What is a writ, and do I need one?

By Richard A. Marcus, Esq.


Judges are human. Which means that sometimes they 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 the Judge to look at the same thing twice is not something a Judge appreciates very much. A common misconception is that you can simply appeal. But the problem with appeals is that usually, you have to wait to the very end of all of the proceedings in order to appeal anything.

So what do you do when the Judge makes an adverse decision and you can’t wait for the case to entirely over to appeal. 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.

How do writs work. The first, and perhaps most important thing to understand about writs are that they are entirely discretionary with the reviewing court. That means the reviewing court gets to decide whether it wants to even hear the matter. Everyone has a right to appeal a decision. That is why it is called an “appeal as of right”. But with a writ, you must convince the appeals court that there is no adequate remedy in the ordinary course of the law. And, you must convince the court that you will suffer irreparable injury if the writ is not granted. For example, harm or prejudice that cannot be corrected on appeal. Writs are seldomly granted.

But there are cases where they are needed. 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. And you feel that the Judge has made a mistake. Now would be a good time for 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 put it back in. So asking the Court of Appeal to review the trial court’s ruling in its discretion is the best way to proceed.