HOW TO IMPROVE (AND NOT BLOW!) YOUR CHANCES FOR OBTAINING APPELLATE WRIT RELIEF

Written by Randee Barak & Daryn Pakcyk

The trial court erred! Request an immediate stay! The petition’s fiery red cover (in the old days, before electronic filing) screams for the court’s attention. The appellate court writ attorney’s heartbeat quickens and all other work stops as the attorney’s urgency assessment begins: Is it a "hot writ?" That is, should everything else the writ attorney and justices are working on be set aside to review whether a stay order should immediately issue? If the petition is even potentially "hot"— it cannot await review at the justices’ weekly writ conference — the writ attorney will promptly bring it to the justices in the division to determine whether the stay request should be granted. If the justices conclude an immediate stay is warranted, the stay order will typically issue in a very short time, usually the same day. Whether or not a stay is granted, the writ attorney will dutifully work up the matter and discuss it with the justices during the next weekly writ conference. Having reviewed the petition and supporting documents and discussed the matter during their writ conference, the justices will then decide whether to summarily deny the petition, request a preliminary response, issue an order to show cause or alternative writ, or decide on a different course.

While the above scenario is fairly typical, all too frequently, the party seeking writ relief has failed to explain why the error cannot be cured by appeal or how the alleged error has caused, or will imminently cause, irreparable harm, an omission virtually guaranteeing the petition will be summarily denied. And, that request for an immediate stay? Too often the petitioner or their attorney has created the urgency by failing to challenge the now weeks’ or months’ old order until the eve of trial. Other times there is no urgency at all — the challenged order is not set to occur for months — and the attorney seems to have included the request as part of a misguided "no harm, no foul" strategy. Finally, there’s that frustrating point for the court when the petition on its face may suggest the issue is appropriate for emergency review but the record omits critical information, making any meaningful review impossible and virtually guaranteeing the petition will be denied for an inadequate record.

"How can that be?" you ask. Any solid practitioner mindful of the law governing writ practice would know better. Well, to be fair, many do. But, because these errors are more common than you might think, this article briefly addresses best practices and common pitfalls in petitioning for writ review in the appellate court.