The Oklahoma Bar Journal February 2023

Rule 1.11. 28 Petitioners are not required to file a separate brief and application to assume original jurisdiction but can combine the two into one document if desired. Along with the application and brief, a petitioner should file an appendix containing all supporting documentation. 29 Most importantly, in the appendix, the petitioner should include the pertinent order that precipitated the original action; the evidentiary material examined by the district court, including affidavits, exhibits and other materials; relevant portions of transcripts; and relevant district court filings. 30 Please only include relevant portions of exhibits and evidentiary material. 31 A petitioner must include an index of the docu ments in the appendix, providing the document’s description, date, relevancy to the matter and syn opsis. 32 To assist the court in its review of an appendix, a petitioner should tab each document in the appendix. While Rule 1.191(d)(1)(a) notes that a petitioner may include copies of cases they rely upon in the brief, it is recommended that only cases or other legal author ity that may prove difficult for the Supreme Court to locate be included. Including full copies of every case cited is not necessary. If a petitioner desires to file part of the appendix under seal, consider two things. First, if the documents are already placed under seal in the district court and the petitioner plans to include those documents in the appen dix, remove the documents from the appendix and place them in a separately sealed manila enve lope with the district court order sealing the documents attached to the envelope. Second, if the doc uments are not currently under seal, the petitioner must first ask the Supreme Court to seal the doc uments. The petitioner should file

court examines whether there was an abuse of discretion. 16 If the court answers both questions affirma tively, it can issue a writ of mandamus or prohibition to the district court concerning the discovery order. 17 The Supreme Court denies most applications for original action. For the party or attorney filing an original action already facing a difficult task, it is import ant to keep in mind reasons the court has enumerated to reject original actions. Obviously, where a party cannot satisfy either the elements for a writ of mandamus or prohibition, the court will deny the application to assume original jurisdiction. 18 One of the elements that routinely trips parties up is whether there is another adequate remedy available. Where the complained-of order is appealable, neither prohibition nor mandamus is “a substitute for appeal.” 19 However, determining an ade quate remedy is within the court’s discretion. For a party complain ing of an unappealable interlocu tory order, waiting for the appeal can be an adequate remedy, and simply because a party must wait until the completion of the dis trict court litigation to pursue the appeal will not make the remedy inadequate. 20 However, where jurisdiction is lacking or venue is incorrect, an appeal presents an inadequate remedy. 21 And while mandamus can be used to cor rect a completed act, prohibition “is not available as a corrective remedy to undo a completed act already performed but is properly a preventive remedy.” 22 Keep in mind cases where the court has explained why writs of mandamus or prohibition cannot be issued, and you will stand a slightly better chance at extraordinary relief in an original action.

FORMATTING YOUR ORIGINAL ACTION

Petitioners seeking to invoke the court’s original jurisdiction should consult Oklahoma Supreme Court Rules 1.190 to 1.194. 23 Rule 1.191 details the court’s requirements that a petitioner needs to file: original jurisdiction and petition for mandamus or prohibition, Rule 1.191(b); 24 2) Brief in support of the application, Rule 1.191(c); 3) Appendix, Rule 1.191(d); 25 4) Notice, Rule 1.191(e); and 5) Entry of appearance. Additionally, if a petitioner seeks an emergency stay of the district court proceedings, the petitioner must file a separate motion for a stay. 26 The application and petition (as one document) should consist of three things: the reasons relief is sought with the Supreme Court; the specific remedy the petitioner seeks ( mandamus , prohibition, etc.); and the underlying facts of the proceeding. 27 A petitioner should use the application and petition to set out the pertinent facts and procedural history along with the relief the petitioner is asking from the court. It is important to remember the court and its staff have no familiarity with the underlying case – fully but suc cinctly communicate that story to the court. The brief in support should be devoted to the petition er’s legal argument for the writ of mandamus or prohibition. There is no need to repeat what was laid out in the petitioner’s application and petition as these documents are routinely all read together, and repeating the same facts or argu ments simply wastes the court’s time. The brief cannot exceed 15 pages and must comply with 1) Application to assume

8 | FEBRUARY 2023

THE OKLAHOMA BAR JOURNAL