59 Days Is Not an Emergency: Newly Minted Judge Fay Decodes Writ Triage

Jeffrey Lewis Welcome everyone, I am Jeff Lewis.

Tim Kowal And I'm Tim Kowal, and we're going to be talking about writs today. This will be an evergreen episode, so you'll want to bookmark this one for the next time you're drafting a writ petition and trying to remember all the ways it's different from a regular appeal, and all the different ways it's going to be summarily denied for a bad reason. Even righteous writs are summarily denied. But for today's guest, we invited Tom Fay, the lead civil writs attorney for the California Court of Appeal, Fourth District, Division III. But instead, we got Judge Tom Fay, who, effective June 29, 2026, now serves as a judge in the Orange County Superior Court. Although Judge Fay will tell us he's not yet been sworn in — or if the term is "investiture," or if that's only in federal courts. But at any rate, according to Ben Shatz's blog, which I take to be authoritative, it's effective June 29th. He is now a judge of the Orange County Superior Court. Tom Fay previously served as lead appellate attorney at the 4th District, Division III. Since 2023, he served as senior research attorney in the chambers of judges David Thompson and Maurice Sanchez, and we're going to be talking about his experience as lead civil writs attorney, because that panel, I think, cycles out about every month. Am I right, Judge Fay?

Tom Fay Quarterly, quarterly. First of all, let me just say: longtime listener, first-time caller, it's great to be on here. I'm a big fan.

Tim Kowal Quarterly. I'm glad we caught you as Judge Fay, 'cause now you've just heightened the pedigree of the podcast. I appreciate you coming on.

Tom Fay I had to ask about three other people to get permission to make sure that this was still okay to do. But I did, so we're good.

Tim Kowal All right, good. Well, I guess that speaks well of either you or us — probably you. So I just learned of that appointment yesterday reading Ben Shatz's blog, which he posted on Friday, and I gather, before we hit the big red record button, that's basically when you found out as well, on Friday.

Tom Fay Yeah, well, just about. Friday is when the announcement went out. As is the practice, I got a call a couple of days earlier, but I was sworn to secrecy until the governor announced it. So you found out about the same time everybody else did, at four-thirty or so on a Friday — which is good, because it would have been very difficult for me to continue keeping that secret over the weekend.

Tim Kowal Yeah, and — I should let our listeners know, we're recording this on June 30th, so this all happened just late June. So congratulations. What was that process like? They say a federal judge is a lawyer who knows a senator — what was your connection? Are you a lawyer who knows a governor?

Tom Fay Well, no, I don't have any connection to Governor Newsom. Well, I didn't — I guess now I technically do, in some sense, in that he appointed me. The process is: you put in your application, you fill out a very long form, you go through a long series of interviews, you wait a long, long time, often without hearing anything, and you hope. And eventually, if you're lucky, and if the stars align, somebody happens to retire at the right time, there's a vacancy, and so on and so forth, and your application catches the eye of somebody whose opinion matters. And I'm not totally sure how that happened in my case. I sort of put myself out there and thought, maybe I could do this, and somebody agreed with me. So, great — I'm going to take it. I'm going to do my very best. We'll see how it goes.

Tim Kowal Well, as someone who has been a longtime appellate attorney and a research attorney at the Court of Appeal, I wonder if you were ever turned off of the idea of becoming a judge, dealing with all these attorneys who are always trying to reverse you trial judges.

Tom Fay I always looked at it as — everything we do at the Court of Appeal, almost all of the time, the trial court's getting it right. So I always saw it as, okay, they're doing a good job, this is a bunch of smart people, it would be great to be one of them, to join their ranks — that was part of the idea there. And then, of course, if you do get reversed, make a mistake, you learn something new. That's the way I always looked at it. I know not everybody sees it that way, but that's just my personal take on it. And, by the way, it's great to have a backstop of three really smart people, plus their research attorneys, to double-check your work. So it's hard to disagree with that, in my mind. But again, not everybody sees it that way.

Tim Kowal Was the bench always your goal?

Tom Fay Not exclusively, and not always. I sort of saw it as a reasonable career track at some point while I was working here. I thought, well, this kind of makes sense. I should disclose — my grandfather was a judge in Orange County Superior Court many, many years ago, and so there was always that, sort of like, well, I could maybe do what he did. But, like I told the appointment secretary, I didn't really allow myself to hope too much until I finally got the call, and then I didn't know what to do. So here I am.

Tim Kowal And what will you take from your Court of Appeal experience to the trial court bench?

Tom Fay I'll tell you one thing: if I'm ever on the civil panel, I'm going to make sure when I end a case, I end it with a judgment.

Jeffrey Lewis Ha ha ha.

Tim Kowal Yeah.

Tom Fay So that I don't have some freestanding order granting summary judgment, or an order sustaining a demurrer without an assigned order of dismissal out there, where nobody's sure the case is over. I'm going to make sure my cases end in judgments on the civil panel.

Tim Kowal Yeah. You've been a success if the Court of Appeal never issues an OSC asking the attorneys to go back down to Judge Fay to get Judge Fay to sign a judgment.

Tom Fay If that happens to me, shame on me, 'cause I've done a number of those myself, so — yeah.

Jeffrey Lewis We'll have you back on the podcast to discuss that.

Tim Kowal Okay, so let's talk about writs, and eventually we want our audience to be comfortable enough with writs after hearing this conversation that maybe we can even ask you, Judge Fay, if one of the litigants before you needs to take you up on a writ, what's their best chance of being successful. But before we get into the nuts and bolts, let's set the stage.

Tom Fay Sure.

Tim Kowal Give us a sense of a day in the life as a lead writs attorney — as someone different from the writs panel, different from one of the justices. You, as a — I guess as a now-former writs attorney — what is a day in the life processing all these writs that come in, including hot writs, some statutory, where this is their only way of getting appellate relief, and some asking for relief that day or that week. What is that like for you?

Tom Fay So a big part of the job is triage right up front. You have to figure out, okay, as they come in, which of these need a response right now — I mean today or tomorrow — which can wait for the weekly, or mostly weekly, writ conference, and which can go deeper in the queue, wait a couple weeks maybe if we get busy, that sort of thing. Triage is a big part of the job, right up front. So we're constantly looking at: okay, what's the next hearing date, what's the nature of the relief requested, what's the stay date requested, and what's going to happen if we don't grant a stay today, tomorrow, whenever. That's sort of the first thing I'm always looking for when a writ petition comes in the door. And I think that's universally across the writ staff — that's kind of the foremost consideration.

Tim Kowal And can you tell that triage information just by looking at the cover page, if the attorney has done it right, by identifying immediate stay requested by X date, otherwise this bad thing's going to happen?

Tom Fay Well, you're supposed to be able to, yes. But the issue there — so I start with what's on the front page, and I look at the prayer for relief as well. What do they want stayed, and when do they need it stayed by — those two things. And then, even at the triage stage, I look at why. Why do they need this stayed right now? And it often doesn't take too long to work through that process of, okay, what's the next date they need stayed, why do they need it stayed. And you can usually tell — if there's real irreparable harm, we'll get to what that is, there's a real case for a writ here — it's usually reasonably clear within the first few minutes of looking at the writ petition whether there's a case for relief and whether we're going to have to move expeditiously. You can tell pretty straightforwardly most of the time.

Tim Kowal Okay. And then when you're getting the writ petitions that say immediate stay requested by, like, tomorrow, are you looking at that and saying, "You scoundrel, you waited on this one, you're making me brew an extra pot of coffee and burn the midnight oil"? What's your take on those that are emergencies as of that day or the next?

Jeffrey Lewis Tonight.

Tom Fay I enjoy that part of the job, candidly, so it doesn't bother me exactly. I will say that I think generally the law — and the writs panel and the writs staff — look skeptically on a writ petition that says, "I need a stay by tomorrow" of an order that was issued fifty-nine days ago. That happens. And that doesn't necessarily mean we won't grant relief, but it does mean — the way I always frame it to people is: if you're telling me it's an emergency, I'm expecting you to have treated it as an emergency as well. So if you need something by tomorrow, that order should have come down maybe last week at the absolute earliest. And then, of course, this is my little practice tip that I've been giving people, and I've started seeing it pop up more, which is good: when you do have a writ where you're asking for really quick relief, especially same-day-type relief, and you're going to get the writ petition in in the afternoon — don't wait until the petition's filed. Call our clerks. Give us a heads-up: a writ petition is coming, a hot writ petition is coming, we're going to be asking for an immediate stay. That helps us, because on our end we need three different groups of people to be able to issue you writ relief. One, we need a panel of three justices. We need a writ attorney to look at it in the first instance and make a recommendation — I guess in theory that's sort of superfluous to the writ panel itself, but you get the idea. And then, of course, we also need a clerk to potentially stay late to make sure the order gets filed properly. And if we get a call in advance — say 2:30, 3:30, whenever — we can set that up and be ready for your hot writ petition to come in, and then we can turn it around and grant relief or not, as appropriate, as quickly as you'd want us to. It's much harder to do that if we don't have that advance notice and the writ petition comes in at 4:30, 5:00, 5:30. Much harder for us to round up all the people we need to give you the relief you want.

Tim Kowal So when you say call the clerk early, you're talking about the same day, at some point before the office starts winding down. Is that the idea?

Tom Fay That's the idea, yes. It helps — we don't mind anytime. If it's for something that's a day or two out, that's also fine. But the main practice pointer, in my mind, is: especially for the same-day stuff, give us a heads-up. That way we can make sure we have the whole chain ready to work through your petition as fast as you need it.

Tim Kowal Yeah. I was recently working on an emergency writ petition, and I was caught with this conundrum of: look, we're going to be asking for relief by, like, the end of that week — it was Thursday, and it was Monday — and I thought, we really need to elevate the quality of the writ. And so, if I put it out Monday, which I technically could, it would give the writ panel an extra day, but I really need to get it elevated to a higher level of quality, so we push it out another day. Do you have any advice for attorneys who are in that conundrum, trying to figure out: do I rush this out the door because it's of an emergency nature, and the writs panel will understand that, look, this is not our best work, but it's under a time crunch?

Tom Fay I think I'd give sort of an "it depends" answer — a very lawyerly "it depends" answer. Basically, you're caught between two competing considerations. One, you want to have the best work product possible — you want to give the best arguments you can, in the most convincing way possible, of course, and that takes time to do. On the flip side, you don't want to wait so long that the writ panel doesn't have time to consider it in a complete and thorough way before it decides whether or not to give you an immediate stay. But what I can say is: if you get your writ petition in a full day, two full days before the stay you're asking for, you're going to get a complete, full workup of what you've got. So in your example — if the thing you need stayed is on Thursday, and you're on Monday, and you're thinking, "Man, I could file this today, but it's kind of junky, and I'd like to refine this and file it Tuesday" — my suggestion to you, and again this is my opinion, I should have caveated this at the outset: any opinions I'm giving here are mine, not the Court of Appeal's, not the justices' — my suggestion would be, you can take that extra day to Tuesday. We can get you an answer. We're good at working these things up in short time, such that 24 hours, 48 hours is enough. We can handle that.

Tim Kowal Yeah, we did take the extra day, and we wound up having to file it right the day before the bad thing was going to happen. And the second division thoroughly read and digested all 50 pages of our dense legal arguments and summarily denied it. So — yeah. Do you have any advice for attorneys who are getting that summary denial after filing a writ petition where you think you're righteous on the law —

Tom Fay That's how it goes.

Jeffrey Lewis Ha ha ha.

Tim Kowal — you think this really is going to render the appeal moot, we're going to have no other relief, and it's summarily denied. Does the court just disagree that, no, don't worry, it's not really moot, we can still give you relief later on the direct appeal — or is it just, no, your arguments are just not likely to prevail?

Tom Fay It's inscrutable — those summary denials are inscrutable, sort of by design. The thing to remember, of course, is a summary denial of a writ petition in the Court of Appeal means your writ petition is denied, and that's all it means. It doesn't mean your arguments were wrong. It doesn't mean you shouldn't raise them again in the appeal itself, in the briefing on the appeal. It doesn't mean the panel disagreed with you, or even that you'd have the same panel on the appeal itself. It might mean — for example, you're not going to know this from the summary denial, it's just the nature of the beast — it might mean your writ petition was untimely for some reason. It might mean there was a procedural problem with it that the court decided couldn't be fixed in time. It might mean the court disagreed with you on the merits. It might also mean the court felt that, actually, there's no irreparable harm here, we're content to wait for an appeal. It could mean any of those things, or all of them at once. There's no way to know. And it's important to remember also that writ relief in the Court of Appeal is essentially always discretionary. So it's not the sort of situation where you're going to get, as you would at the end of an appeal, a full reasoned opinion that's going to tell you, "Here's exactly where we depart from your reasoning, counsel." Instead, you get: well, you lose on this writ petition, it doesn't mean anything for the future, and we're not going to tell you why, because we don't have time for that.

Jeffrey Lewis Yeah.

Tom Fay Having been a private practitioner, having filed writ petitions in this court and in other courts, and having gotten the one-liner denial and thrown up my hands and thought, "What are you thinking?" — I understand the frustration, but that's the way our courts operate. It's standard practice for a bunch of good reasons, and as frustrating as it is, I don't suspect it's likely to change.

Jeffrey Lewis So, Your Honor, it's okay to be devastated, but don't be completely crushed — just be slightly disappointed. Let me ask you though: sometimes we get writ orders that say "denied," and sometimes we get writ orders that say "denied, petitioner has an adequate remedy at law," or something. Is there any rhyme or reason to when the court decides to add a second sentence?

Tom Fay Yes. That's done at different times for different reasons, and different justices have different philosophies about when and why to do that. It is done — I will say this — at least in our court, in my experience, it's done intentionally. If there's something added, if there's some extra sentence there, that was done intentionally, specific to your case. It's not typically, at least on the civil side, a form order that's going to say that. The form says your request is denied, and that's it. So if there's extra language there, it's very likely to be specific to your case. Now, as I said before, different justices have different reasons why they might do that. Sometimes they're trying to educate the parties about, hey, maybe you want to raise this argument again on appeal. Sometimes they're trying to let the trial judge know something about the posture of the case, or something similar. It just depends. And, like I said, every justice approaches that question differently. Some prefer, as much as possible, always, always, always summary denials. Some justices want to say something more, a lot more frequently. So I can't really say anything more specific about that, other than — you can't read too much into silence, if that makes sense. The one-liner denial — don't read anything into that. But if there is something written, specific in your order beyond that one-liner denial, there's a reason it's there.

Tim Kowal I don't have enough of a sample size to draw any conclusions about what the Court of Appeal might be trying to communicate, and to whom — is it to the litigants, is it to the trial judge? The one I got, somewhat recently, was a summary denial, and it said something to the effect — it was a probate matter, and it had to do with the guardian ad litem actions that were being challenged — and the speaking denial said something to the effect of, "irreparable harm not established on this record," which we took to mean, kind of, not yet, but we're watching — come back to us if something else happens.

Tom Fay I can't speak to any particular case — obviously I don't know if that case was even in our court — but what I can say is that sounds to me like a plausible reading of that order. And it seems like, if that language was added there — again, not knowing the case, not knowing anything about it beyond that — it sounds like the court is saying, different facts later, we might come to a different conclusion.

Tim Kowal Yeah. So a panel might be minded to signal that we find the legal issue potentially interesting, we just don't think there's a good vehicle for us yet.

Tom Fay Right. And in the instance you're talking about — the specific language you're describing, and again I don't know any details of this particular thing — but the specific sentence you're describing, "no irreparable harm yet," it almost sounds to me like the court is thinking some facts might change between now and some future date, and at that time we might perceive there to be irreparable harm.

Tim Kowal And I'm only roughly paraphrasing the language.

Tom Fay Don't be dissuaded from maybe filing a subsequent writ petition — that might be the sort of thing the panel was thinking. I don't know, obviously, and if I did know, I couldn't say.

Tim Kowal Do you have any advice for the attorneys who are drafting a writ petition? What mood, or what state of mind, should the attorney be in — high urgency, high alert, or very cool and clinical? Is that a needle you have to thread?

Tom Fay I think so. You need sort of both pieces. You need to be cool and clinical on the legal issues — you need to be clear-minded that there is an actual legal error here. And you also need to be clear-minded that, in most cases, there is irreparable harm here: my client is going to have some kind of unfixable, unremediable problem that is significant and that won't be solved by an appeal, I can't avoid it any other way. And most of the time it's going to need to be urgent as well. So you need all of those components. You need to convey to the court a certain level of urgency, a certain level of, it's an emergent condition, it's a situation that can't be resolved, the trial court has left us with no other options, and I'm not going to be able to fix this on appeal from the final judgment — so help me out. But also, here is a well-reasoned, clear-minded set of legal reasons why there is an error here. And, of course, you want to avoid, as you would in any appellate briefing, the emotional castigation of the trial court — the writing where you're saying, "I can't understand why this trial judge did this, it's crazy." We don't need that, that's not necessary. Just say the trial judge made a mistake, here's what it is, can't fix it, and it's irreparable harm, my petition's timely, you've got to do something about this. That, in my mind at least, is the best kind of writ petition — the most likely to prevail.

Jeffrey Lewis Do you often see writ petitions or briefs — merits briefs — where lawyers are actually taking potshots at trial counsel or the trial judge?

Tom Fay It happens. It does happen. And I can understand, to a certain extent — sometimes you can see, and a lot of people don't get all the way there, but you can read from their prose the outrage. Even if they're not using all the adjectives, all the adverbs, you can read the outrage, you can feel that sense of it. And I think you want to avoid that, because it's important to remember that everybody on the Court of Appeal, all the justices of the Court of Appeal, spent time as trial judges. They understand the trial judge's job intimately, and they have a lot of respect for the trial judges they're reviewing. So it doesn't do you a ton of good to have your brief contain this tone of, "How could this crazy person do this?" Instead — again, the optimal brief is: look, the trial judge made a mistake, and this is the right answer. And you don't even get into necessarily why that mistake was made, or what could have motivated it — we don't care about that. Just that a mistake was made, the law requires a different result here, my client will suffer irreparable harm if it's not fixed, for some reason an appeal won't work, help me out. Like I said, that's the best approach. We do sometimes see — and we've occasionally had one-off-type situations where we've had to issue an OSC re: sanctions because of how intemperate the language was in one of these briefs — but that's not the majority of it. It's those in-between ones where I think counsel doesn't do themselves any favors.

Jeffrey Lewis I see.

Tim Kowal So that wraps up part one of our conversation with Judge Tom Fay. In the second half of our interview, we go from strategy to mechanics — exactly what Rule of Court 8.486 requires in your petition as a nuts-and-bolts matter, why the words "stay requested" in all caps, bold, and underlined can save your client's case, and how to read the tea leaves when the court issues a Palma notice versus an alternative writ versus an order to show cause. What's really the difference between those three things? And whether supersedeas is really a writ at all, or just a motion for stay with an intimidating name. You'll want to clip and save part two as well. See you then.