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Writs

A writ is a document or an order from a higher court that directs a lower court or a government official to take some kind of action. In any given trial, a defendant may appeal a case to the next higher appellate body only once, but the defendant may file multiple writs in that same trial. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. Most writs require advanced legal knowledge and involve detailed procedures. Defendants contemplating making an application for a writ are wise to consult counsel.

Federal and State Court Writs

The Federal Rules of Civil Procedure explicitly abolish certain writs altogether and make most forms of relief available through either a lawsuit or motion. Some writs remain available in federal courts, including:

  • writs of certiorari, which permit the review of cases;
  • writs of habeas corpus, which challenge a prisoner's detention;
  • writs of prohibition or injunctions, which compel or forbid actions;
  • and writs of error conam nobis, which set aside a conviction.

State attitudes toward writs vary greatly. Some states have followed the federal courts' lead, while others continue to permit writs that have been eliminated from the procedures of federal courts. Some writs commonly available in state courts include:

  • writs of attachment, permitting the seizure of a person or property;
  • writs of capias, effectively a warrant for arrest;
  • writs of fieri facias, commanding seizure and auction of property to pay a debt;
  • and writs of venire facias, summoning jurors to appear in court.

An Extraordinary Remedy

Courts view writs as extraordinary remedies. This means that courts permit them only when a criminal defendant has no other adequate remedy, such as an appeal. In other words, a defendant may seek a writ to contest an issue that the defendant could not raise in a regular appeal. This action generally applies when the alleged error or mistake is not apparent in the record of the case.

Generally, courts will adjudicate writs more quickly than regular appeals. If a defendant feels wronged by actions of the trial judge, he or she may need to seek a writ to obtain an early review by a higher court. Some of the most common grounds for seeking a writ include:

  • The defense failed to make a timely objection at the time of the alleged error or injustice;
  • A final judgment has not yet been entered in the trial court, but the party seeking the writ requires immediate relief to prevent further injustice or unnecessary expense;
  • Urgency;
  • The defendant has already lodged an unsuccessful appeal. Merely filing a writ that repeats the same unsuccessful grounds or arguments of an appeal is a frivolous writ and an appellate court will dismiss those writs immediately;
  • When an attorney has failed to investigate a possible defense.

Want to Know if You are Eligible for a Writ? Get a Free Case Review

Writs can be difficult to understand and even more difficult to obtain. Don't let that dissuade you from learning more about your specific criminal case, however. Because there are several types of writs in the law, you'll want an experienced criminal defense expert to look at your situation and help you decide your best course of action. Start today with a free case review.

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