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A writ petition is a filing that a party makes with an appeals court in order to secure a speedy review of some issue. Writ petitions are facets of English common law, and are used in legal systems following the common law model, including those of the United States, Australia, and India. A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision.
Writ practice is governed by a complicated set of rules and specifications that varies by jurisdiction. Most writ petitions are unsuccessful, regardless of where filed. There are several different kinds of writ petition, but all have one thing in common: they are asking an appellate-level court to take some extraordinary action, and intervene in another court’s process to institute some higher legal remedy or legal relief.
The most common writ petitions are writs of mandamus and writs of prohibition. Writs of mandamus ask an appellate court to issue a court order requiring that a lower court do something, while a writ of prohibition asks the court to prohibit a lower court from doing or enforcing something. A writ of certiorari is a writ sent to the highest appellate court, which in the United States is the Supreme Court. A writ of certiorari seeks Supreme Court review and decision in a case that has exhausted its appeals and is otherwise at the end of the line.
The timing and proper form of a writ petition is usually set out in a statute. Most of the time, the requirements are quite different from other filings, and an improperly submitted writ is usually denied automatically. Writ practice is often its own sector of legal practice, and there are lawyers who devote the bulk of their time to researching and filing writs on behalf of clients.
Even a writ petition that methodically follows every filing procedure is not guaranteed success. In fact, the vast majority of writ petitions are summarily dismissed. To be successful, a writ petition must convince the appeals court of at least one of two things: (1) the issue for the court to review is of broad community interest; or (2) that without review, the petitioner stands to be seriously harmed. In other words, the lower court’s error was so bad that justice cannot be served without immediate intervention.
Most writ petitions are filed with appellate courts after case initiation, but before trial has begun. Sometimes, issuing a writ petition is a strategy to avoid going to trial at all. If the petitioner can point to something in the discovery or pre-trial proceedings that was in error, he can use that error as the basis of a writ petition to seek intervention and stay the trial.
Intervening in trial is a serious matter, and appellate courts will not usually break up the flow of trial court process unless there truly is an extraordinary circumstance. The common law court system is designed to allow each court to fully examine and rule on the facts of any given case. Writ petitions allow for an exception to this design, but exceptions are never the rule.
A petitioner who has a writ petition denied is still able to file a court request for a traditional appeal, though that will usually require a wait. The only exception is a writ of certiorari. If a writ of certiorari is denied, the case is over, and the ruling of the highest court on record is binding.
Do writ petitions pit desperation against procedure? It seems like they do.
On one hand, as the article says, writ petitions are difficult to submit and often denied. Perhaps courts do this in an attempt to distract future petitioners?
However, the fact that there is an entire legal sector dedicated to these petitions suggests that those desperate to avoid trial are willing to give them a shot.
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