THE BLOG
01/03/2017 12:30 pm ET Updated Jan 04, 2018

A Brief Introduction to Common Legal Writs

The "writ" dates from Anglo-Saxon commands issued by the monarch. Today, a writ is a court order commanding an action or an order to refrain from acting. Writs are called "equitable remedies" in that they typically do not involve monetary damages although violating them may result in a fine or imprisonment for contempt of court. This comment provides a brief and incomplete introduction to common writs used in contemporary legal cases. Always consult an experienced attorney in all legal matters.

Introduction

The ability of a particular court to issue a writ is a mixture of constitutional, statutory, and common law authority. At the federal level, the All Writs Act [28 U.S.C. Sec. 1651] authorizes federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law." However, Federal Rule of Civil Procedure 60, among other provisions, abolished some historic writs by name. At the state level, contemporary legislation might address writs associated with newly discovered scientific evidence that may be utilized to overturn a criminal conviction or order a new trial.

One must research a given jurisdiction to determine the authority of a court to issue a particular writ. The individual requesting the writ is frequently termed the "relator" or "petitioner," and the person against whom the writ is sought is called the "respondent." One "petitions" or "applies" for the court to issue the writ. The granting or denial of the petition for a writ is typically discretionary with the court and will only be overturned on appeal if there is a showing of a clear "abuse of discretion." Writs are not easily obtained and typically require a court hearing before being granted, although sometimes they are issued on an emergency basis with a subsequent hearing.

Under the ancient maxim, "there is no wrong without a remedy," one might argue that an extraordinary writ is necessary to prevent injustice in a particular unique situation. However, unless there is specific procedural authority for the court to act, this is somewhat a "Hail Mary pass."

It is important to recognize that the granting of a writ or other court order will not alone protect one from violence. Always consider appropriate personal safety in all situations. In fact, in Town of Castle Rock v. Gonzales (2005), the U.S. Supreme Court held in a 7:2 decision that a town and its police department could not be sued for failing to enforce a restraining order.

The following briefly and incompletely introduces some common writs:

Quo Warrento

This writ questions by what authority a court, official, or perhaps private entity acts. A state's Attorney General might utilize this action in order to more rapidly obtain a hearing on some issue. Typically, there is ongoing action that threatens continuing harm. For example, a public official may be wrongfully refusing to vacate an office and transfer public records after being defeated in an election.

Injunction

An injunction prohibits or requires an action. It is often associated with the terminology "restraining order" that may be temporary or permanent. It has broad application in many situations such as land trespass or family law to name two examples.

Mandamus

This order is directed to a public official or inferior court to perform some act. The requested action must be "ministerial," that is that the relator has a "clear right" to the relief sought and the merits of the situation are "beyond dispute." For example, there may be an immediate need to enforce a child custody order and if not acted upon the child may be removed from the jurisdiction. Mandamus is only granted in exceptional circumstances.

Prohibition

This order is similar to mandamus in operation and the requirements to obtain, but is utilized to reverse or nullify a prior act. The action complained of is typically one that is not authorized by law. To continue the child custody example, perhaps an official or lower court exceeded their authority in granting custody of a child to a non-parent. The parent would seek a writ of prohibition.

Habeas Corpus

This ancient writ is utilized when an individual is restrained, in custody, or otherwise in some manner under coercive control. A hearing is requested to determine the lawfulness of the restraint. For example, it might be alleged in a petition for a writ of habeas corpus that an elderly person is being wrongfully isolated from family and friends.

Certiorari

This writ is typically issued what an appeal is granted. An appellate court orders a lower court to deliver the entire record including documents and transcripts of testimony or other courtroom proceedings for review.

This comment provides a brief and incomplete educational introduction to a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.