September 01, 2015

Will Your Writ Petition Survive the Appellate Emergency Room?

Kent L. Richland

If you are an experienced litigator, this has happened to you. The trial judge has largely gutted your case with a flagrantly erroneous pretrial ruling. Because there’s no final judgment, there’s no right to immediate appeal. You are left with an unpalatable trilemma: Ask the judge to reconsider (fat chance!), go through a whole trial and then appeal, or file a writ petition in an appellate court. You’ve heard writ review is tough to get, but (1) realistically, this judge will not reconsider, (2) going to trial is extremely expensive, and (3) anyway, your case is different—a first-week law student could see how badly the trial judge blew it.

So you dig out a writ petition form, cannibalize your motion papers for the legal content, and stitch together a petition so compelling no sane appellate judge could deny it. Two days later—before the other side even files opposition—the appellate court denies your petition. No reasons given. No further explanation.

What’s going on? Aren’t appellate judges paid to decide exactly this kind of case?

The Appellate Court's Reality

Understanding why the great majority of writ petitions are summarily denied requires looking at the situation from the appellate court’s point of view. And as all good advocates know, seeing one’s case from the viewpoint of the decision maker provides important insights into how to present the case persuasively. So what do appellate justices think about when they are confronted with a writ petition?

As always, context is all-important, and an appellate court’s attitude toward writ petitions is largely shaped by the rest of its caseload. The core of every appellate court docket is regular appeals—in fact, appeals alone normally keep the appellate court fully occupied. Appeals are cases that have traversed the trial court system to final conclusion in that forum. They may have been in the trial court for months or years, but they share a common thread: The parties have seen the case through to its natural end there, and nothing more will happen in the trial court to affect the appellate proceedings.

Writ petitions are very different. By definition, they seek review while trial court proceedings continue. Appellate courts can’t help but view writ petitioners as “cutting in line”—asking that their issues be heard before those of others who have patiently waited their turn. And there are other good reasons for an appellate court to grant writ review sparingly. If left to play out in the trial court, a lot can happen to change the appellate dynamic dramatically. The case can settle and go away completely. Or the victim of the error can win anyway, eliminating any motivation for an appeal. At the very least, completion of the matter in the trial court will almost always shed light on the seriousness of the error, improving the appellate court’s ability to evaluate on appeal any prejudice to the complaining party.

Moreover, the fact that the trial court continues to have jurisdiction while the appellate court is entertaining the writ petition can have serious consequences. For one thing, unless the appellate court stays the trial court proceedings, trial court rulings can make determination of the petition a moving target. But issuing a stay is itself tricky: A stay is certain to disrupt the trial court’s calendar, and it invariably slows down the litigation process. And deciding on the scope of the stay—whether to stay all trial court proceedings or only those directly related to the issue involved—is always a shot in the dark for an appellate court that has seen only a sliver of the case.

So given this bleak environment—an audience of appellate judges with a full workload of appeals who are reluctant to devote their valuable time to complicated “emergencies” that may well correct themselves over time—what can you do to maximize the chances that your petition will be one of the rare ones that is heard?

As it turns out, physicians sometimes operate in a very similar environment as the appellate system described above. And the system they have worked out for deciding how best to allocate their time in those circumstances can provide valuable insights for the advocate contemplating a writ petition.

Think "Triage"

Triage was developed by French physicians during the Napoleonic Wars as an approach to treating battlefield casualties in military hospitals, where resources are stretched thin by a constant influx of demand for medical services. In need of a method to prioritize treatment of patients with a wide variety of clinical presentations, the doctors formulated a tiered analysis of the severity of the injury and prognosis of the patient with and without immediate treatment. At its most basic level, triage entails classification of patients into three treatment categories: immediate (patients who will die or suffer profound irreversible injury without immediate treatment), urgent (patients with a serious or potentially life-threatening injury but whose medical treatment can be delayed), and minimal (patients with injuries that can be expected to resolve themselves or are so minor that they can be treated by the patients themselves or with minimal medical care).

As regards its writ docket, an appellate court is much like an emergency room. In dealing with these cases that compete for its immediate attention, the appellate court must allocate its scarce resources in the most effective way possible. As a result, appellate judges approach writ petitions—consciously or unconsciously—with a triage-informed state of mind. Petitions presenting problems that will result in genuinely irreparable, irreversible injury in the absence of “immediate” appellate court intervention are the best candidates for a grant of writ review. Where the problem presented in a writ petition is “urgent”—a serious problem, but one that does not require immediate attention in order to prevent imminent harm—an appellate court will be reluctant to grant writ review unless there is some other strong reason for doing so. And writ petitions that present relatively ordinary, “minimal” issues that will probably resolve themselves without intervention or can eventually be dealt with effectively on an appeal after judgment are easy denials.

As explained below, by keeping these triage categories in mind when contemplating and drafting the writ petition, a petitioner can significantly increase the chances of obtaining writ review.

Applying Triage Principles

Triage principles can inform appellate writ practice in several ways. First, the triage categories form a useful sieve for determining which cases makes sense to pursue as a writ petition in the first place. Where the issue is one that comfortably fits in the “minimal” category, it would almost certainly be a waste of the client’s resources and the attorney’s time to seek appellate writ relief. For example, most ordinary errors in the admission or exclusion of evidence, whether at the in limine stage or during trial, are poor candidates for writ review because of the high probability that the error will turn out to be non-prejudicial once the matter is tried—either because the complaining party ends up winning or because the evidence in question doesn’t prove crucial to the outcome.

But thinking in triage terms is also enormously helpful in planning and drafting a writ petition. Because the triage categories comprise a spectrum, the closer to the “immediate” end of the spectrum a case appears to be, the more likely it is that writ review will be granted. Consequently, a petitioner should always be thinking about how to emphasize the aspects of the case that push it higher on the triage spectrum.

“Immediate” cases. Cases in which the harm from error will truly be immediate and irreparable in the absence of writ review are relatively rare. But there is one rather common type of error that does meet all the criteria for “immediate” treatment: a trial court order erroneously overruling a claim of privilege. Because the trial court’s ruling will result in disclosure and the entire purpose of the privilege will be destroyed in the absence of appellate relief, an appeal after the trial is no remedy at all. For obvious reasons, an order upholding an invocation of privilege is not in the same category—it is more like ordinary evidentiary error.

Other kinds of error that border closely on the “immediate” category are so-called structural errors—errors that deny a party some fundamental right that is essential to the trial process. Examples are the denial of the right to jury trial or the disqualification of a party’s counsel of choice. Although structural errors are not irreversible in the same sense as requiring disclosure of privileged information, they are not subject to the harmless error rule. Consequently, if the party prejudiced by the error loses the trial, that party has a built-in means of obtaining reversal.

“Immediate” and “borderline immediate” cases are the best candidates for writ review so long as the appellate court is convinced the ruling was error, or at least worthy of further briefing. Thus, in these cases it is particularly important that the petitioner demonstrate not just the need for immediate relief but that the trial court’s ruling was indeed erroneous.

“Urgent” cases. Cases can be described as “urgent” where the trial court has committed a very significant error that threatens all or a substantial part of a party’s case. There are endless variations on errors that fit in this category, but an example would be the trial court’s disqualification of a party’s damages expert.

As serious as such circumstances seem to the party affected, these cases generally do not stand a strong chance of getting writ review absent some other factor important to the appellate court. The appellate court’s calculus is that even what appears to be serious error will likely sort itself out in the trial process, and the worst-case scenario is that sooner or later the issue will present itself in a normal appeal.

But “urgent” cases can be made more attractive for writ review. For example, if it can be demonstrated that the case presents an issue of widespread importance or that the error involves a significant or novel legal issue or an issue on which the courts are divided, the appellate court may well view the writ petition as a good vehicle for it to elucidate an important issue.

“Minimal” cases. Cases of ordinary, everyday error are highly unlikely to catch an appellate court’s attention for purposes of writ review; no matter how fascinating the legal issue, few appellate courts will be tempted to intervene. Unless an error is both very significant to the case and involves an issue that transcends the interests of the parties, the odds of getting writ review are vanishingly small—about the same as a cold sufferer has of getting immediate treatment in an emergency room.

Conclusion

When an appellate court functions as an emergency room—as it does when dealing with writ petitions—it should come as no surprise that emergency-room concepts such as triage will have some application. The potential writ petitioner who considers triage principles in both evaluating and preparing a writ petition will gain valuable insights that can conserve resources and substantially improve the chances of success.

Kent L. Richland

Kent L. Richland (krichland@gmsr.com) is a founding partner of the civil appellate law firm Greines, Martin, Stein & Richland LLP in Los Angeles, California.