Special Writs: The Pitfall Of The Half-Informed Client

by | May 28, 2023

Sometimes I come on to a case where the client has been representing himself (called a pro se appeal), or where the client has had representation but nonetheless has been doing his own research about how the case should be handled. I welcome any client who has taken it upon himself to learn as much as he can about not only the substantive merits of his case, but also the procedural mechanisms by which those meritorious arguments are presented to the right court, at the right time, and in the right form. I invite any client to give me their ideas. Lawyers don’t have a monopoly on the good ones.

That being said, there are times when the client ventures too far from shore and takes action which initially seems to follow a logical course but ultimately is almost laughably off base. I always hope that the good relationship we’ve built, where I start from the premise that the client can add value, allows me in those moments to offer a frank correction. Most of the time, the client responds favorably, but there is one category of misperception which haunts some clients: the special writs.

Do you know the phrase Hocus Pocus? It arose as a criticism of priests reciting liturgies in Latin which began “Hoc est . . . ” It is making fun of the idea that certain words said in a certain order, even if you don’t understand them, will result in magic. So it is with special writs (also called extraordinary writs).

These writs have interesting names, like Mandamus and Certiorari. Some people think that if you can just send one of these to the right court, perhaps written in a heavy gothic font, then the court MUST do what they want. To these true believer clients, these writs are like magic switches which are hidden away but which can cut through a case like a knife.

Unfortunately, fancy Latin names or not, these special writs are just another version of the same basic idea: people writing down ideas, trying to convince other people to listen. There is no magic, I’m afraid. Yes these writs exist (I filed a Petition for Writ of Mandmamus quite recently, in fact), but like all legal work they must include real substance which, like it or not, almost always comes from an attorney if it’s going to be successful.

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