What is a "writ"?

"I'll take a writ!" exclaims the lawyer. I guess we're supposed to understand that somewhere, somehow there's some immediate magical cure for error in the trial courts.

Our legal system is based upon a hierarchy of courts, the higher court having jurisdiction to review the lower court. Direct appeal, explained here , takes place after a case is over in the trial court. But, what happens if you new a ruling from the higher court during an ongoing case?

There are several different types of "writs." Generally, a writ is an order from a court with jurisdiction (the power to make a ruling). A writ may be issued at any level of the courts. However, the writs we commonly encounter are writs for extraordinary relief issued by the Court of Appeal and/or the Supreme Court.

 

A writ for extraordinary relief comes in two general forms: mandamus and prohibition. A writ of mandamus compels the lower court to do something. A writ of prohibition prevents the lower court from doing something. An example giving rise to writ proceedings would be the erroneous exclusion of evidence or the erroneous issuance of temporary orders. Petitions for writ of mandamus or prohibition are emergency in nature.

The process for obtaining a writ of mandamus or prohibition begins with the filing of a petition for writ of mandamus (or prohibition) in the higher court. The petition outlines the grievance with the lower court. Petitions for a writ are reviewed cursorily and they are difficult to win. The writ petition must be very compelling to prevail. If a writ is issued, the lower court will be compelled to act in accord with its orders.

What is the time frame for taking a writ? There is no hard and fast rule for the time to take a petition for a writ. The time frame is based "in equity" as 60 days from the date of the erroneous lower court decision. However, waiting 60 days may telegraph lack of urgency. The rule generally observed is, "If it's an emergency, act like it's an emergency." Get your writ petition in immediately.

Petitions for issuance of a writ may also be used in review of administrative proceedings. For example, an adverse finding by the Department of Motor Vehicles may be challenged in the superior Court on petition for writ of mandamus.

Writ petitions require careful planning despite preparation on a short time frame. Stay orders must be separately requested. Accordingly, qualified counsel should be immediately consulted where a litigant requires emergency action by way of petition for writ of mandamus or prohibition.