Certiorari review of nonfinal orders: trying on a functional certiorari wardrobe, Part II.

• Author: Altenbernd, Chris W.
• Position: Appellate Practice

Last month, we suggested that the "one-size-fits-all" test used to resolve virtually all petitions for writ of common law certiorari challenging nonfinal orders from trial courts is inadequate and unpredictable. (1) We posited that although courts declare that they grant certiorari only when there has been "a departure from the essential requirements of law" resulting in "irreparable injury ... that cannot be corrected on final appeal," (2) in practice, these words are more flowery rhetoric than functional rationale.

Because the case law that seeks to clarify the meaning of this ambiguous test has only resulted in greater confusion, we proposed that the judiciary should announce a policy-grounded functional restatement of the law applicable to such common law certiorari proceedings and create more specific tests tailored to the more common issues addressed by certiorari. We then proposed a functional test, supported by stated policies, (3) for determining whether the exceptional circumstances warranting certiorari review of an erroneous nonfinal order in a pending trial court proceeding exist. In determining whether to grant certiorari, a reviewing court applying our functional approach would consider 1) whether the trial court committed error that can be identified with a high level of confidence from the limited record provided in an original proceeding, and 2) whether the reviewing court can confidently state that the trial court's error is so detrimental to the goal of providing a fair, consistent, accurate, and even-handed dispute resolution process that it should use its resources to interfere in the trial court proceeding to correct the problem. While our more tailored, functional test may not be as poetic as the existing test, we think it will yield more reliable and fair results. In this article, we leave it to you, the reader, to try on our functional approach and decide whether it fits in the context of two (4) controversial types of nonfinal orders: 1) orders denying trial by jury and 2) orders denying discovery. (5)

Orders Denying Trial by Jury

Assume you represent an elderly female plaintiff who developed AIDS as a result of a surgery during which an HIV-positive doctor accidentally cut himself and bled into the surgical opening. After unsuccessful presuit negotiations, she sues the doctor for malpractice and demands a trial by jury. The trial is expected to last two weeks and will require the testimony of three experts who will travel from out of state to testify. At the pretrial conference, the trial judge denies your client's request for jury trial, stating that he is too busy dealing with foreclosure cases to take the time to pick a jury.

In deciding how to remedy this clearly erroneous order, you discover that under the one-size-fits-all certiorari test, your client cannot obtain relief. In the controlling case, Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998), the Florida Supreme Court, reasoning that any error in denying a demand for trial by jury does not create "irreparable harm" that can not be remedied on appeal, held that certiorari review is not available for orders denying jury trial. According to Jaye, the fact that your client is being denied a constitutional right, will have to "show [her] hand" in a preliminary nonjury trial, may die before the reviewing court can order a second trial, and will have to go through "the time, effort, and expense, of trying a case twice" is not irreparable harm. (6) Additionally, you don't understand why Jaye proclaims that certiorari review should not be used to circumvent the rule allowing for only limited interlocutory appeals when there is no such rule to address your client's jury trial issue. (7)

But let us take a look at what happens when you apply the authors' proposed fun ctional approach to certiorari review to your hypothetical client's circumstances. Under the first prong of the functional test, it is clear to you that in denying your client's demand for a jury trial, the trial court committed a legal error that the appellate court can identify with a high level of confidence from the limited record provided in a certiorari proceeding because the policies underlying this prong of the functional test support this conclusion. First, you're certain that this erroneous denial of a demand for jury trial is an error that the reviewing judges in the certiorari proceeding would reverse on direct appeal without debate. Second, because both the federal and state constitutions guarantee the right to a jury trial, you will have no trouble establishing that this error amounts to a violation of due process. Even if this denial does not amount to a due process violation, certiorari review is warranted because the appellate court can adequately address this issue by reversing the order denying jury trial, and the overriding need of both law and society to protect the sanctity of trial by jury legitimates appellate court intervention at this stage of the litigation, particularly when this order is not a tentative nonfinal order that the trial court is likely to revisit. Third, the ruling involves a pure question of law; it does not involve discretion. (8) Finally, a denial of trial by jury is regarded as a structural or per se error, which means that an appellate court will not examine the record on direct appeal to determine whether it was harmless. (9) Thus, this order is capable of review on certiorari with essentially the same level of accuracy as a direct appeal.

Under the second prong of the functional test, it seems obvious to you that this denial of a jury trial is so detrimental to the goal of...