Recently, in Walker v. Second Judicial District Court ex rel. County of Washoe, Nev. Adv. Op. 80, 476 P.3d 1194 (Dec. 10, 2020), the Nevada Supreme Court provided clarification regarding the requirements which must be met to seek extraordinary writ relief regarding an issue for which the district court has been entrusted to exercise its discretion. Specifically, writ relief is not appropriate to correct every error or abuse of discretion alleged to have been committed by the district court. At a minimum, a party must be able to demonstrate a manifest abuse of discretion by the lower court, as well as an impending, irreparable harm that will occur if the party must await entry of a final judgment before seeking appellate review.
While most issues are appropriate for review on appeal at the end of a case, after entry of a final judgment, there are some issues, like the invocation of a privilege, which may warrant immediate review by the Nevada Supreme Court. In such circumstances, a party can file a petition for extraordinary writ relief to request that the Supreme Court exercise its discretion to review the issue prior to entry of a final judgment in the case.
The most common writ relief sought in civil cases is a writ of mandamus by which the Supreme Court can order any government official or office to perform one or more of its legal duties. In most instances, this means that the Supreme Court can order a district court judge to perform an act which it is legally obligated to do—i.e., issue an order protecting a party’s attorney-client privileged documents from disclosure during discovery, dismiss an action where a claim cannot be stated by the plaintiff as a matter of law, or sanction a party for a failure to comply with a court order.
To obtain issuance of a writ of mandamus or any other extraordinary writ, like a writ of prohibition (which can be used to prohibit a district court judge from taking some action), a party must be able to demonstrate the following:
First, the petitioner must show that the district court manifestly abused its discretion or acted arbitrarily or capriciously. Merely contending that the district court committed an error is not sufficient. An appeal is more than an adequate remedy for most errors that may have been committed in the case. Rather, writ relief is only appropriate when the lower court: (1) acts contrary to the law; (2) misapplies the law; (3) takes an action that is manifestly unreasonable; or (4) exercises partiality, prejudice, bias, or ill will. In sum, a petitioner must show that the district court manifestly abused its discretion by taking an action or making a decision “in the absence of a clearly established factual and legal basis to do so.” Id. at 1197.
Second, the petitioner must show that no other plain, speedy, or adequate legal remedy is available to correct the alleged error. Essentially, a party must be able to demonstrate that some impending, irreparable harm will occur if the Supreme Court does not remedy the district court’s error before entry of final judgment. It is not sufficient merely to claim that extraordinary writ relief would be easier or more expeditious than awaiting the right to appeal. Id. at 1198.
About Sarah Harmon:
Sarah E. Harmon is a partner at Bailey Kennedy and has over 18 years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes. Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief. Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.
If you have any questions about appeals or civil/business litigation, please call or email Sarah Harmon at 702-562-8820 or SHarmon@BaileyKennedy.com. Additional resources can also be found at www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.
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