Judges are human, which means that they can make mistakes. I can tell you from years of practice that once a judge makes a decision, it is very hard to get the Judge to change his or her mind. One thing to try is a motion for reconsideration. But those are very dangerous. Asking a Judge to take a look at the same thing a second time is not something a Judge appreciates very much. What about simply appealing the decision? Sometimes that won’t work.
The problem with appeals is that usually, you have to wait to the very end of all of the proceedings in order to appeal. So what do you do when the Judge makes an adverse decision and you can’t wait for the case to be entirely over to seek review? The answer is: You take a writ.
A writ is an order issued by the reviewing court to an inferior tribunal, usually the trial court, directing it to do something or prohibiting it from doing something. Generally, writs are brought to ask the Appeals Court to order the trial court judge to change its decision. They are usually based upon the judge making an error of law or abusing his or her discretion.
How do writs work? The first, and perhaps most important thing to understand about writs is that they are entirely discretionary with the reviewing court. What does that mean? It means that the reviewing court gets to decide whether it even wants to hear the matter. Everyone has a right to appeal a decision. But with a writ, you must first convince the appeals court that there is no adequate remedy in the ordinary course of the law. And, you must also convince the higher court that you will suffer irreparable injury if the writ is not granted. As one can imagine, writs are seldom granted.
But there are cases where they are desperately needed and if they are brought, it is likely that they will be granted. Suppose you are in litigation and you have a document that you believe is confidential or privileged. You don’t want to turn it over to the other side. But the Judge orders you to do so, finding that the document is not privileged. You feel that the Judge has made a mistake of law. The case isn’t over so you can’t appeal. What do you do? That’s right, you take a writ. Once the document is turned over to the other side, the cat is out of the bag and it is very hard to be put it back in. So asking the Court of Appeals to review the trial court’s ruling in its discretion is the best way to proceed.
If you pick your battles and use writ review sparingly, it can be an important arsenal in the litigators’ bag of tricks.
For all of your litigation and family law needs, contact the law offices of Richard A. Marcus 661-257-8877.