Hello friends!

The last two editions of Boom! Lawyered have been complicated (levels of judicial scrutiny) and infuriating (immigration bonds.) So this week, we thought we’d give you a respite from being irritated and/or confused and talk about what a “stay” is. It should be relatively painless.

You’ve probably heard the term “stay” before, if you’re a Lisa Loeb enthusiast who fancies a nice pair of tortoiseshell glasses and angst circa 1994. You’ve probably even heard the term in a legal context, especially if you’ve ever watched a movie where a harried death penalty lawyer is trying to find that juicy piece of new evidence that could exonerate her client, so she can call the governor’s office and demand a stay of execution.

A stay means “to pause” or “to suspend.” It doesn’t end the proceedings; it just puts them on hold for a while. In other words, a stay of execution doesn’t mean that the execution will never take place, it just means that the execution won’t take place right now.

In simple terms, a stay pauses or suspends legal proceedings.

A stay comes up in primarily two circumstances. The first is when a party to a lawsuit has been ordered to turn over information to the other side as part of the discovery process, and that party is trying to avoid doing so. The party trying to avoid discovery will file a motion for a “discovery stay.” (When you file a motion, it means you’re asking the court to do something. In this case, you’re asking the court to issue a discovery stay.)

Discovery stays are quite common. Discovery, which is the process during litigation which requires each side to turn over information relevant to the lawsuit, can be very expensive. You have to pay for court reporters, videographers, and of course the time it takes for attorneys to battle in court about which side is entitled to what discovery. It’s a long and arduous process. Oftentimes, parties to a lawsuit would rather avoid that expense, especially if they think they can negotiate a quick settlement. The parties can agree to stay discovery while settlement negotiations are taking place. Usually, however, the plaintiff will want to begin gathering evidence from the defendant, and it is therefore defendants who often seek a stay of discovery while they try to get the lawsuit dismissed.

As soon as a complaint is filed, discovery proceedings can begin. In response to a complaint, a defendant will generally file a motion to dismiss it and an accompanying motion to stay discovery. In other words, after the defendant gets word that they are being sued, they will ask the court to dismiss the complaint and to pause discovery proceedings. Whether the court agrees to pause discovery is completely within the court’s discretion. There are no hard-and-fast rules, although some courts will automatically stay discovery once a motion to dismiss is filed. (If a court does grant a stay but doesn’t dismiss the case, it will lift the stay.) This article by University of Denver Sturm College of Law Professor Kevin Lynch is worth reading for its discussion of some pitfalls of staying discovery pending a motion to dismiss, and whether doing so is even fair.

The second primary circumstance for a stay is when the losing party wants to forestall the consequences of their loss while they appeal to a higher court for a reversal. The losing party will file a motion for a “stay pending appeal,” an order that temporarily suspends the lower court’s judgment while the losing party appeals the judgment.

Let’s discuss a real-life example to explain the point.

In 2013, Texas passed HB 2, one of the most regressive anti-choice laws in the country. One provision of that law requires that abortion clinics meet the standards that apply to ambulatory surgical centers (ASC). That requirement would force dozens of abortion clinics to close their doors because they couldn’t afford the millions of dollars that it would take to retrofit their clinics. Another provision requires doctors to obtain admitting privileges at a local hospital. A clinic in Texas called Whole Woman’s Health, along with other abortion providers, sued the State of Texas and challenged these provisions of the law.

The district court in Whole Woman’s Health v. Hellerstedt ruled that both the ASC and admitting privileges requirements were unconstitutional and blocked those provisions from going into effect.

The State of Texas appealed the ruling to the Fifth Circuit Court of Appeals and requested a stay pending appeal. The Fifth Circuit stayed the district court’s ruling (which had blocked the law), thus allowing the law to take effect while the Fifth Circuit considered Texas’s appeal.

Ultimately, the Fifth Circuit ruled in favor of Texas, thus prompting Whole Woman’s Health to appeal to the Supreme Court, where the case awaits a decision from the eight remaining justices. The Supreme Court vacated the stay the Fifth Circuit issued, which means the law is blocked right now while we wait for a decision.

Whether a court grants a stay pending appeal is, again, entirely within the court’s discretion. The Supreme Court has listed some factors that courts should consider: (1) whether the stay applicant has made a strong showing that she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuing the stay will actually injure the other parties interested in the proceedings; and (4) where the public interest lies.

If you’ve been reading each edition of Boom! Lawyered, you might be thinking to yourself, “Hey! That’s similar to what a court will consider when figuring out whether to issue an injunction.”

If you thought that, you’ve made me very proud. It means you’re learning. *wipes single solitary tear*

(If you’re a patent lawyer who happens to be reading this and you’re thinking to yourself, “When are they going to talk about a stay pending re-examination of a patent?” or if you’re a bankruptcy lawyer wondering when we’re going to talk about automatic stays in bankruptcy proceedings, you’re going to be waiting for a while. We’re keeping this simple for people who aren’t worrying about patent and bankruptcy law. Don’t be so smug about how you know about stays. See, this is why people don’t like lawyers. We are so smug sometimes. Gosh!)

At any rate, that’s all for today! You now know what it means when you read in the news that a court has stayed proceedings pending appeal or has issued a discovery stay.

And knowing is half the battle.