By Debbie Leonard, Partner and Jeff Silvestri, Partner, McDonald Carano
It happens more than we’d like. You’re in the midst of contentious litigation and the judge issues a “bad” ruling. Most times, you just lick your wounds and press on. Some rulings, however, can throw your case into a tailspin, derail your trial strategy or, worse, dismiss your claims entirely while allowing other parties to proceed. Can you appeal that ruling right away to get the case back on track?
The short answer is generally “no.” By rule or statute, only select types of decisions are appealable, and for the most part, appeals from interlocutory – or midstream – rulings are prohibited. However, there are exceptions: for example, preliminary injunctions; orders regarding trial location; and orders denying a motion to compel arbitration are all immediately appealable. But overall, because appellate courts have limited jurisdiction and want to avoid piecemeal review, a litigant must wait to appeal until after final judgment is entered.
Here are two specific procedural tools to obtain appellate review before final judgment.
Certify a Final judgment as to Certain Parties
Rule 54(b) certification allows for immediate appeal of an order that disposes of all claims and defenses of one or more parties in a multi-party action. To obtain this relief, the aggrieved party must ask the court to make an express finding that there is no just reason for delay. The court must then enter final judgment as to the party or parties who seek the interlocutory judgment, which can be appealed.
Beware though; if the certified order’s subject matter is sufficiently interrelated with the claims that remain to be decided, a Rule 54 certification may not stand. The question is whether the prejudice to the eliminated party from having to delay appeal until the district court resolves the entire case would be greater than the prejudice to the parties remaining in the case. The district court has discretion to make that determination.
Seek a Writ of Mandamus or Prohibition
A petition for writ of mandamus or prohibition invokes the original (as opposed to the appellate) jurisdiction of the appellate court. A writ of mandamus compels the district court to follow the law or controls an arbitrary or capricious exercise of discretion. A writ of prohibition stops the district court from acting either without, or in excess of, its jurisdiction.
These are extraordinary remedies that are only available if there is no plain, speedy, and adequate remedy in the ordinary course of law. The appellate courts have complete discretion to consider writ petitions and do not do grant them very often, particularly where the writ would only partially resolve the underlying action and the issue can be reviewed on appeal from a final judgment. However, when there is special urgency or strong necessity; the facts are well developed and undisputed; only important legal question(s) of statewide importance are presented; or there are conflicting lower court decisions, an appellate court is more likely to consider a writ petition.
The Bottom Line
Are these tools worth employing? The answer usually comes down to time, cost and novelty of the issue presented. Seeking writ relief or Rule 54(b) certification can often become an expensive procedural side show that distracts litigants, lawyers, and the court from the merits of the underlying dispute and burns up large portions of a litigation budget. Also, appellate review can often take years. Anyone thinking of asking an appellate court to intercede in ongoing litigation should seriously consider whether they want to go through the appellate process more than once.
But where you need an important legal question answered or will be irreparably hamstrung by the trial court’s erroneous ruling, immediate appellate relief makes good sense. It’s a case-specific inquiry that litigants and lawyers should evaluate when the stakes warrant it.