Appeals Before a Final Judgment: Substantive and Procedural Strategies for Appealing “Final” Decisions

Description

Federal litigants normally must wait until the end of district court proceedings to bring an appeal. But some district court decisions are appealable on an interlocutory basis. And while such appeals can be challenging to obtain, they are an essential strategic tool for appellants to consider carefully. Whether an adjudication is final for appeal is subject to artful appellate advocacy. As Prof. Bryan Lammon has written in Finality, Appealability, and the Scope of Interlocutory Review (2018), federal courts "regularly elaborate on what it means for a decision to be 'final,' and those elaborations account for much of the current law."

Many statutory and case law exceptions authorize interlocutory appeals when a claim has not been finally resolved. Under 28 U.S.C. 1292(b), a party can seek review of an interlocutory order that features a controlling question of law where there is substantial ground for a difference of opinion, and where an immediate appeal may materially advance the ultimate termination of the litigation.

Similarly, under the collateral order doctrine, an appellate court will treat a prejudgment order as final if it conclusively resolves a critical issue independent of the merits, and the order is effectively unreviewable on appeal because of the irreversible effects of the decision. And even if there is no entitlement to an interlocutory appeal, counsel can still petition the court of appeal for a writ of mandamus.

Listen as our authoritative panel of appellate practitioners provides insights and discusses practical strategies and approaches to interlocutory appeals--including differences between jurisdictions--that counsel should leverage to maintain their clients' favorable outcomes in the trial court and potentially obtain even more significant relief.