Writ Petition Tips and Strategies

Petitions for writs of mandamus, prohibition and certiorari are called “extraordinary” because they are issued outside the ordinary course of a case and only in limited circumstances. Filing a writ petition in Nevada’s appellate courts can be complicated because you must convince the court that your petition is justified and the requested relief is significant enough to warrant the court’s attention. The petitioner carries the burden of demonstrating that extraordinary relief is warranted. If a petition fails to meet specific requirements, the clerk may issue a written notification of the deficiency and provide an opportunity to cure, or a seriously defective petition may be denied without explanation. For that reason, writ practitioners must ensure all requirements are satisfied.

Litigation and appellate attorney Chelsea Latino, author of the Writ Petitions chapter of the 2021 edition of the Nevada Appellate Practice Manual, provides the following outline of some of the most important issues to understand and factors to consider when contemplating a writ petition and formulating a strategy. Chelsea’s outline is provided as a general summary and she is available to discuss and advise on applying her summary to the details of your specific situation.

  1. Understanding the Difference of the Three Writs
  2. Factors to Consider Before Petitioning for Appellate Court Review
  3. Persuading an Appellate Court to Exercise Power of Review
  4. Cases that May Warrant Writ Relief
  5. Cases Where Writ Relief Is Unlikely to be Available
  6. Writ Petition’s Impact on the Appellate Process

 

  1. Understanding the Difference of the Three Writs
  • Mandamus – compels the performance of a clear and mandatory duty to act or controls a manifest abuse of discretion or an arbitrary or capricious exercise of discretion
  • Prohibition – prohibits the exercise of judicial functions in proceedings where no jurisdiction exists (if the proceedings have been completed, then there is nothing to prohibit, and another remedy such as direct appeal or certiorari may be more appropriate)
  • Certiorari – may issue when an inferior tribunal, board or officer exercising judicial functions has already exceeded its jurisdiction and there is no remedy by appeal (also called writ of review)

 

  1. Factors to Consider Before Petitioning for Appellate Court Review
  • First seek relief in the district court prior to petitioning the appellate court for writ relief. Only in the most unusual or significant cases may an appellate court be willing to entertain a writ petition without prior district court action.
  • Writs share characteristics of an appeal because the appellate court is asked to review the actions of a lower tribunal. As in an appeal, the petitioner should preserve all issues for review by giving the lower court an opportunity to consider them.
  • Appellate courts have original jurisdiction to issue writs and will consider doing so only when a petitioner does not have plain, speedy and adequate remedy in the ordinary course of the law.
  • Appellate courts rarely entertain a writ petition when the matter may be reviewed on appeal from final judgment.
  1. Persuading an Appellate Court to Exercise Power of Review
  • Provide a common-sense explanation why urgency exists
  • Explain fully why the issue should not wait until a final judgment
  • Treat the issue as important, urgent and extraordinary or the reviewing court will not
  • Seek writ relief as soon as possible after receiving the order sought to be challenged
  • Points and authorities should contain cases in which extraordinary relief has been granted in analogous situations
  • Recognize that an appellate court generally will address only legal issues
  1. Cases that May Warrant Writ Relief
  • Cases that present a substantial issue of general importance
  • Matters of first impression that may be dispositive in the case at issue
  • When an important issue of law requires clarification
  • In the interests of judicial economy
  • Where a party will suffer serious and irreparable harm absent intervention
  1. Cases Where Writ Relief Is Unlikely to be Available
  • If an immediate appeal is available
  • If an appeal from an eventual final judgment is available (even though issuance of a writ might avoid wasting the time and expense of a trial)
  • When, if granted, a writ would resolve only part of the underlying action

 

  1. Writ Petition’s Impact on the Appellate Process
  • Time for filing a notice of appeal continues to run regardless of filing a writ petition.
  • Even if writ relief may be appropriate when an appeal is also available, practitioners should file a notice of appeal when the judgment or order is appealable because the availability of an appeal will generally preclude writ relief.
  • Evaluate the order from which you seek writ relief to ensure it is not independently appealable. If the petition for extraordinary relief is denied, the time for filing a notice of appeal will likely have expired, and the petitioning party will lose all opportunity for appellate review.

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