Four Things Every Trial Lawyer Should Know About Civil Writs

by Jeffrey Lewis

This post is the sixth in an ongoing series about maximizing a party’s chances of prevailing on appeal.  A frequently asked question by trial lawyers is whether and when to seek review of a trial court order by way of a petition for writ of mandate or prohibition (“writ”) instead of a direct appeal following entry of judgment.  Here are four things every trial lawyer should know about filing civil writs in California’s courts of appeal:

1.   Sometimes writs are the only way of securing appellate review of an order.  Certain orders are only reviewed by way of a writ.  The failure to file a writ will preclude appellate review after the judgment.  Four examples of trial court orders that may only be reviewed by way of writ are:

2.  Writs are rarely granted.  Before devoting the considerable time and costs of preparing a writ, consider the statistics and advise your client accordingly.  Approximately 90 percent of writs are denied.  In  2013, for original proceedings, such as writs, filed in the California Court of Appeal, 8,591 trial court orders were affirmed, 954 were reversed and  295 were dismissed.  (See California Court Statistics for 2013 by the Judicial Council).

3.  Some writs have strict time limits.  Writs come in two flavors: statutory and common law.  The former usually have strict, short time limits the latter typically have a 60-day time limit.  For example a writ seeking review of an order on a motion to expunge a lis pendens must be filed within 20 days of notice of entry of the order.  (Mix v. Superior Court (2004) 124 Cal.App.4th 987, 997-98).  Likewise, a writ filed to challenge a ruling on a petition to change venue must be filed within 20 days.  (Code Civ. Proc., § 400).  Common law writs, on the other hand, typically have a 60-day deadline for filing.  (People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 682).

4.  Only some circumstances will result in a writ getting granted.  To prevent the chaos that would ensue if every court order were challenged by way of writ, California courts have developed criteria for the issuance of writ relief.  Presiding Justice Arthur Gilbert of Division Six of the Second District Court of Appeal summarized these factors as follows:

(1) the issue tendered in the writ petition is of widespread interest (Citations.) or presents a significant and novel constitutional issue (Citations.); (2) the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action (Citations.); (3) conflicting trial court interpretations of the law require a resolution of the conflict (Citations.); (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case (Citations.); (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief (Citations.); and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal (Citations.).

(Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-74, emphasis added).

Writs are a tricky area even for the experienced litigator.  When faced with an unexpected and harmful order, consider consulting with an appellate specialist before deciding to file or forego writ relief.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.