When Your Court Doesn’t Rule, Ask, Ask Again

Occasionally, litigants experience frustration with the court system because their case is taking too long. Frustrations with case delays are particularly acute when a fully briefed issue that will clearly advance the case remains pending without resolution.

When this occurs, litigants are faced with an uncomfortable choice: Should the litigant take steps to compel a ruling, risking the ire of the court? And if so, what steps should the lawyer take?

In most U.S. jurisdictions, a writ of mandamus or other similar appeal is how a party may compel a court to rule on a pending motion. While pursuing an order from a higher court, compelling lower court action is a drastic measure—indeed, a writ of mandamus is often considered an “extraordinary” remedy of last resort—but desperate times call for desperate measures, as the proverb goes.

But how do you know if this time is one of those drastic times that warrant a higher court’s assistance? Each case and scenario is different. Hope of guidance is not lost, however.

Every now and then a case comes along that reminds us that seeking an order compelling a court to rule in a case is not only worth the risk but is the right course of action.

A Scenario Where Taking the Risk Was Worthwhile

Take for example the exceptional scenario that led to the issuance of a writ of mandamus against a trial court in Harris County, Texas in February in In re Gerald Hoffman. In that case, both parties agreed that mandamus was appropriate to compel the trial court’s ruling on the defendant’s motion to compel arbitration that had been pending for almost 16 months.

The appellate court issued mandamus relief because “the trial court’s failure to rule ha[d] prevented the entire case from proceeding.” In ordering the lower court to issue a ruling, the appellate court noted that its ruling was “the twelfth grant of relief against the [trial court judge] for failure to rule.”

That trial court judge had been the subject of 21 prior appeals for failure to rule—11 granted, nine mooted, and only one denied. Both parties agreed the trial court was needlessly delaying the case by failing to rule on the motion to compel arbitration and the parties were aided by the fact the judge had a long history of failing to rule.

Practitioners are rightly wary of seeking this relief, as it can convey the belief that the judge is asleep at the switch. So, if you find yourself contemplating a writ of mandamus to compel a ruling, and don’t have a court with a history of failing to timely rule as in In re Hoffman, a few helpful steps can help your cause.

Steps to Prod the Court

First, before pursuing the extraordinary writ of mandamus, ask your court for a ruling. Then ask again. And when that doesn’t work, consider asking again.

This may seem obvious, but in practice it may not be as straightforward or easy as it seems. The need for a record on appeal demonstrating your diligence in seeking a ruling from the court, however, cannot be overstated.

In most instances, simply reminding the court that there is a pending motion that is ripe for ruling is enough. Indeed, some courts encourage movants to “send a letter to alert” the court when a fully briefed motion has not been decided within 60 days.

A letter to the court may be more powerful when the parties submit it jointly, too, as it shows that both parties believe resolution of the pending motion will progress the case. Regardless, if sending gentle reminder letters to the court does not work, consider filing a motion for ruling or a motion to expedite consideration of the pending motion.

Second, check the local rules to see if the court provides guidance on obtaining rulings on motions within a reasonable time. In In re Hoffman, 16 months was not reasonable. Was 15 months reasonable in that case? Probably not.

Under the right circumstances, a court may consider even a couple of weeks to be an unreasonable delay for a ruling. Sometimes, too, court rules provide those certain types of motions must be ruled on within a certain period or shall be decided “promptly” or “immediately.”

There may also be rules that classify entire cases or appeals as “accelerated” or “expedited” matters that brings with such designation a host of timelines, including shortened briefing and decision parameters. These rules can aid in compelling a court to rule when a particular issue or matter exceeds the court’s own set expectations.

... And as a Last Resort

In most instances, the realities of our legal system, and the long memories of judges, mitigate against pursuing a writ of mandamus to compel a court ruling. There are numerous reasons a decision might be delayed.

For one, our legal system favors access to the courts, and judges have increasingly busy dockets. Criminal cases, too, can take precedence over civil cases due to constitutional and statutory speedy trial rights. In appeals, it is even possible that the delay in your case is due to a pending decision in a completely different case.

Despite these realities, litigants have reasonable expectations to finality, and the writ of mandamus can compel a hearing or resolution of a motion under the right circumstances. If you have a frustrated client due to a court’s failure to rule, consider pursuing a writ of mandamus.

Before you go that route, however, get creative and be sure to ask, ask, and ask again for a ruling on the record. If that does not result in a ruling on your motion, at least you will have built a record to support your appeal in the event you pursue extraordinary mandamus relief.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Alexander Burch is a Houston-based associate in Baker McKenzie’s Litigation and Government Enforcement and the Global Dispute Resolution Practice groups. He is a former Texas Supreme Court clerk and focuses his practice on civil trial and appellate litigation.

Christina Dines is a Miami-based associate in Baker McKenzie’s Litigation and Government Enforcement Practice group. She is a former federal law clerk and focuses her practice on commercial litigation and investigations.

Aaron Goodman is a Los Angeles-based partner in Baker McKenzie’s Litigation and Government Enforcement, Global Compliance and Investigations, and Securities Litigation Practice groups. He litigates complex local, national, and international matters and has significant domestic and international investigations and regulatory experience.