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Custom Legal Writing Services. Appeals Paralegal provides Custom Appellate Brief Writing Services, including legal research, write & deliver in under 72 hours for Custom Written Appeals, Appellate Briefs, Bankruptcy Court Appeals, Writ of Mandamus, Certiorari Writ Petitions & more.
Appeals Paralegal is the nation’s only paralegal legal writing service specializing in the researching and writing of custom written opening briefs, reply briefs, response briefs, writs and all appellate motions in all US federal and state courts. Appeals Paralegal provides full paralegal services to supervised individuals, businesses and to attorneys. Appeals Paralegal is not a law firm or a substitute for an attorney.
We are the lowest cost and the largest paralegal service in the nation specializing in the researching and writing of appellate briefs, opening briefs, response briefs, and reply briefs in all US federal and state courts. We are a proud PayPal verified US business and transact all our financial transactions through PayPal which accepts all credit and debit cards.
We deliver printer ready briefs to our clients in as fast as 48 hours. Our services consist of legal research, writing and formatting appellate briefs for all appellate courts including writ petitions to the US Supreme Court. We utilize Lexis/Nexis and Westlaw as our research services. We are also a subscriber to Pacer.
Our services to our clients commence with the submission to us of the judgment which is the subject of the appeal, the appellate points to be argued and the lower court record. We will ask for the date which the printer ready brief should be delivered. We recommend that this should be in advance of the date needed to submit the brief to the appellate printer, if applicable. In the alternative, this date should be in advance of the time needed to serve and file the brief. We format the brief in court required font size, double spaced, one inch margin throughout. We will also research the appellate court’s formatting requirements for the brief cover page color, font, binding and number of copies of the brief to be served and filed.
We want your business. For this reason, our fees are always negotiable to accommodate your personal budget. Please note that the Appendix, Record on Appeal and Abstract are separate documents required by some appellate courts. You may wish to compile these documents yourself or we can do this task for you.
THE APPELLATE BRIEF CONTENTS
Table of Authorities.
The Table of Authorities enables a judge to turn immediately to the pages of your brief discussing a particular case. It is an important and timesaving cross-reference when reading the briefs and while writing the opinion.
Issue Presented.
The Issue Presented is page one of your brief. It answers the question for the judge. What do I have to decide?
Statement of the Case.
The Statement of the Case first describes the pertinent procedural history of the case and then the facts. The idea is to give the judge a preliminary sense of how the case got there and what must be decided. Is it a challenge to the sufficiency of the evidence to support a jury verdict? Was the complaint dismissed for failure to state a claim upon which relief can be granted? You must demonstrate that the issue presented was properly raised below and that a timely notice of appeal was filed.
Statement of Facts.
The Statement of Facts is usually the most important section of the brief. Tell the story of the case. Document each fact with a record reference. Save the argument for later.
The Argument.
Your brief should address the standard of review. On a pure question of law, the appellate court makes its own de novo determination of what the rule of law should be. Abuse of discretion is a standard that defers to the trial judge’s decision to some extent. Your brief must address what standard of review the court should apply. The Argument section of the brief is where you must demonstrate your legal reasoning.
The Conclusion.
The Conclusion must be specific about the relief you want. If possible, alternate relief should be set forth.
Addenda.
Reproducing the text of statutes and regulations helps the appellate court refer to law without the necessity of doing excessive legal research.
Writing Tools
In addition to thorough legal research through sources such as Lexis, Westlaw and LOISLAW, a good dictionary and thesaurus are necessary. You must also have available Black’s Law Dictionary, Richardson on Evidence and The Bluebook on legal citations.
Depending on your budget, you may want to use an appellate printer. If this is not an option, office printing centers can offer you grades of paper in conformity to appellate court rules as well as indexing and binding for a professional presentation.
Calendaring
Appellate practice requires adherence to service and filing rules which each appellate court has set forth.
THE APPELLATE PROCESS
An appeal typically begins with filing a notice of appeal in the trial court which ruled unfavorably against one of the parties. This party becomes the appellant; the party who received the trial court’s favorable ruling is known as the respondent. After filing a notice of appeal, the appellant selects materials from the lower court record that the appellant would like to present to the appellate court and use in the appeal.
The Appellate Briefs
The appellant begins with an opening brief. The appellant’s brief sets forth the errors of fact and law made at the trial level and the basis for appellate reversal.
The respondent then submits a responsive brief which sets forth reasons why the trial court reached the correct decision and why the appeal should be denied.
If the respondent has raised new issues of fact or law, the appellant has the opportunity to counter these through the filing of a reply brief.
An appeal is not a new trial. Appellate courts do not retry cases or hear new evidence. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied. Because of the limited nature of this review, the issues properly raised on appeal are significantly different from those that are raised at trial.
The appellate court will usually defer to the trial court or jury on factual issues. However, the appellate court has the final word on what the law is. On issues of law — for example, the interpretation of prior case law, or a statute, or the Constitution — the appellate court will not defer to the trial court but will instead independently decide the issue.
If the appeal is based upon the granting of a summary judgment motion, the appellate court will usually review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.
On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial — that is, likely to have changed the outcome — during the trial. Thus, minor legal errors are usually not grounds for a reversal. This rule is often referred to as the “harmless error” rule.
The appellate panel will usually issue a written opinion explaining why it reached the decision that it did.
Appealing the Appellate Court’s Decision
A party who is dissatisfied with the results on appeal can petition a higher state appellate court to review the case. If a federal issue is involved, the U.S. Supreme Court can accept appeals from the state courts. Except in death penalty cases which are automatically reviewed at the highest state and federal court level, a state’s highest court or the U.S. Supreme Courts are not required to take any particular case for review. They choose what cases they will decide.
Bankruptcy Court Appeals
A. Time and Method for Filing a Notice of Appeal
A notice of appeal must be filed with the bankruptcy court within 14 days of entry of the judgment, order, or decree appealed from.
B. Tolling Motions
If, within court mandated days of entry of the judgment, order or decree, a party files a motion to amend or make additional findings of fact to alter or amend the judgment, or for a new trial, then the the days for filing an appeal runs from the entry of the order disposing of the last such motion.
C. Premature Notice of Appeal
A premature notice of appeal (a notice of appeal filed after the announcement of a decision but before entry of the judgment or order) is treated as filed after such entry and on the day thereof.
D. Appeal Fees and In Forma Pauperis Motions
A filing and docketing fee is required and should be made payable to the Clerk of Court. The fee should be paid to the bankruptcy court at the same time the notice of appeal is filed. The BAP routinely transfers In Forma Pauperis motions to the district court from which the appeal arises for the limited purpose of granting or denying the motion; the cases are then returned to the BAP for determinations on the merits.
E. Election to the District Court (Opt-Out)
The appeal from the bankruptcy court automatically goes to the BAP unless a party timely elects to have the appeal heard by the district court.
F. Petition to Appeal Directly to Court of Appeals
Where the underlying bankruptcy case was filed on or after October 17, 2005, the parties may petition for permission to appeal directly to the Court of Appeals. Before the parties file their direct appeal petitions with the Circuit Clerk, they generally must first obtain a certification from either the bankruptcy court, the district court or the BAP,
A request for certification must be filed in and determined by:
i. the bankruptcy court, until a Certificate of Readiness has been received and filed by the BAP or district court, or a motion for leave or
ii. the BAP, after: (a) the BAP receives and files a Certificate of Readiness; or (b) the BAP grants leave to appeal; or
iii. (if an election has been timely filed) the district court, after: (a) the district court receives and files a Certificate of Readiness; or (b) the district court grants leave to appeal.
iv. The court in which the certification request is properly filed must serve the request on all parties to the appeal.
v. If all of the parties to the appeal unanimously agree that a direct appeal is appropriate, then their self certification must be filed in the appropriate court. While there is a sixty-day time limit for certification requests made pursuant to 28 U.S.C. § 158(d)(2)(B) there is no express time limit specified for self-certifications, or for a court certification made on the courts own motion.
vi. Once a certification is entered on the court’s docket, the parties have 30 days to file their petition to appeal to the Court of Appeals with the Clerk of the Court of Appeals.
vii. Absent an order to the contrary, neither the issuance of a certification nor the Circuits granting of a petition for permission to appeal suspends prosecution of an appeal before the BAP or the district court.
viii. If leave to appeal is required by 28 U.S.C. § 158(a) and has not yet been granted by the BAPor district court, the authorization of a direct appeal by a court of appeals under 28 U.S.C.§ 158(d)(2) shall be deemed to satisfy the requirement for leave to appeal. In general, the BAP has jurisdiction to hear bankruptcy appeals from final judgments, orders, and decrees. See 28 U.S.C. § 158. In addition, the BAP has jurisdiction to hear appeals from two types of interlocutory orders:
(1) Orders under 11 U.S.C. § 1121(d) increasing or reducing exclusivity time periods.
(2) Interlocutory orders as to which the BAP grants a motion for leave to appeal. The BAP lacks jurisdiction to hear appeals from interlocutory orders (except § 1121(d) orders) unless and until the BAP grants leave to appeal.
G. Definition of Finality
The standard for determining finality in the bankruptcy context is more flexible than in other areas. In contrast to an ordinary civil case where a complete act of adjudication ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, a bankruptcy order is final if it end[s] any interim disputes from which appeal would lie. An order can be appealed under the flexible finality doctrine if it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.
Granting or denying relief from stay
Regarding adequate protection
Confirming a chapter 11 debtors reorganization plan
Allowing or disallowing an exemption
Substantively consolidating bankruptcy cases
Approving a final application for compensation of professional
For sale of property to good-faith purchasers
Dismissing an action, even without prejudice.
Examples of orders held to be interlocutory include orders:
Denying a motion to dismiss a bankruptcy case or adversary proceeding
Granting a trustees motion to employ a professional pursuant to 11 U.S.C. § 327
Denying a motion for summary judgment
Granting partial summary judgment without the certification required by the law.
Imposing monetary sanctions against an attorney,
Granting a motion to reopen a bankruptcy case,
Dismissing a complaint with leave to amend
H. Separate Document Rule
FRBP 9021 requires that the order/judgment appealed must be entered on a separate document. The separate document rule applies in both contested matters and adversary proceedings, and any order that does not comply with the rule may be held to be not final.
I. Minute Entries / Minute Orders
A minute entry is a final order if it states that it is an order, was mailed to counsel, is signed by the clerk who prepared it, and is entered on the docket sheet. To be a final order, a minute entry also must include dispositive language sufficient to put the losing party on notice that his entire action — and not just a particular motion or proceeding within the action — is over and that his next step is to appeal.
J. Leave to Appeal
To appeal an interlocutory order, one must file a notice of appeal along with a motion for leave to appeal. Although filed in the bankruptcy court, the leave motion is to the Panel. The Panel is the court that grants or denies leave. The motion for leave to appeal must contain:
A statement of facts necessary to an understanding of the questions to be presented by A statement of the questions to be presented; A statement of the reasons why the appeal should be heard; and A copy of the judgment, order, or decree complained of and any opinion or memorandum.
K. Standard for Granting Leave to Appeal
Leave to appeal is usually limited to situations that would avoid wasteful litigation, involve a controlling question of law as to which there is substantial ground for difference of opinion, and would materially advance the ultimate termination of the litigation. The BAPs decision to deny leave to appeal is an exercise of discretion and generally is not open to review by the Court of Appeals.
L. Perfection of the Appeal
Within court mandated days after filing the notice of appeal, the appellant must file with the clerk of the bankruptcy court and serve on the appellee a designation of items to be included in the record (DOR) on appeal and must file and serve a Statement of Issues on Appeal. For appeals pending before the BAP, a DOR is not a copy of every item to be included in the record. It is a list of the items that make up the record, usually identified by docket number and filing date, as well as a description of the item (e.g. For appeals pending before the district court, litigants should check their district courts local rules for requirements regarding the DOR.
M. Completion of the Record
When the reporter completes the transcript, the reporter files it with the clerk of the bankruptcy court. The reporter is supposed to complete the transcript within 30 days, but may ask the clerk for an extension. When the record is complete, the clerk of the bankruptcy court transmits a Certificate of Readiness to Transmit Record to the clerk of the BAP.
N. Consequences of Incomplete Record
The burden of presenting a proper record to the appellate court is on the appellant. Unless the record before the appellate court affirmatively shows the matters on which appellant relies for relief, the appellant may not argue those matters on appeal.
O. Motions
Motions that are not case dispositive (e.g., extension of time to file briefs) may be decided by one or two judges, or by the BAP clerk, based on delegated authority.
P. Motions for Stay Pending Appeal
Requests for a stay pending appeal normally should be presented to the bankruptcy judge first. Parties may file a motion for stay pending appeal directly with the appellate court only if an explanation is given why relief was not first sought from the bankruptcy court. The bankruptcy court may require the posting of a bond as a condition of granting a stay pending appeal.
Q. Motions to Dismiss for Lack of Jurisdiction.
Appellants occasionally appeal an issue that the BAP does not have jurisdiction to consider for various reasons, including the appellants lack standing, the notice of appeal was untimely, or the appeal has become moot.
R. Emergency Motions
If the motion requests immediate action in order to avoid irreparable harm, the word EMERGENCY should appear in the title.
Always attach a declaration stating the nature of the emergency. Notify opposing counsel and state in a declaration when and how counsel was notified; there is a specific duty on the movant to make every practicable effort to notify opposing counsel in time for counsel to respond to the motion.
Include an appendix that contains a conformed copy of the notice of appeal and the entered judgment, order or decree from which the appeal was taken.
S. Legal Briefs
Historically, a briefing schedule was issued after the BAP clerk received a Certificate of Record from the bankruptcy clerk, and the appellants opening brief and excerpts of record were due 15 days hereafter.
Now, however, the BAP issues a briefing order in most appeals shortly after the appellant files the notice of appeal. Briefs are deemed filed on the day of mailing. The briefing order also sets a due date for the appellees responsive brief, usually 21 days after service of appellants opening brief. If the appellee has filed a cross-appeal, the brief shall contain the issues and argument pertinent to the cross-appeal, denominated as such, and the response to the appellants brief.
Reply Briefs.
If the appellant elects to file a reply brief, it typically is due 14 days after service of the appellees brief.
Contents of Briefs.
A table of contents, table of cases, statutes and other authorities, with references to the pages of the brief where they are cited;
A statement of the basis of appellate jurisdiction;
A statement of the issues presented and the applicable standard of review;
A statement of the case;
A statement of facts with appropriate references to the record;
An argument; and A short conclusion stating the precise relief sought.
8. Length of Briefs.
Except with leave of the Panel, the appellants and appellees initial briefs shall not exceed 30 pages and reply briefs shall not exceed 20 pages, exclusive of pages containing table of contents, tables of citations and addendums.
9. Reference to Excerpts of Record (Appendix). The briefs must make specific references to the relevant portions of the record.
10. Appendix to Brief (Excerpts of the Record). Appellant must serve and file with appellants brief excerpts of the record as an Appendix in all BAP appeals of the following:
(a) complaint and answer or other equivalent pleadings;
(b) any pretrial order;
(c) judgment, order, or decree from which
(d) any other orders relevant to the appeal;
(e) the opinion, findings of fact, or conclusions of law filed or delivered orally by the court and citations of the opinion if published;
(f) any motion or response on which the court rendered decision;
(g) the notice of appeal;
(h) the relevant entries of the bankruptcy
(i) the transcript or pertinent portion thereof.
T. Service
Copies of all papers filed by any party (and not required by the rules to be served by the clerk of the BAP) shall, at or before the time of filing, be served by the party or a person acting for the party on all other parties to the appeal. Service on a party represented by counsel shall be made on counsel.<
U. Motions for Extension of Time
1. Procedure.
If a party seeks to file a brief but is unable to do so within the time prescribed by the BAPs scheduling order, the party may move for an extension of time for filing a brief.
2. Contents.
The motion shall be supported by a declaration stating the time when the brief is due, how many extensions of time, if any, have been granted, when the brief was first due, and whether any previous requests have been denied or denied in part. The motion shall also state the reasons why such an extension is necessary and the amount of time requested. Finally, the motion shall state the position of the opponent(s) in respect to the motion or state why the moving party has been unable to obtain a statement of such position(s).
V. Issues on Appeal
1. Generally, appellate courts do not consider arguments that are not properly raise[d] in the trial courts.
2. The Court of Appeals recognizes three narrow, discretionary exceptions to the general rule: (1) to prevent a miscarriage of justice or to preserve the integrity of the judicial process; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one.
3. In addition, the BAP must consider matters affecting its jurisdiction sua sponte even if not briefed by the parties.
4. The law requires appellant to file a statement of issues to be decided. The Panel may nevertheless consider an issue not so listed if the issue is purely one of law and there is no prejudice.
5. An appellate court generally will not consider an issue raised by an appellant for the first time in a reply brief.
W. ORAL ARGUMENT
1. Oral argument is scheduled in nearly all fully-briefed cases. The BAP clerk typically sets oral argument to occur 30-45 days after the briefs are filed.
2. Submission without Argument. Counsel usually has the option of electing to submit their case on their briefs without attending oral argument. In that event, unless the Panel dispenses with oral argument entirely, opposing counsel may appear and argue without opposition. Counsel choosing not to present oral argument must notify the clerk and opposing counsel of that election as soon as practicable.
X. SANCTIONS
Sanctions for frivolous appeals, in the form of just damages and single or double costs are awarded only upon a separately-filed motion or after notice from the BAP and reasonable opportunity to respond.The panel usually ignores requests for sanctions made in the briefs.
Y. DECISIONS
The judges confer immediately after the hearing to come to a tentative decision. The judge assigned to write the disposition then circulates a draft for formal votes. Once all comments have been considered by the lead judge, and any concurrences or dissents have been prepared, the lead judge transmits the disposition to the BAP clerk, who files it on behalf of the Panel and serves the parties. Most BAP appeals are decided within eight months of filing of the notice of appeal.
Dos and Don’ts for an Effective Appeal
Know what relief you want (and why).
Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.
Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, the appellate court is also concerned with the overall impact of its ruling on the general body of bankruptcy law.
Clarify the standard of review and frame arguments around that standard.
Simplify the story. Write with punch – short, crisp, essential facts.
Organize your brief with short headings, rather than long sentence headings.
Paraphrase quotes whenever possible. Long block quotes are soporific.
Focus your appellant’s argument on areas where the judge’s ruling is most susceptible to being reversed.
Provide an adequate record, and know what is in it. Follow the rules with respect to organizing, paginating and tabbing the record (appendix), so that the judges and law clerks can find pertinent excerpts quickly.
Be honest and direct in answering the Panel member’s questions. Acknowledge the weaknesses of your case. Use policy arguments sparingly, if at all.
Listen to the questions being asked of your opponent and be ready to fill in the blanks on matters of concern to the Panel.
DON’T:
Use many words when a few will do.
Make convoluted arguments.
Make grammatical or typographical errors.
Write in a disorganized and unintelligible manner.
Attack the trial judge or opposing counsel.
Use block quotes extensively.
Plagiarize/fail to attribute quoted sources
Overuse policy arguments.
Avoid direct answers to the judges’ questions.
Deflect the question and distract the judge if it is not the question you wanted to hear.
Cut off the judge’s question in mid-sentence.
Be ignorant of the record or mischaracterize the record.
Blame your unfamiliarity with the record on the fact that you did not handle the case at the trial level. (The SODDI excuse – some other dude did it).
WHEN TO FILE A PETITION FOR MANDAMUS
MANDAMUS GROUNDS
A. Abuse of Discretion
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. The court determines whether the trial court’s error is so arbitrary, unreasonable, or based on so gross and prejudicial an error of law as to establish abuse of discretion. A mere error in judgment is not an abuse of discretion.
When the trial court’s decision rests on the resolution of factual issues or matters committed to the court’s discretion, the relator must establish that the trial court could reasonably have reached only one decision. If a trial court has held an evidentiary hearing and has resolved disputed issues of fact, an appellate court may not substitute its judgment on the facts for the judgment of the trial court 3. Error of law As to questions of law, however, the trial court is given little deference in matters involving the determination of legal principles. If a trial court does not analyze or apply the law correctly, it commits an abuse of discretion.
B. No Adequate Remedy at Law
A writ of mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Appellate courts may not issue mandamus relief when the law provides another plain, adequate, and complete remedy. The requirement that a person seeking mandamus relief establish the lack of an adequate appellate remedy is a fundamental tenet of mandamus relief. An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. Because mandamus is an extraordinary remedy, appellate courts may not issue mandamus to supervise or correct a trial court’s incidental rulings when there is an adequate remedy at law, such as a normal appeal.
C. Mandamus Jurisdiction
All state appellate courts derive their jurisdiction from their state constitution and statutes. Each state’s highest court may issue all writs of mandamus against a judge of a lower trial or appellate court. It will not issue mandamus relief against another person. Each state’s lower appellate courts may issue writs of mandamus against an appellate court or trial court judge. Other than the persons named, the highest court may not mandamus other persons except to enforce its jurisdiction.
D.Venue
Generally, a person seeking a writ of mandamus must first file in the appellate court rather than the trial court. Some mandamus proceedings, of course, can only be filed in the highest court, e.g., a petition against a state executive officer. When the several courts have concurrent jurisdiction, there must generally be a compelling reason for first filing in the state’s highest court.
E. When to File
An aggrieved party should file a writ of mandamus as soon as possible after an adverse ruling. Because Mandamus is based on equitable principles, lack of diligence can be fatal.
F. The Mandamus Petition
1. The Style and Parties
The petition must be captioned In re [name of relator] the party seeking the relief is the relator. The person against whom relief is sought is the respondent. A person whose interest would be directly affected by the relief sought is a real party in interest.
2. Form and Contents of Petition
All factual statements in the petition must be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated. The petition must, under appropriate headings and in the following order, contain:
a. Identity of Parties and Counsel
List all pro se parties and the names and addresses of all counsel. Listing phone numbers, fax numbers, and e-mail addresses of counsel is a great help to the court, especially if the proceeding is an emergency. Counsel for the real party in interest customarily represents the respondent judge.
b. Table of Contents
The petition must contain a table of contents with references to the pages of the petition. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.
c. Index of Authorities
The petition must include an index of authorities arranged alphabetically and indicating the pages of the petition where the authorities are cited.
d. Statement of the Case
The statement of the case should not exceed one page and should not discuss the facts. The statement must contain the following information: (1) a concise description of the nature of the underlying proceeding; (2) information about the respondent, the name of the judge, the court in which the judge is sitting, and the county in which the court is located; and (3) a concise description of the respondent’s action from which the relator seeks relief.
Example: The following format is an especially succinct method for statement of the case: Underlying Proceeding Discovery dispute in a personal injury and wrongful death case filed by relator, Polly Plaintiff, against the real party in interest, Mean Old Corporation. Respondent The Honorable Jane Jones, Judge.
e. Statement of Jurisdiction
State, without argument, the basis of the court’s jurisdiction.
f. Issues Presented
The petition must state concisely all issues or points presented for relief. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.
EXAMPLE: Did respondent abuse his discretion by reinstating a case more than 30 days after a judgment of dismissal based on an unverified motion to reinstate?
g. Statement of Facts
The petition must state concisely and without argument the facts pertinent to the issues or points presented. The statement must be supported by references to the appendix or the record. Remember, the facts should not be disputed.
h. Argument
The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record. Demonstrate why mandamus relief is proper. Show that respondent abused its discretion and there is no adequate remedy at law. If the complaint is about the failure to act, show that there is a legal duty to perform a non-discretionary act, there was a demand for performance, and a refusal to act.
i. Prayer
The petition must contain a short conclusion that clearly states the nature of the relief sought.
j. Appendix
The appendix must contain a certified or sworn copy of any order upon which relief is requested, or any other document showing the matter under complaint. The appendix must also contain, unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute, constitutional provision or other law (excluding case law) on which the argument is based. The appendix may also contain copies or excerpts of relevant court opinion, documents on which the suit was based, pleadings and similar materials. The appendix should not contain any evidence that is not necessary for a decision. The judges may carry the petition with them. Try not to make the appendix too large. In most cases, the petition and appendix can be bound together with appropriate tabs for the documents in the appendix.
K.The Record
Relator must file with the petition a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony from any underlying proceeding, including exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter. In the absence of the transcript of an evidentiary hearing, the appellate court will assume that the evidence supported the ruling of the trial court.
l. Response
A response is not mandatory. The court may not grant relief, other than temporary relief, unless a response has been requested or received by the court. The response need not contain the statement of the case, the statement of the issues presented, or a statement of the facts, unless the responding party is dissatisfied with that portion of the petition. If the petition does not properly state a basis for jurisdiction, concisely note the lack of jurisdiction. The argument is limited to the issues or points presented in the petition, although the responding party may rephrase the issues or points and the appendix need not contain any item included in the relator’s appendix.
m. Relator’s Reply to Response
The relator may file a reply to a matter in the response. The court, however, may consider and decide the case before a reply brief is filed.
G. ACTION ON PETITION
The court may deny the petition with or without a response. The court, however, will not grant mandamus relief unless a response has been filed or request. The court may request full briefing. The court may grant relief without oral argument. When denying relief, the court is not required to issue an opinion. When granting relief, however, the court must issue an opinion.
H. MOTION FOR REHEARING
Any party may file a motion for rehearing within a short period of time after the final order of the appellate court. No response need be filed unless the court requests one. The court will not grant a motion for rehearing unless a response has been requested or filed.
I. TEMPORARY RELIEF
The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition. The relator must certify to the court that if has notified or made a diligent effort to notify all parties by expedited means (such as phone or fax) that a motion for temporary relief has been or will be filed. A bond may be required to protect the parties affected by the temporary relief. The court may grant temporary relief on its own motion. Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided. Any party may move to reconsider the grant of temporary relief.
J. SANCTIONS
On motion of any party or on its own initiative, the court may – after notice and a reasonable opportunity to respond – impose sanctions on a party or attorney who is not acting in good faith as indicated by any of the following: (a) filing a petition that is clearly groundless; (b) bringing the petition only for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.
K. OPTIONS FOR THE LOSER
Although there is no right to appeal a mandamus ruling by an appellate court, most state laws allow further review. An appellate court abuses its discretion when it acts in excess of its writ power by granting mandamus relief when the trial court has not committed an abuse of discretion. If the appellate court grants mandamus, the respondent may then challenge its ruling by filing a petition for writ of mandamus against the appellate court of appeals in the state’s highest court. If the appellate court declines to issue a mandamus, the court has not abused its discretion. The relator may then file a petition for writ of mandamus against the original respondent in the state’s highest court.
L. CONCLUSION
Before thinking mandamus, consider the expenses and the impact of the filing on future proceedings before the respondent. If you then decide to take the risk against the difficult odds, remember that success with a petition for mandamus requires strict adherence to the facts and to the procedural requirements.
THE WRIT OF CERTIORARI
A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. All states as well as the U.S. Supreme Court review a petition for a writ of certiorari and choose whether the case will be heard. Thus, simply submitting a petition for a writ of certiorari does not guarantee that the court will hear it.
OVERVIEW
The U.S. Supreme Court and each state’s highest court give full consideration to but a small fraction of the cases it has authority to review. With many important categories of cases, the party seeking review does so by “petitioning” the Court to issue a “writ of certiorari”. If the Court decides to review one or more issues in such a case it grants “certiorari” (often abbreviated as “cert.”). If the Court decides not to review the case it denies “cert.”
While a decision to deny cert. lets the lower court’s ruling stand, it does not constitute a decision by the court on any of the legal issues raised by the case. Rule 10 of the Supreme Court Rules lists some of the considerations that may lead the Court to grant certiorari. But the decision to grant or deny cert. is discretionary. Under long-standing internal Court practice if four justices favor granting a petition for cert. it will be granted.
Originally, the writ of certiorari was a proceeding through which a superior court required a lower court to submit the full record of a case for review. Under the current rules and practice of the Supreme Court, however, key elements of the proceedings below are submitted along with a petition for certiorari. And in some states the old terminology has been replaced; for example, relief formerly obtained by the writs of prohibition, mandamus and certiorari is now obtained through a “special action.”The Court’s orders granting or denying cert. are issued as simple statements of actions taken, without explanation.