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Obtaining Writs of Mandamus to Assist Aggrieved Government Employees

Feb 9, 2015
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Michael Morguess discusses his new appellate practice where he frequently seeks writs of mandamus—an order to a government agency or official to behave in accordance with the law—for clients terminated by government agencies. With jobs and livelihoods on the line, Michael faces a lot of pressure running his own firm, but the intellectual challenge and thrill of victory buoy his non-traditional litigation practice. Michael is a graduate of Western State University College of Law,

Transcript

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews a lawyer who runs an employment law practice, helping clients who have been terminated by government agencies.

Debby Merritt:

Today, we're joined by Michael Morguess, a graduate of the Western State University College of Law. After 16 years of practice, Michael now runs his own firm in Southern California. Michael focuses primarily on writs of mandamus, an unusual practice area. In California, aggrieved government employees seek these writs to challenge adverse actions by the agencies employing them. Over the years, Michael has worked for employees, agencies and the courts that resolve these disputes. Michael, can you explain what a writ of mandamus is?

Michael Morguess:

A writ of mandamus is in order to a lower tribunal to do something required by law. The writs that I do are in superior court, which in California is the state trial court. So when a court issues a writ of mandate, it's in order to, for instance, a public agency that it must set aside its administrative decision, issue a new decision. It's the final result in these proceedings and you have the contempt power of the court to enforce the writ. It could be an employee disciplinary decision, which is mostly what my practice focuses on or decisions of other administrative bodies, a state personnel board, even something like a public utilities commission.

Debby Merritt:

So you have a client who's been fired from a public agency, they've had a hearing at that agency, and then you take their case to the court and you ask the court to tell the agency to do something different.

Michael Morguess:

That's right. And if I am successful, the court will issue a writ that says something like it's issued in the name of the people of the state of California and it's to the city of Los Angeles. You're commanded to set aside your decision of X date in the matter of so-and-so employee and issue a new decision that is consistent with the opinion of the court.

Debby Merritt:

Michael, can you give us some examples of other fields in which people do writ work?

Michael Morguess:

Another big area that you see is environmental law. For instance, let's say Walmart wants to build a distribution center in a town. There's usually citizens that form a group and oppose it. Part of that project is going to be environmental review and that has to get approved by the local agency. Those are very often subject to challenge in court through writs of mandate. It's really for review of any government decision. If you represent developers, if you represent homeowners who are trying to build something and need special permit, these are the types of cases that will find themselves in a writs department of the trial court.

But I do have to say that a lot of it is more focused on the procedure than the substance, if that makes sense.

Debby Merritt:

So let's follow through what it means to be a writs lawyer for a public employee. The typical client who comes to you, I take it, has been terminated from their job.

Michael Morguess:

Usually it's terminated or some other form of discipline, but usually termination. And by the time that they come to me, they've already had an administrative appeal, which they're entitled to under due process since they're a government employee and they've usually lost that hearing. So they want to go to superior court and they do that by filing a petition, which is the operative document similar to a complaint.

Debby Merritt:

And when a government employee is fired in California, I take it that the person has a hearing before one of these administrative agencies.

Michael Morguess:

Yes, usually a civil service commission. It could be a city council, it could be a school board, but it's internal. So this is before it ever reaches court.

Debby Merritt:

So it's a little bit like having a hearing at a private employer.

Michael Morguess:

Yes, except it's constrained by principles of due process. You don't necessarily have to have an attorney represent you at the administrative level, but most people do and a lot of times that's paid for by the employee union or association or through some other agreement with the defense trust, for example.

Debby Merritt:

So we have public employees who have either been fired or suffered some other adverse action at the workplace and they have first had a hearing within their own administrative agency, but it's a little bit, it's like an informal court hearing-

Michael Morguess:

That's right.

Debby Merritt:

... Some of the things that we would see on TV, but more informal. And when they lose, they then come to you.

Michael Morguess:

Right. If they lose the next step is their judicial remedy, which is where I come in. And you file a petition in the trial court seeking review, almost like going to the court of appeal, except this is an appeal for all intents and purposes from an administrative agency decision.

Debby Merritt:

So let's take it from the top then in terms of how a client would approach you and how you would handle the case. Let's suppose that I've been fired by my school district and I've had my hearing and unfortunately the firing was upheld. I come to you. What happens in our first meeting?

Michael Morguess:

Usually the first thing that happens is I explain the procedure because as you can tell from this discussion, it is not something that people are typically familiar with. You don't see this type of thing happening on television. It's not fascinating. It's not spectacular, let's put it that way.

Debby Merritt:

We're not going into a trial courtroom where you're going to pull a rabbit out of the hat.

Michael Morguess:

That's right. And there is no jury. It's a hearing before a trial judge.

Debby Merritt:

Go ahead and explain the procedure then to me just as you would.

Michael Morguess:

Client comes into my office and I explain what we're seeking here is judicial review of the decision that you just had. Here's what the court's going to look at. They're going to look at the transcripts from the hearing that you had before the administrative agency. So there's usually a court reporter or a recording. They're the exhibits that were submitted to the administrative agency, any notices and then ultimately the final decision. As the petitioner, the employee in this case, it's their responsibility to put together this record.

It's called the administrative record, and that is the evidence in the case. There is no live testimony. We don't call witnesses.

Debby Merritt:

What if I tell you that I've discovered a real smoking gun that will help my case? Could we introduce that new evidence?

Michael Morguess:

That happens every time. I hear that every time. Introducing new evidence is usually unlikely. You had to have been unable to introduce that evidence at the administrative level. Just like in a trial court proceeding, you can't appeal a trial court decision and say, hey, I've got this new evidence. Unless it didn't exist, there was no way you could put it before the administrative body, and it's relevant. It has to be relevant. It has to make a difference. But getting back to the procedure, we submit the administrative record, which is the evidence before the court, and then it basically works on a briefing schedule and it's very much like a motion hearing.

If I'm representing the employee or whoever the petitioner is, I file an opening brief. I must cite to the administrative record if it's particular testimony, the page that testimony's on, if it's findings of an expert, whatever it is. And if it's not in the administrative record, it doesn't exist as far as the court is concerned. So your entire world is the administrative record. I do my opening brief, my opponent does an opposition, I do a reply, and then we go and we argue the case. And in that way, that part of the procedure is very much like an appeal from a trial court decision, which is why doing appellate work is a natural spinoff from doing writ work.

Debby Merritt:

Interesting. Is writ work a bit more fact-based though than appellate work usually is? I'm trying to think of the difference.

Michael Morguess:

Whereas appellate work is mostly legal issues, you try to focus on legal issues because that's where you have the best chance of getting the lower court overturned. You try that same tactic on superior court writ work, but it is also fact intensive because the trial court can weigh the evidence and it's supposed to reweigh the evidence and reach its own findings on that evidence.

Debby Merritt:

So this is a good line of work for somebody who likes the style of appellate lawyering because you're doing more work with a record and with writing and then with emotion argument with the court.

Michael Morguess:

One of the things I enjoy about what I do is it's somewhat more intellectual than dramatic. There's no fist pounding. You don't yell at anybody, and it's much less contentious. There usually are no discovery disputes. There's no motions in limine. There's no motions for summary judgment. So a lot of what leads to the conflict between parties in ordinary litigation does not exist in this type of practice.

Debby Merritt:

And yet you still have the thrill of winning.

Michael Morguess:

Absolutely. There is nothing like calling somebody up and telling them, hey, you're going back to work. I got your job back. I have worked on the other side as well, representing cities, not necessarily in employment matters. We're not limited to employment matters, and it's not nearly as much fun to call up a city manager and say, don't worry, you'll never hear from that guy again. It's just not the same thrill.

Debby Merritt:

Talk us through now how you prepare for a case, the work that you do on your own. I've been into the office, you've explained to me that we're not going to be Perry Mason. We're not going to go out and dig up new facts. I go back to perusing the employment ads or whatever I'm doing. What do you do next as an attorney?

Michael Morguess:

Well, the next thing I have to do in this particular case is make sure that I've got the administrative record. Usually that involves contacting the administrative agency that conducted the hearing. That involves a substantial cost depending on how many days of hearing there were. Could be a couple of hundred dollars, could be thousands of dollars, and that's something that the client needs to be prepared to pay for. Just as an aside, I believe after, based on my experience, that it's very important to prepare clients upfront with realistic expectations such as these are the costs you're going to have to put forth sometime during this proceeding.

You may not win. This isn't a slam dunk you. You're not taught that in law school. That's just something that you have to learn along the way after disappointing a lot of people.

Debby Merritt:

Right. Sometimes in that initial conversation, I assume you have to tell the client that this is the opposite of a slab dunk and it may not be worth their while.

Michael Morguess:

That certainly happens. I am upfront with all my clients and I've rarely had a client or potential client say to me, you've talked to me out of it. As long as they go in with eyes wide open and they want to have their day in court and they understand what the procedure is and that it's not a redo of the administrative hearing, they're entitled to have somebody represent them and take them through that process. And that's my job. That's where I come in.

Debby Merritt:

That's a useful point that many of these employees may want two things. They may want to get their job back, but it's also important for them to feel that they've had their say.

Michael Morguess:

After you've lost, it's devastating. Your career may be over depending on the line of work you're in and depending on the basis for the termination. And they want to have a second shot. Oftentimes they'll go with the same attorney that represented them at the administrative hearing. But I counsel against that, not just so that I can get their business, but it's a different proceeding. The arguments that worked at the hearing level do not work at the writ level, and so you need someone that is not so wed to the arguments.

The big reason it's good to have a second attorney handling the second procedure is you get a fresh look at it. When I get the administrative record, I know nothing about the case other than what the client has told me. They're never wrong. They didn't do it. It's not their fault. I hear things like that. And while I understand them, I know that there's another side to the story. So when I get the administrative record, I'm in the same position as the judge. I know nothing about the case. I have to be convinced that there's some winning arguments.

If I'm the attorney that handled the administrative hearing, I'm already convinced. I've already made the arguments that there's a little bit of ego involved.

Debby Merritt:

That makes sense to me. So you sit down with the administrative record and you read it through.

Michael Morguess:

Well, not front to back. I've developed a certain way of approaching it. The first thing I'll do is I'll look at the final administrative decision because that's the decision that I need to overcome and that gives me a reference point for everything else. So I'll look at that. It could be anywhere from 10 pages to 60 pages on average. That'll tell me the evidence relied on what the administrative charges were, what the findings were, credibility findings. It'll give me a good starting point. Then I will look at the actual notice of charges levied by the administrative agency.

It'll say something like, you're alleged to have done this on this date. You violated these personnel rules, X, Y, and Z. So now I've got the beginning and the end, and then I'll typically look at the attorney's closing arguments. And if I'm lucky, they're also in brief form, maybe they've done closing briefs. So that'll give me at least what the attorney below thought were the weaknesses and the strengths. And the other side as well, I need to read their brief too. Because at some point I'm going to be facing their arguments. It can be very intriguing.

I mean, sometimes you find stuff, especially when you find something that the attorney below did not even consider. It doesn't happen all that often. But you see procedural violations, technical violations, which are helpful. Because if you're just going to make the same arguments to the court, for instance, you should believe my client over this adverse witness, that's not always so persuasive. There needs to be a reason to believe one witness over the other, particularly where the administrative agency has already ruled against your client.

In other words, the burden shifts to the petitioner once you get to court to show that the decision is wrong. At the administrative level, the agency pursuing the charges has the burden of proof.

Debby Merritt:

What do you do after you finish reading the record?

Michael Morguess:

Well, I talk with my client about some of the issues that concern me, some of the evidence I found. Sometimes it's not clear to me who all the players are, but we discuss that. We meet. I try to give them an opportunity to tell me everything they want to tell me, even though very often a lot of it may be irrelevant. But it's important that the client feels like they're able to communicate with their attorney, that their attorney heard them and did consider their position. Usually what happens next procedurally is we go for a trial setting conference or a status conference before the judge.

The judge will set a hearing date a couple of months out, we'll have a briefing schedule, and then we start working on the briefs. If there are some legal issues that concern me. I'm usually familiar with most of the issues since some of them come up again and again, but there's usually some legal research involved. The typical stuff you would prepare submitting a brief.

Debby Merritt:

You're working entirely on your own now as a solo?

Michael Morguess:

Yes. The firm I was with before folded. After considering a couple of offers, I decided after 16 years of practicing that this might be an opportune time to go out on my own and it completely changes the dynamics.

Debby Merritt:

Tell us about that. What's different about being a solo?

Michael Morguess:

Sure. Well, when you're working for a firm, you're not necessarily concerned with running the business. You may be concerned with networking and marketing, but you still get a paycheck. But you do get to focus on the practice of law. You get to be an attorney. Yeah. Sometimes you're a politician, sometimes you're a businessman to certain extents as any other attorney would be. But once you go out on your own, you have a whole host of other issues. Anything that goes wrong is your problem. Nobody pays you just to show up in the morning anymore.

So what I've learned are there basically three aspects to running your own firm that are different. You have to be a business person, and that takes not just seeking out knowledge, but a lot of drive and dedication. You have to think ahead and market and develop business. And then if you have time, you do some practice of loft. You can't have any of those things without the others.

Debby Merritt:

And you also have to figure out how to get the copy machine fixed if it breaks.

Michael Morguess:

That's right. And deal with the phone company and get your voicemail running, set up this Skype interview, listen to voicemails. I mean, if you're really doing it on your own, you're also preparing the proofs of service, you're going to the mailbox, you're picking up the mail, you're filing, you're scanning stuff in.

Debby Merritt:

Do you have anybody at all helping, paralegal, office support?

Michael Morguess:

Well, to start out, I wanted to keep my overhead as low as possible, and I tried to have my wife help me out. But we have kids and that makes it somewhat impractical and her time is limited. I've been working out of my house, although I do rent space in a suite so that I have a conference room and I have a physical address for my mail to go to and a place to meet clients. I've had my oldest son help me with filing, but he's my oldest son. He's not professional.

Debby Merritt:

Right. Well, what about taking on a law student or a recent graduate?

Michael Morguess:

Well, that's probably next. Either hiring somebody on a contract basis or having somebody clerk for me, but I'm still in my first year of practice. I'm still kind of figuring it out. If I want to be successful and I want to make more money and get more work done, I do have to delegate some of this work because the reality is for me to do an hour of administrative work, I'm losing could be hundreds of dollars an hour.

Debby Merritt:

Sure.

Michael Morguess:

It's cheaper to pay somebody 20, 40, $50 an hour to do the same thing, and I can have them work for four or five hours and make that up in one or two hours of attorney work.

Debby Merritt:

Michael, finding clients has got to be a challenge these days. How do you go about finding them?

Michael Morguess:

A lot of it is word of mouth, because I'm in a particular niche, which is important these days, especially in California because it's a crowded profession, so you need to develop a particular specialty. And so by doing the work I do, I'm trying to become and somewhat have become known as the guy that does this. If you've got this kind of case, I know a guy that does that. And I get calls from other attorneys, I get referrals from other attorneys, from former clients. I haven't really kept up with the advertisements or the marketing, but you can go approach public employee associations and try to get on their panel to be one of their several attorneys that take on cases.

I've been doing this for less than a year or close to a year. I've never run a business before. So for me, it's quite a learning experience. I really admire people that are able to pull it off. It takes a lot of drive. That's one of the main things it takes is drive.

Debby Merritt:

Sounds like it. It's sort of an exciting time to talk to you when you're just at the beginning of this new venture. What about the ways in which you charge clients? I'm thinking that fired government employees don't have a lot of extra cash.

Michael Morguess:

Yeah. Usually by the time they've lost their job, they don't have a big cash flow, but there's always somebody that is willing to come up with a certain amount of money to perhaps save their career. I typically charge for individual clients, meaning their association is not paying the bill. But for an individual who is out of work, I charge a flat fee and I try to get the money up front because I know that once the case starts going, if things are not looking good, they're not going to be paying their bill. That's the reality of it.

Words of wisdom that were given to me a long time ago were try to get the client to pay upfront. Of course, you have to keep the money in a trust account and you can withdraw from it as you earn the money. But if you can get that upfront, that's very helpful.

Debby Merritt:

And it sounds like in your type of practice, every case isn't the same in terms of number of hours and so forth, but it's relatively predictable what you'll be doing.

Michael Morguess:

Yeah. I'm able to at the outset, unless there's some huge surprise that I just didn't see coming, predict what is a fair price and how much I need to get to not be upside down in a case. I also do some typical litigation, maybe civil rights cases also for public employees. I've done a lot of First Amendment work and other constitutional issues for public employees, and I may take those on a contingency fee basis, but they have to be very good cases.

Debby Merritt:

You've told us a lot you enjoy about this work. What are some of the frustrations?

Michael Morguess:

I don't have the opportunity to put in new evidence. I don't get to improve the case. I'm stuck with whatever the attorney below did. That that's good and bad, but oftentimes it winds up being frustrating because my hands are tied. It can be pretty grueling sometimes if you have a lot of briefs due, it's like doing homework every day. I get a lot of writer's block. I may spend an hour staring at a blank screen just trying to get that first word down. One of the frustrations about being a solo practitioner, there are plenty of benefits.

But one of the well downsides, I don't know if I'd say it's a frustration, is I do miss the day-to-day atmosphere of being with other attorneys and collaborating and going somewhere, being in an office. So, that is something that I wouldn't say I grieve it, but I miss it.

Debby Merritt:

It's a downside. The upsides, I assume, are things like you can close the office when it's a good day to go to the beach, or if your son is doing something, you want to go watch a ballgame or something else.

Michael Morguess:

That's absolutely true. I make my own schedule. Most of the jobs I've had have been pretty flexible, and to me that's worth a lower salary.

Debby Merritt:

You mentioned earlier on that you had to learn how to give clients bad news, that that was something you didn't learn in law school. What are a few other things that you've learned to do over the years?

Michael Morguess:

Well, frankly, when I got out of law school and I got my first job and I was told that I had to bill a certain amount of hours, I had no idea what that meant. So I've learned how to be more efficient with my time because time is money in this business. I've learned how to talk to judges, how to size up a judge, how to say what I really want without exactly saying it.

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