflicting trial court interpretations of the law require a resolution of the conflict.
- The trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case.
- The party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief.
- The petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.
In order to bring a successful writ petition, it is imperative to convince the appellate court that your issue simply cannot wait for a conventional appeal taken after entry of judgment. If you cannot make a convincing argument on this point, a writ petition is most likely not worth the expense.
Opposing writ petitions
Conversely, if one is opposing a writ petition, the two messages to communicate are “unique” and “boring.” If a case deals with a “unique” set of circumstances, it lacks the widespread interest that makes it deserving of writ review. If it is “boring,” it probably isn't the type of case that the court will want to promote to the front of the line.
The different types of civil writ petitions
Not all civil writs are the same. One way of categorizing them is between those that prohibit a lower court from doing something, and those that mandate something. However, many writ petitions can be framed either way — and the Court of Appeal is unlikely to focus very much on how the petition is styled in that respect. The more crucial distinction is between those for which there is provision in a statute, and those whose basis is in the common law.
The California legislature has made writ petitions the only method of obtaining appellate review of certain types of trial court decisions. Where statutes make writs the sole method of review, failure to file a petition in a timely manner will mean that a litigant has waived the right to any appellate review. And the time period allowed for filing a statutory writ can be very tight — as little as 10-20 days depending on the statute. Certain other statutes make specific provision by review by means of a writ petition, but do not mandate it as the only type.
There is no fixed time for filing a nonstatutory writ, but most authorities agree that 60 days from the date of the lower court's decision is the outside for falling within the “reasonable time” requirement. Sooner is better — leaving it to the last minute tends to undermine the potency of the “irreparable harm” argument that needs to be made. If the court sees that a litigant sat on an issue for six weeks before filing the petition, it might doubt the urgency of the situation.
Arguably, where a statute provides for writ review, the Court of Appeal is more likely to consider a petition on the merits than where the petition relies solely on the common law. Where writ petitions form the only basis of appellate review, you can assume that your petition will be considered on the merits — but it may nonetheless be denied in a summary manner without any explanation of the grounds.
Writ logistics
The logistics of putting together a writ petition can be quite complex, both because of the rules that apply and the tight timeframe within which everything has to be pulled together. While writ petitions have something in common with appellate briefs, they are not the same in terms of their content or format — rather, they are really a hybrid that blends the style and content of a pleading in a trial court with that of a brief on appeal.
With writ petitions, as with appeals, it makes sense to consult with a specialist.