Motions for Discretionary Review & Petitions for Review in Washington: Tricks of the Trade

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1 Motions for Discretionary Review & Petitions for Review in Washington: Tricks of the Trade Sidney Tribe Talmadge/Fitzpatrick Introduction Motions for discretionary review and petitions for review differ in many respects. One is an interlocutory process designed to allow higher courts to intervene in trial proceedings, the other is often your last chance to obtain final review by any court. One is meant to remedy specific legal mistakes, the other to address the broad policy implications of a particular decision. One is decided by a Court of Appeals commissioner, the other is decided by a majority of Supreme Court justices. However, there is one way in which these two processes are similar: they both occur on a meta-level of the practice of law. On this level, it s not about why you should win or lose the merits of your case, but why the court you are addressing should exercise its almost limitless discretion to either accept or deny review. If you are writing one of these motions, you are trying to grab the court s attention about why it is important to hear this issue or this case right now. Stop the presses! This can t wait! If you are defending against these motions, you are telling the court, Nothing to see here, move along, this is a totally inconsequential matter. The most common error lawyers commit in the practice of bringing MDRs and PFRs is to focus on the underlying merits of the case, rather than the court rules and judicial principles governing the procedure they are using. Here are some tips that can help you to hone your practice with these motions Sidney Tribe Talmadge/Fitzpatrick

2 Rules of the Road MDRs MDRs are governed by RAP 2.3(b), which reads: Except as provided in section (d), 1 discretionary review may be accepted only in the following circumstances: (1) The superior court has committed an obvious error which would render further proceedings useless; (2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; (3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or (4) The superior court has certified, or all the parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation. The central message to take from the language of this rule is that the circumstances warranting interlocutory review must be highly unusual. Trial judges make hundreds of decisions both before and during trials which may be difficult, complex, and potentially erroneous. The vast majority of these can be resolved in the normal course of a post-judgment appeal. However, in rare instances the trial court will commit an error so obvious, so egregious, or so damaging to a party that the appellate court must intervene immediately. The first three options for interlocutory review under RAP 2.3(b) cover three slightly different (but sometimes overlapping) situations. 1 Section D covers the grounds for seeking review of the decision of a court of limited jurisdiction, which is not covered by these materials Sidney Tribe Talmadge/Fitzpatrick

3 An example of an appropriate case for appellate review under RAP 2.3(b)(1) is a tort complaint relating to an automobile accident that occurred 10 years before. The statute of limitations would have long since expired, and if the trial court refused to dismiss, the error would be obvious and render the trial useless. RAP 2.3(b)(2) is intended to address errors that are irremediable by appeal after trial. An example of this would be an order compelling disclosure of attorneyclient privileged materials. 2 If the order is enforced, and the attorney-client secrets are disclosed, a post-trial appeal cannot remedy the harm. RAP 2.3(b)(3) is purposefully vague, and addresses the fact that judges are human and sometimes wander away from reason. For example, an order prohibiting a party s attorney from raising any objections at trial would qualify. The fourth option for an MDR under RAP 2.3(b) is tricky, but can be used to great advantage. If a trial judge agrees that a particular decision is pivotal to resolving the case quickly, and is a highly debatable question of law, that judge might certify the issue for interlocutory review. Upon certification, the Court of Appeals will likely take review, although it still has the final say in the matter. 3 However, convincing a trial judge that he or she might have gotten it wrong is no small matter. To do so, file a motion to certify citing RAP 2.3(b)(d). Of course, this rule also allows for certification by stipulation of all parties. This is usually even more difficult than persuading the judge. MDR are initiated by filing a Notice of Discretionary Review within 30 days of entry of the challenged decision. 15 days later, the motion itself is due. If your MDR is denied by the commissioner, you may move to modify that ruling, and the motion will be considered by a panel of judges. If it is still denied, you may seek review of that denial by the Supreme Court. However, the circumstances under 2 Many practitioners make the mistake of assuming that RAP 2.3(b)(1) and (2) are the same rule, simply with varying degrees of severity. Note that Rule (1) only permits review when an error is obvious and, when reversed, will essentially conclude the case. Rule (2) leaves more room for debate on the question of the error, but the consequences of error must be more serious that simply forcing the parties to have a trial: some irremediable impact that alters the status quo in some way other than having to move forward with the case. 3 I have seen situations in which the trial judge was looking to certify an issue simply to get the case off of his or her docket. I have also seen situations in which a judge believed that because the issue was controversial and would eventually be decided by the higher courts, the judge should just sign a certification motion. Again, for RAP 2.3(b)(4) to apply, a ruling on the issue must materially advance the ultimate termination of the litigation. To defend against a motion to certify Sidney Tribe Talmadge/Fitzpatrick

4 which the Supreme Court will accept interlocutory review after it has twice been denied at the lower court level are exceedingly rare. Filing an MDR does not automatically stay proceedings below. You must move the trial court for a stay. If it is denied, you may seek a stay at the Court of Appeals under RAP 8.1 or 8.3. PFRs PFRs are governed by RAP 13.4(b), which reads: A petition for review will be accepted by the Supreme Court only: (1) If the decision of the Court of Appeals is in conflict with a decision of the Supreme Court; or (2) If the decision of the Court of Appeals is in conflict with another decision of the Court of Appeals; or (3) If a significant question of law under the Constitution of the State of Washington or of the United States is involved; or (4) If the petition involves an issue of substantial public interest that should be determined by the Supreme Court. Despite the only in the opening phrase, the Court is of course free to accept or reject any petition it likes. Unlike the rules for MDRs, the PFR rules are fairly self-explanatory. If the lower court ruling creates a conflict in law, raises a significant constitutional question, or addresses an issue of substantial public interest that affects persons beyond the parties in the case, review is merited. One unwritten rule regarding PFRs is that they are almost always rejected if the challenged decision is unpublished. If the opinion for which you seek review is unpublished, move to publish within 20 days. Filing a motion for reconsideration does not toll the filing deadline for a motion to publish. Unlike MDRs, there is no notice to be filed before you file a PFR. You simply file the petition at the Court of Appeals (not at the Supreme Court) within 30 days of filing of the decision, or within 30 days of the filing of an order on reconsideration or publication, whichever occurs last Sidney Tribe Talmadge/Fitzpatrick

5 Practice Tips The biggest mistake attorneys make in bringing these motions is to spend most or all of their time arguing the merits of the underlying case, or arguing about why the trial court s ruling is erroneous. They think if they can persuade the court of the rightness of their cause, the court will not be able to resist granting review. This is a mistake because the court knows it can always decide the issue later. In the case of an MDR, the court knows that regardless of its decision, the parties will have the opportunity for appeal as of right after the trial. In the case of a PFR, the court knows that even if it declines to address the issue in this particular case, chances are good that important issues will arise in other cases. So the fact that the trial court got it wrong, or that the underlying issue is important, is not the definitive factor. The question you should be answering for the court when filing MDRs and PFRs is, Why now? Why must the court address this issue right now, in the context of this case, and not at some future time? What will be the result if the court declines to accept review at this very moment? In the case of an MDR, will there clearly be a useless trial? Will the parties have to engage in expensive and highly burdensome discovery over an irrelevant issue? Are there consequences that will be irremediable if the order is enforced? In the case of a PFR, will there be lower court confusion, or negative consequences to other persons if the appellate court decision is allowed to stand? If two cases clearly conflict, how will trial courts do their work? If there is a public interest at stake, how will the lack of review impact the lives of citizens? Also, review prior Supreme Court authority for policy positions that conflict with the reasoning of the Court of Appeals. Don t just look at precedent in the specific area of law you are discussing, because policy arguments are easily tranferrable. If you are defending against one of these motions, the argument is reversed. The goal is to convince the court that this is just a routine, unremarkable ruling. The other side is forced to take a chicken little approach, the response should be to soothe the court s concerns. In defending MDRs, more emphasis should be placed on the obvious or probable error standard than when bringing a motion, because the burden of showing that level of error is difficult to meet. Also, attack commonly used but weak arguments, such as the high cost of holding a trial (which is irrelevant) or the need for clarity in the law (which is important in a PFR but not a strong basis for interlocutory review) Sidney Tribe Talmadge/Fitzpatrick

6 In defending PFRs, the task is to point out how the appellate court actually followed existing precedent, and made no new law. If the decision is unpublished, this job is easy. If the opinion is published, the Court of Appeals likely believed that it was making some new law, so it is important to emphasize that the Court made the right policy choice based on existing Supreme Court precedent. One helpful method of litigating MDRs and PFRs is to focus on every element of the applicable rule. This will keep the focus on what the target audience wants to know: why should review be granted now, in these circumstances. Each argument section should be framed using the language of the rule. For example, RAP 2.3(b)(1) requires that the trial court s error be (1) obvious, and (2) render further proceedings useless. Your first section should explain why the trial court s ruling is obvious error and separately explain why it renders further proceedings useless. RAP 13.4(b)(1) requires you to demonstrate a conflict with another decision of the Court of Appeals. You start off by stating that the present decision conflicts with other decisions and then cite to those decisions. MDRs and PFRs should not be fact heavy. If you have drafted the motion and your fact section is more than 4 pages long, you have a problem. Your audience is not going to decide your petition based on fact disputes. In the case of MDRs, the facts have yet to be resolved, and it s not the appellate court s job to resolve them. In the case of PFRs, the court will likely rely heavily on the facts as recited by the Court of Appeals. Instead, MDRs and PFRs should focus on concisely stated legal issues. The rule governing PFRs require a separate section entitled Issues Presented for Review. Although MDRs are governed by RAP Title 17 which does not require an issue section, your MDR absolutely should have one. In either case, the issues should be focused, tailored, and edited. This is not the time for throwing in every potential legal argument. You are trying to focus the court s attention on one or two vital issues that must be resolved. Samples of a successful PFR and a successful MDR are included in the following pages Sidney Tribe Talmadge/Fitzpatrick