Might An Interlocutory Appeal Be In The Cards?

During the course of litigation, unfavorable interlocutory court rulings (i.e. rulings that are not final for purposes of an immediate appeal) may be temporary hiccups in the preparation of a party’s case or may threaten a party’s overall litigation strategy and chance of ultimate success. Until final resolution of all parties and issues, there may be nothing a party can do about those unfavorable rulings. In some instances, however, a party may have success with interlocutory appellate review of a court ruling. Not all unfavorable rulings can or should be considered for interlocutory review, but here are some factors to consider when deciding whether one can or should seek such review.

Perhaps the most obvious consideration is whether an interlocutory appeal of the ruling is permissible as of right. While some states permit interlocutory appeals in only the most limited of circumstances, other states and the federal courts allows them in more expansive and often well-defined ways. For example, the Illinois Supreme Court Rules provide for three categories of interlocutory appeals: those by permission of the appellate court, those as of right, and those upon certified question of the trial court. See Illinois Supreme Court Rules 306, 307 and 308. It may be, therefore, that your particular adverse ruling is one which falls into an “as of right” category and is worth a closer look on that basis alone.

Alternatively, an adverse ruling may fall into a permissive category which the appellate court may, for a number of reasons, believe merits closer look on an interlocutory basis. Using Illinois again as an example, interlocutory appeals by permission in that state include, among other things, orders granting a new trial, orders allowing or denying a motion to dismiss on the grounds of forum non conveniens, orders denying a motion to dismiss on the basis of lack of personal jurisdiction, and orders granting a motion to disqualify the attorney for any party. Illinois Supreme Court Rule 306.

Even if the adverse ruling does not fall into an “as of right” category or a recognized “permissive” category, interlocutory review on a purely discretionary basis may still be possible. It is useful if the issue is one which is of importance to not only the parties to the current litigation, but one which has general interest and importance to other litigants. It also may be useful if the ruling is one which, though interlocutory, may affect the future course of the litigation in a way that speeds its resolution. For example, rulings regarding venue or assertions that the trial court is acting in gross excess of its jurisdiction may, under the right factual circumstances, be attractive for interlocutory review. Cited factors for such discretionary review often include whether the ruling is one of first impression, whether irreparable harm to a party may result if interlocutory review is not allowed, and whether the trial court’s abuse of discretion is alleged to be particularly egregious. There may also be circumstances where the interlocutory order turns on a question of law where there is substantial ground for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b).

Although review of non-final orders is rare, it is not impossible. This extraordinary relief may be available in some cases where review might not otherwise be available until entry of a final judgment. The place to start is with an examination of your jurisdiction’s laws as to interlocutory review, the facts of your particular case, and then with an assessment of whether pursuing interlocutory review will benefit your overall litigation strategy. Appellate counsel also may be of assistance in the determination of whether a particular case may benefit from seeking interlocutory review.