APPEALING INTERLOCUTORY ORDERS - The Missouri Bar

7/16/2015

Missouri Bar Family Law Conference 2015

APPEALING
INTERLOCUTORY ORDERS

JOSEPH A. LAMBSON

Coulter Lambson LLC
222 S. Meramec Ave, Suite 300
Clayton, MO 63105
(314) 488-2555
[email protected]

WHAT IS REQUIRED FOR AN APPEAL?

• Generally, a “final judgment” is required to appeal

• What is a final judgment?

• A decision is final if it ends litigation on the merits and leaves
nothing for the trial court to do except execute the
judgment

• “A judgment is not usually final unless it disposes of all issues
as to all parties.” Transit Cas. Co. ex rel. Pulitzer Publishing
Co. v. Transit Cas. Co.,43 S.W.3d 293, 298-99 (Mo. banc
2001).

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The “One Final Judgment Rule”

• A core principle of appellate procedure recognized
in all jurisdictions

• General Rule a final judgment, order, decree, or
decision must have been rendered in order for a
case to be reviewable

• Under this rule, appellate courts are barred from
reviewing interlocutory rulings by means of appeal
until there is a final resolution of the case

• The purpose of this rule is to avoid the cost and confusion of
long drawn out cases due to multiple appeals

What is an interlocutory order?

• An interlocutory order is an order given by the judge in
the interim. It is a provisional or temporary order not
constituting a resolution of the whole controversy.

• “The converse of a final judgment is an interlocutory
order, which is an order that is not final and decides
some point or matter between the commencement and
the end of a suit but does not resolve the entire
controversy.” Buemi v. Kerckhoff, 359 S.W.3d 16 (Mo.
banc 2011).

• “The very term ‘interlocutory judgment’ is a misnomer,
because a judgment really means a final determination
of the rights of the parties” Barlow v. Scott, 85 S.W.2d 504
(Mo. banc 1935)

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Is the Decision “Final”?

• Things to look for to determine if a judgment is final
(examples from MO case law):

• The trial court has fully distributed all marital assets and
property including debts

• Permanent custody arrangements have been determined, if
applicable

• A completed parenting plan, including all required statutory
elements, is included or specifically referenced, if applicable

• Child support has been determined, if applicable
• Maintenance issues decided, if applicable
• If dissolution, marriage found to be irretrievably broken and

dissolved
• If there are third parties, decisions have been rendered as to

them as well

Final Decision vs. Interlocutory Orders

• In MO Law, there are a few statutory allowances for
appeals of interlocutory orders (e.g., for prosecutors,
juvenile officers, orders of partition of real property).
Almost none of them are applicable for family law
practitioners.

• Unless there’s a statutory allowance for interlocutory
appeal, remember, the “one final judgment rule” bars
appellate review of interlocutory rulings until final
resolution of the case

• In general, where no issue is left for consideration except the
fact of enforcement and compliance or noncompliance, the
decree is final

• However, where anything further in the nature of judicial action
is required by the court to determine that rights of the parties,
the decree is interlocutory

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The Trouble with Interlocutory Orders

• Interlocutory orders are generally not appealable until
completion of the case.

• An interlocutory appeal is one that occurs before the
trial court’s final ruling on the entire case

• These types of appeals are rare because of the non-final
nature of the judgment

• However, some interlocutory orders have effects that
cannot be remedied on appeal from the final judgment

• Example: if access to privileged information is granted in
pretrial discovery, any error cannot be remedied on appeal
from the final judgment

• Therefore, MO recognizes limited instances in which
certain “interlocutory” orders are directly appealable or
reviewable as a matter of discretion by writ

Solution: The Writ

Writs of Prohibition and
Writs of Mandamus are
possible solutions to seek

appellate review of
problematic mid-case, or
other “unripe” appellate

issues.

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“Righting Wrongs with Writs”

• Writs have the potential to provide extraordinary
relief in some cases where relief would not be
otherwise available

• Every family law practitioner should be familiar with
writs

• Article V, Section 4 of the Missouri Constitution
authorizes the Missouri Courts of Appeals to grant
extraordinary original remedial writs.

Appeals ≠ Writs

A writ is not the same as an appeal

• “The issuance of a writ of prohibition is not an appellate process. A
proceeding in prohibition is distinct and independent of the original
action.” State ex rel. T. J. H. v. Bills, 504 S.W.2d 76, 78 (Mo. 1974).

• Extraordinary writ proceedings are not limited by the jurisdictional
limitations set forth in Article V, § 3, of the Missouri Constitution for
direct appeals. Accordingly, the Court of Appeals may entertain and
determine issues in a writ proceeding that they could not determine in
a direct appeal. (Meaning the Courts of Appeal have coextensive
jurisdiction with the Supreme Court on matters that only the Supreme
Court could hear on a direct appeal, such as constitutional issues).
State ex rel. Dir. of Revenue, State of Mo. v. Conklin, 997 S.W.2d 121
(Mo. App. 1999)

• The filing process of a writ proceeding is very different from an appeal

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Appeals vs. Writs

Appeals Writs

•Appeals are an exercise of the •Issuing an extraordinary writ is an
reviewing court’s appellate jurisdiction exercise of a court’s original
and are heard as a matter of right. jurisdiction- of its authority to sit in
equity to grant extraordinary relief
•Essential criteria of appellate
jurisdiction: •Some courts refer to this as their
•1) it reviews and corrects the “supervisory” jurisdiction
proceedings in a cause already
instituted in a lower court, and •Writ petitions ask the appellate court
•2) it does not create that cause to use its discretion to issue an order
directing a lower court to do
•Filing a timely notice of appeal form something, or to refrain from doing
an appealable order vests jurisdiction something
in the superior tribunal.
•Unlike an appeal, which is heard as a
matter of right, relief by means of writ
is deemed extraordinary and
completely discretionary

Some Interim Issues That Are Appealable
(and applicable to family law)

• PDL involving child support, maintenance, and attorneys fees
• Judgment dissolving the status of the marriage that is

bifurcated from the issues of property, maintenance, child
custody/support.
• Order dissolving a temporary restraining order.
• Denial of a motion to intervene (if intervention is a matter of
right).
• QDRO entered after final judgment, if denominated as
“judgment”
• Habeas corpus proceeding involving custody of minor child
where there is at the time of the proceeding no prior order
determining custody
• Post-final judgment, post notice of appeal, order of attorney’s
fees on appeal.

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IS IT WORTH IT TO APPEAL/WRIT?

Appeal Writ

• Can it wait until the end of the case if it’s not • Shorter dispositional time than an appeal, but
immediately appealable or will waiting prejudice unless it is dismissed immediately or expedited as an
your case? emergency ,it can still take several months to
resolve.
• An appeal takes a very long time to reach
resolution in the appellate courts—plan on it taking • Since the writ is technically directed at the trial
at least a year, often more, from the time of the judge, you can get the ire of the trial judge before
notice of appeal before the case is resolved he rules on the final judgment in your case (some
judges take it very personally)
• The cost of an appeal is extremely expensive
• A writ will, not always, but usually stay the
• Takes large amounts of time to prepare, and takes underlying proceedings until resolved. This could be
you away from other case preparation a major problem in cases that need quick
resolutions.
• Risk the judge will award the other party attorneys
fees on appeal to defend your appeal • Will still end up costing several thousand dollars to
prepare
• Is it more efficient to try to focus your efforts on
seeking a speedier trial to minimize the time • It will take much more time to prepare than you
interlocutory orders are in effect, rather than trying really expect (especially if you are unfamiliar with
to appeal them? the style and rules of writs) and can take away from
the time you spend preparing the client’s case-in-
• An appeal does not stay the underlying chief
proceedings, and any orders are enforceable while
on appeal, unless a motion to stay was granted or • Unlike an appeal, usually not necessary to have a
a supersedes bond was posted. supersedes bond to seek relief of money judgments

Not a Party? Not a Problem

• Generally, someone not a “party” to the case cannot
appeal

• An aggrieved non-party may seek party status by a motion to
intervene with the trial court
• If the motion is granted the party may file a notice of appeal as
an aggrieved party
• If the motion is denied the party has standing to seek writ review

• It is not required that person seek intervention to pursue a
remedy by writ.

• Unlike appeals, seeking writ relief does not require the
appellant to be a party to the lower court proceeding

• This may arise when orders are issued against GALs, attorneys,
or third-parties interested in the action, where an order has
been issued against them

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Types of Writs

There are 2 types of writs that are primarily relevant to interlocutory
orders in family law:

Writs of Prohibition Writs of Mandamus

•Governed by Rules 84.22-84.26 of the •Governed by Rules 84.22-84.26 of the
Missouri Rules of Appellate Procedure Missouri Rules of Appellate Procedure
and Rule 97.01 et seq of the Missouri and Rule 94.01 et seq of the Missouri
Rules of Civil Procedure Rules of Civil Procedure.

•Used when a party is asking a higher •A command from a superior tribunal to
court to prohibit a lower court from perform a particular act, to which the
taking a certain action or threatened party seeking relief has a clear right
judicial act that is not in, or in excess of,
the lower court’s power or jurisdiction •When the act involves judicial discretion,
mandamus is only appropriate where
•Meant to restrain the exercise of any judicial power has been usurped or the
authorized power, even though the court has clearly abused its discretion
respondent court has jurisdiction over the
subject matter and the parties

•Also can be used when a trial court is
taking action that a party believes in not
authorized by law

Examples of Writs

Writs of Prohibition Writs of Mandamus

Examples of when writs of prohibition might be Examples of circumstances that may compel a
used to prevent a judge from: mandamus action:

•Improper venue Proceeding in an •If a judge is not enforcing the clear
action in the wrong county terms of a statute

•Entering an injunction where no •Enforce request for change of judge
authority to do so
•Seeking a higher court order to
•Compelling disclosure of documents change venue if a motion for a
in the discovery process you seek to change of venue was appropriately
restrict requested

•Proceeding where statute of •Seeking a declaration that the trial
limitations prohibits action court abused its discretion

•Proceeding where res judicata •Seeking an order to compel the trial
prohibits action court to vacate an order seeking
privileged documents
•Proceeding where lack of personal
jurisdiction prohibits action •Seeking an order to vacate sustained
objections in discovery

•Enforce request for change of GAL

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Which Writ to Use?

• The distinction between mandamus and prohibition
is “at best blurred, at worst nonexistent”, and the
subject matter to which the two writs apply overlap
to a great extent. For example:

• A writ of mandamus has been held the appropriate means to
require a trial court to comply with the jurisdictional requirement
of the UCCJEA

• A writ of prohibition may be appropriate where a trial court
lacks UCCJEA jurisdiction

• However, even if you incorrectly denominate your petition
a Court may still grant relief because of the discretionary
nature of writ relief

• But to be on the safe side, you can title your petitioner “Writ of
Mandamus, or in the Alternative, Writ of Prohibition”

Writ Relief is Discretionary

• Even if you have the right type of case for a writ, that does not
guarantee that the reviewing Court will grant relief

• In fact, a majority of writs are summarily denied

• Writs should be used sparingly
• Unlike an appeal, which is heard as a matter of right, relief by

writ is deemed extraordinary, and completely discretionary

• Therefore, even if a trial court’s ruling is erroneous, the Appellate Court
is NOT required to grant an immediate writ petition, it may instead
permit review of the issue to await appeal from the final judgment

• Fortunately, if your writ is denied by the court other than in an
opinion on the merits, it is not “res judicata”, so you can still
pursue your claims in the lower court, or later directly appeal
the matter. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. 1980)

• Writ petitions that are denied without the issuance of a preliminary writ are generally
not deemed on the merits. Generally, once a preliminary writ issues, the issues are
deemed to be decided on the merits.

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Parties to a Writ Proceeding

1) Petitioner/ “Relator” the person seeking relief

• Unlike appeals, they do NOT have to be a party to the
original case

2) Respondent lower court, of the judge thereof,
whose action is being challenged

3) Parties in the underlying action can participate in
the writ proceeding, but are not actually a “party
to” the writ

Will be captioned State ex rel. [Name of Person Filing
Writ] v. [Name of Judge]

STANDARD OF REVIEW FOR WRITS

• “The standard of review for writs of mandamus and
prohibition… is abuse of discretion, and an abuse of
discretion occurs where the circuit court fails to
follow applicable statutes.”

State ex rel. City of Jennings v. Riley, 236 S.W.3d 630,
631 (Mo. banc 2007)(citing World Airlines, Inc. v.
David, 158 S.W.3d 232 (Mo. banc 2005)).

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WRITS OF MANDAMUS

WHEN ARE THEY APPROPRIATE?

MANDAMUS

• Common law remedy used to enforce an established
legal right by compelling a person, usually a public
officer or agency, to perform a duty required by law.

• Mandamus cannot be used to adjudicate the existence
of a right or to create new rights.

• Mandamus will not issue unless party has been given an
opportunity to perform and performance was refused.
Cannot correct an anticipated violation of duty.

• A writ of mandamus is proper where a trial court has
“exceeded its jurisdiction or authority,” so the trial court
may be “compel[led] to do that which it is obligated by
law to do and to undo that which the court was by law
prohibited from doing.” State ex rel. Schnuck Markets,
Inc. v. Koehr, 859 S.W.2d 696, 697 (Mo. banc1993)

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MANDAMUS

• Most appropriately used to enforcing purely
ministerial duties.

• However, mandamus will lie for an “abuse of
discretion” where discretion has been exercised
“arbitrarily and capriciously,” or where discretion
has been exercised in “bad faith.”

• For mandamus to be warranted, however, the abuse of
discretion must be clear or result in a manifest injustice.

• Similarly, mandamus will issue where the act or
discretion “exceeds the jurisdiction” of the official.

MANDAMUS

• Generally no relief by mandamus if there is an existing, adequate
remedy, such as an appeal or other type of suit.

• Mandamus has been denied because other remedies are
available where:

• circuit court suit for declaratory judgment ongoing at same time as writ
petition;

• failure to exhaust administrative remedies;
• an administrative or contested case still pending;
• an ability to obtain relief from the court by motion;
• a right of appeal (whether preserved or not);
• where an official has not performed a mandatory duty, but there is still time

in which he can do so.

• However, mandamus will lie if the other remedy is not timely,
adequate, and effective. Peach v. Calvin, 753 S.W.2d 82 (Mo.
App. E.D. 1988)

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WRITS OF PROHIBITION

WHEN ARE THEY APPROPRIATE?

PROHIBITION

• Common law writ used by a higher court to prevent
a lower court or administrative body from taking
certain actions.

• Primary purpose is to keep courts from exceeding
their jurisdiction

• Often couched in terms of lacking what we previously
called subject matter jurisdiction (now statutory bar), or
personal jurisdiction

• Often used when courts threaten action not authorized by
law

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PROHIBITION

Generally, three categories where writ of prohibition may be
appropriate:

• 1. A usurpation of judicial power because the trial court lacks
either personal or subject matter jurisdiction.

• 2. A clear excess of jurisdiction or abuse of discretion such that
the lower court lacks the power to act as contemplated.

• 3. Those very limited situations when an “absolute irreparable
harm may come to a litigant if some spirit of justifiable relief is not
made available to respond to a trial court's order,” or where
there is an important question of law decided erroneously that
would otherwise escape review on appeal and the aggrieved
party may suffer considerable hardship and expense as a
consequence of the erroneous decision.
See State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc
1998); Ferrellgas, L.P. v. Williamson, 24 S.W.3d 171 (Mo. App. W.D.
2000).

PROHIBITION

• Preventative rather than corrective.
• Prevent future act, not undo already performed act.

• Exception: If judicial body is acting in excess of jurisdiction and some
part of duties are yet to be performed. State ex rel. Papin Builders, Inc.
v. Litz, 734 S.W.2d 853 (Mo. App. E.D. 1987).

• Example- A bad order has already been entered, but app. court can
prohibit enforcement

• If writ made permanent, the appellate court can, as part of
relief, compel that acts done in excess of jurisdiction be
undone.

• If court is entitled to exercise discretion, no prohibition will
issue, as long as the act is within the jurisdiction of the court.

• But prohibition may issue if there is abuse of discretion so great as to
constitute acting in excess of jurisdiction. State ex rel. K-Mart Corp. v.
Holliger,986 S.W.2d 165 (Mo. 1999)

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PRACTICAL EXAMPLES OF
FAMILY LAW WRITS

ISSUES YOU MAY WISH TO WRIT

• DISCOVERY ISSUES

• discovery abuses, expert witnesses

• State ex rel. Lichtor v. Clark, 845 S.W.2d 55 (Mo. App. W.D. 1992)

• privileged information

• State ex rel Crowden v. Dandurand, 970 S.W.2d 340 (Mo. banc
1998)

• State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. banc
2006) (prohibition)

• overbroad

• State ex rel. LaBarge v. Clifford, 979 S.W.2d 206 (Mo.App.E.D.
1998) (prohibition)

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ISSUES YOU MAY WISH TO WRIT

• DISCOVERY ISSUES

• Issue that arises very frequently in custody
litigation.

• Medical or psychological experts refuse to turn
over “raw data” in discovery, citing rules of
professional conduct.

• State ex rel. Svejda v. Roldan, 88 S.W.3d 531 (Mo.
App. W.D. 2002) (mandamus)

ISSUES YOU MAY WISH TO WRIT

• REFUSAL TO GRANT CHANGE OF JUDGE OR
DISQUALIFICATION OF JUDGE

• State ex rel. Raack v. Kohn, 720 S.W.2d 941 (Mo. banc 1986)
(prohibition)

• State ex rel. Campbell v. Kohn, 606 S.W.2d 751 (Mo. App.
E.D. 1980) (mandamus)

• State ex rel .Burns v. Goeke, 884 S.W.2d 60 (Mo. App. E.D.
1994) (prohibition)

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ISSUES YOU MAY WISH TO WRIT

• STATUTES OF LIMITATIONS

• State ex rel. Greufe v. Davis, 407 S.W.3d 710 (Mo. App. W.D.
2013) (prohibition)

• Examples where this could arise in family law:

• Non-paternity cases
• Objection to relocation letter
• Enforcing old judgment (ten year rule)
• Altering judgments
• Grandparent custody (90 days)

ISSUES YOU MAY WISH TO WRIT

• TEMPORARY RESTRAINING ORDERS
(INCLUDING THOSE WITHIN RULE 68)

• Zaegel v. Zaegel, 697 S.W.2d 223, 225 (Mo. Ct. App. 1985)
• Pointer v. Washington, 185 S.W.3d 801 (Mo. App. E.D. 2006)
• Hagen v. Bank of Piedmont, 763 S.W.2d 384 (Mo. App. S.D.

1989)

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ISSUES YOU MAY WISH TO WRIT

• IMPROPER VENUE / CHANGE OF VENUE

• State ex. rel Palmer v. Goeke, 8 S.W. 3d 193 (Mo. App. E.D.
1999)

• DISQUALIFICATION OF LAW FIRM/ ATTORNEY

• State ex rel. Thompson v. Dueker, 346 S.W.3d 390 (Mo App E.D.
2011)

• MOTION TO DISMISS (DENIAL)

• Bell Scott, LLC v. Wood, Wood, & Wood Investments, Inc., 169
S.W.3d 552 (Mo. App. E.D. 2005)

• MOTION FOR SUMMARY JUDGMENT (DENIAL)

• Gorman v. Farm Bureau Town & Ctry. Ins., 977 S.W.2d 519 (Mo.
App. W.D. 1998)

ISSUES YOU MAY WISH TO WRIT

• MOTION TO DISMISS (DENIAL)

• Bell Scott, LLC v. Wood, Wood, & Wood Investments, Inc.,
169 S.W.3d 552 (Mo. App. E.D. 2005)

• MOTION FOR SUMMARY JUDGMENT (DENIAL)

• Gorman v. Farm Bureau Town & Ctry. Ins., 977 S.W.2d 519
(Mo. App. W.D. 1998)

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ISSUES YOU MAY WISH TO WRIT

• ORDER OF SANCTIONS

• Buemi v. Kerckhoff, 359 S.W.3d 16 (Mo. banc 2011)

• PERSONAL JURISDICTION

• State ex. rel Phelan v. Davis, 965 S.W.2d 886 (Mo. App.
W.D. 1998) (prohibition)

UNCLEAR WHETHER TO
WRIT OR TO APPEAL

WHAT TO DO WHEN THE CASE LAW IS MURKY

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To Writ or To Appeal?

The first step is to determine whether or not a question is
actually appealable:

Is the interlocutory No Writ Relief Writ of mandamus
order “final” for the Yes Appeal
purposes of appeal? Writ of Prohibition

Statutorily Created
Exceptions

Judicially Created
Exceptions

What If the Case Law If Unclear Whether A
Writ or An Appeal Is Appropriate?

• It can put you into a catch-22.

• Writs are discretionary, so if the time limit for appeal elapses
before you have attempted to take a writ, you may lose
your right to appeal altogether. If you appeal, it will take 1
year+ for the appeal to make its way through the court to
potentially have your appeal dismissed for lack of appellate
jurisdiction (at which point, you will then either have to try to
writ that, or just wait for the rest of the case to become
final).

• Rule 84.22 prohibits the court from entertaining a writ when
adequate relief could be achieved through an appeal, so if
you apply for a writ and an appeal simultaneously, your writ
will usually be summarily denied with a citation to this rule.

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What If the Case Law If Unclear Whether A
Writ or An Appeal Is Appropriate?

Practice Pointer: If there is just too much to risk, we typically file a
writ and an appeal simultaneously anyway.

•If you do this, don’t try to hide it from the court but acknowledge the reason
why filed both, and cite to Kohlbusch v. Eberwein, 642 S.W.2d 683, 684 n.1 (Mo.
App. E.D. 1982), stating that Rule 84.22 “is not absolute and is waived in the
event of great urgency for an early determination or in the event the issue is
one of public importance.”

•Then in your appeal, request that if an appeal is not the proper remedy that
the court treat the appeal as an application for an original writ, and cite to
State v. Larson, 79 S.W.3d 891(Mo. banc 2002) in which the court held that “in
the interest of preventing delay and further duplication of effort”, instead of
merely dismissing the appeal and requiring the litigants to refile a new action
“we have concluded that we will treat this file and the papers that the movant
has filed in this court in connection with his attempted appeal as an original
application to this court for a writ ...”. Other cases have also construed
improper writs as an application for an original appeal. Cite them also. In re
N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007); Precision Investments, L.L.C. v.
Cornerstone Propane, L.P., 220 S.W.3d 301, 303 (Mo. banc 2007).

What If the Case Law If Unclear Whether A
Writ or An Appeal Is Appropriate?

• If you mistakenly choose a writ, when an appeal was the
correct remedy but your time for appeal has elapsed,
you can (as an absolute last resort) try to request
permission to file a late appeal

• Rule 81.07 provides when a party can seek special
permission from the appellate court to file an appeal out
of time. A request must be:

• Within 6 months of when the judgment became final for
purposes of appeal

• Accompanied by an affidavit
• Shown that the delay was not due to the appellant’s

“culpable negligence”

• Don’t count on this as a remedy

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HOW A WRIT DIFFERS FROM AN
APPEAL

• Filed directly with the appellate court of your district, unlike notice of
appeal which is filed with trial court

• Filed online through e-filing is filed like a “new case” so you need all the
party information you would enter when you are entering a new case.

• Requires different kind of service than a notice of appeal
• At filing, you file a writ summary (one page document listing the parties

and short description of the case), a petition for writ (the short version of
your reasons why you should be entitled to a writ), and then “Suggestions
in Support” of your writ (a longer, brief-like explanation of why you should
be entitled to a writ. You will also file “Exhibits” with the court, which are
the underlying documents that support your claims of error. The exhibit
filings are much more informal than filing a legal file in a regular appeal.
• Usually within 24-48 hours the appellate court will either summarily deny
the writ, request that the “relator” file further exhibits, issue a preliminary
writ (which stays the underlying proceedings) and directs the judge to file
suggestions in opposition, or sometimes requests the judge to file
suggestions in opposition without issuing a preliminary writ.
• Suggestions in opposition are typically ordered to be filed within ten days,
unless the court shortens or lengthens the time period

HOW A WRIT DIFFERS FROM AN
APPEAL

• Typical practice is that when a judge is ordered to file Suggestions
in Opposition of a writ, the party on the other side of the
underlying lawsuit files suggestions defending the judgment.
However, sometimes the judge wishes to personally file a
response, and in at least one instance, I have seen a judge hire
her own attorney to file a response to a writ.

• You are not automatically entitled to oral argument. If the case
isn’t dismissed early on, the court can order a fuller briefing and
allow oral arguments.

• There are no “points on appeal”, as in an appellate brief (in initial
filings)

• Writs have a much shorter turn around than appeals, and in true
emergency situations can be quickly expedited.

• Petitions for writs and suggestions in support of a writ, generally
speaking, look very different from your normal appellate briefs, so
if you’ve never prepared one or seen one before, look at a good
sample filing.

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HOW A WRIT DIFFERS FROM AN
APPEAL

• After Suggestions in Opposition have been received, the court
can set the case for a normal briefing schedule (typical of that of
an appeal) or it can dispense with further briefing

• The Eastern District often dispenses with formal briefing under Rule 84.24(j)

• A court usually only issues a formal opinion if it issues a permanent
writ or prohibition or mandamus (and sometimes if it issued a
peremptory writ but denied a permanent writ).

• If a peremptory writ is denied without an opinion issuing, a motion
for reconsideration may not be filed.

• Depending on whether or not the district appellate court issued
an opinion or not, your remedy for seeking further review may be
through a “motion for rehearing” with the district appellate court,
or a “motion to transfer” to the supreme court. Check the specific
rules of appellate procedure. In cases where your writ was
denied without opinion, you would need to file a new petition for
writ directly with the Supreme Court.

Formatting Your Writ

Example from the Eastern District of Missouri

Form 16, Writ Summary

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