What is an Interlocutory Appeal?
It’s easier to win a case at trial than to overturn an adverse judgment on appeal, but an interlocutory appeal is sometimes needed to win at trial. That’s an appellate procedure asking a higher court to reverse a judge’s ruling in the middle of a case. It can stop a case in its tracks if the appellate court takes it up.
How Does the Process Work?
You may be familiar with regular (so-called “plenary”) appeals. There’s a final judgment in your case and the judge or jury has ruled against you.
To get the judgment reversed, you file a notice of appeal in the trial court in 10-20 days (depending on your jurisdiction). Over the next month or two, you direct the clerk of court to send the full record of your case — every document filed — to the appellate court.
Notice of Appeal
On post-judgment appeals, you file an appellate brief when the appeals court says it’s due, usually a couple months after your Notice of Appeal is filed. Your opponent has 20 days or so to file a response brief. Your reply to that response is due like 20 days thereafter (again, timelines depend on where you are). Then you wait months or even years for the appellate court to decide the case.
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Your appellate brief describes how the trial court got it wrong. The standard of review for the appeals court depends on whether you think the judge was wrong on the law or wrong on the facts. When you “assign error” to a judge’s order on a question of law, the standard is de novo (or anew), and the appeals court shows no deference to your judge. When you assign error on a question of fact, you’re arguing that the judge’s finding is (a) arbitrary or capricious, (b) lacking substantial evidence, or (c) clearly erroneous. No matter the standard, the appeals court presumes a fact finding is correct, so you’ll need to overcome that presumption.
In any case, the appeals court will affirm a judgment unless it’s both incorrect and harmful.
How an Interlocutory Appeal Differs
An interlocutory appeal is different. You don’t wait until the ink dries on a judgment. When a judge enters an order you can’t live with, you file a petition in the appellate court within 30 days. You attach an appendix that includes the offending order and only those parts of the record you feel are necessary to your argument. (Make sure everything you attach has already been filed in the trial court, or it won’t be considered.) Depending on the jurisdiction, your opponent’s response is due in 20 days, and your reply to that response is due 20 days thereafter. Then you wait, often for months.
If you feel the case should not proceed until this order is reversed, ask the trial court to “stay” (or stop) the proceedings until the appellate court decides the issue. If your judge refuses, add the issue to your appeal and ask the appellate court to stay all proceedings in the trial court.
Appellate judges hate to get in the middle of a case. They hate to overturn trial courts even when the case has ended. The reason is that trial judges actually hear the testimony and arguments in a case, and they are better suited than appellate judges to evaluate the facts and the credibility of the parties. So getting an appeals court to reverse a decision during a case is extremely difficult.
How Likely is it an Interlocutory Appeal Passes?
The standard is very high: the order must be so wrong on either the facts or the law that irreparable harm will result. That is, your case will be damaged terribly if the order stands. In addition, getting the judgment overturned on plenary appeal won’t fix the problem, or plenary appeal may be unavailable because the harm caused by the order may be impossible to demonstrate.
The threshold for an interlocutory appeal is high, but it’s not insurmountable. For example, suppose the judge has issued a discovery order that compels production of a company’s trade secrets. Once those records are disclosed, they can’t be undisclosed. The genie is out of the bottle, and no decision of an appellate court can repair the damage. (Companies have sued their competitors solely to get their trade secrets revealed in discovery.)
Likewise, when a judge issues a protective order that bars discovery of a material witness, the harm caused by going to trial without that witness can’t be shown on plenary appeal, because no one knows for sure how the witness may have testified.
There are many other examples where an interlocutory appeal is justified. Say a lawyer on the other side has represented you in the past, but the judge refuses to disqualify that lawyer. Or when the judge has shown bias against you but refuses to recuse himself.
Decisions like these are where cases are won and lost. So when it’s that important, don’t wait for the final judgment to appeal.
What Happens if you Lose in an Interlocutory Appeal?
But what happens if you lose? Nothing, really. Your case continues in the trial court as though you’d never appealed. Maybe the judge is a little pissed, but he or she may also be more respectful or careful in their rulings. On the other hand, credibility is your best weapon in court, and you don’t want to throw it away on a frivolous appeal. Win or lose, make sure you have a basis for seeking review at the appellate court.
Have you filed an interlocutory appeal? How did you fare? Share in the comments below!
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