Legal Definitions - writ of consultation

A writ of consultation is a special legal order issued by a higher court (known as an appellate court) to a lower court. This order compels the lower court to move forward and hear a case, or take a specific action, that it had previously declined to address or proceed with. Essentially, it is a directive from a superior court instructing a subordinate court to resume its proper jurisdiction over a matter it had improperly abandoned or refused to consider.

Here are some examples to illustrate how a writ of consultation might apply:

• Example 1: Jurisdictional Dispute

  Imagine a state trial court dismisses a complex business lawsuit, ruling that the matter actually falls under federal jurisdiction and therefore the state court cannot hear it. The plaintiffs, believing the state court does indeed have proper jurisdiction, appeal this dismissal to the state's appellate court. After reviewing the legal arguments, the appellate court determines that the trial court misinterpreted the jurisdictional rules and *does* have the authority to hear the case. To correct this, the appellate court issues a writ of consultation, ordering the trial court to reinstate the lawsuit and proceed with hearing the business dispute.

  This example illustrates the writ compelling the lower court to "proceed in a matter" (the business lawsuit) that it had "previously refused to hear" (by dismissing it for lack of jurisdiction).

• Example 2: Refusal to Act on a Critical Motion

  Consider a civil case where the defendant files a crucial motion to compel discovery, arguing that the plaintiff is deliberately withholding essential documents needed for their defense. The trial judge, without providing a valid legal reason, simply refuses to schedule a hearing for the motion or issue any ruling on it, effectively stalling the entire case. The defendant then petitions the appellate court, arguing that the trial judge's inaction is an abuse of discretion and is preventing a fair resolution. The appellate court, finding the judge's refusal to act unjustified, issues a writ of consultation, directing the trial judge to immediately hear and rule on the defendant's motion to compel discovery.

  Here, the writ forces the lower court to "proceed in a matter" (hearing and ruling on the discovery motion) that it had "previously refused to hear" (by ignoring the motion and not scheduling it).

• Example 3: Misinterpretation of Procedural Rules

  Suppose a family court judge, due to a misunderstanding of a newly enacted procedural rule concerning parental rights, declares that her court can no longer hear a specific type of custody modification request. This decision effectively halts all such cases that come before her. An affected parent appeals this decision, arguing that the judge's interpretation of the rule is incorrect and that the court still has the legal authority and duty to hear these cases. The appellate court agrees with the parent, clarifies the correct application of the procedural rule, and issues a writ of consultation, ordering the family court judge to resume hearing and deciding all valid custody modification requests.

  In this scenario, the lower court "refused to hear" a category of cases based on a mistaken legal interpretation, and the writ compels it to "proceed" with those matters as required by law.