Interlocutory appeal


Interlocutory appeal

An interlocutory appeal (or interim appeal), in the law of civil procedure, is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial. However, many jurisdictions make an exception for decisions that are particularly prejudicial to the rights of one of the parties. For example, if a party is asserting some form of immunity from suit, or is claiming that the court completely lacks personal jurisdiction over them, then it is recognized that being forced to wait for the conclusion of the trial would violate their right not to be subjected to a trial at all.

Federal courts

The Supreme Court of the United States delineated the test for the availability of interlocutory appeals, called the collateral order doctrine, for United States federal courts in the case of Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989), holding that under the relevant statute (28 U.S.C. § 1291) such an appeal would be permitted only if:

  1. the outcome of the case would be conclusively determined by the issue;
  2. the matter appealed was collateral to the merits; and
  3. the matter was effectively unreviewable if immediate appeal were not allowed.

The Supreme Court created the test in the case Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), where it was applied to a requirement of bond to be posted in certain stockholders derivative actions by plaintiffs, in anticipation of being liable for defendant's attorney's fees. Since the substantial deterrent effect of the statute would be meaningless if not enforceable at the outset of litigation, but did not touch on the merits of plaintiff's claim, the Court allowed interlocutory appeal from the trial court's decision. 337 U.S. at 546-47. The doctrine was restricted in Digital Equipment Corp. v. Desktop Direct Inc., 511 U.S. 863 (1994), which added an explicit importance criterion to the test for interlocutory appeals, holding that relief on a claim of immunity from suit because of a previous settlement agreement could not come through interlocutory appeal. The Supreme Court stated that the only matters of sufficient importance to merit a collateral appeal were "those originating in the Constitution or statutes". 511 U.S. at 879.

Several U.S. statutes directly confer the right to interlocutory appeals, including appeals from orders denying arbitration, 9 U.S.C. § 16, and some judicial actions against the debtor upon filing bankruptcy proceedings, 11 U.S.C. § 362(a). There is a major split in the United States courts of appeals as to whether a stay of proceedings should issue in the district court while interlocutory appeals on the arbitrability of disputes are decided. Compare Bradford-Scott Data Corp., Inc. v. Physician Computer Network, 128 F.3d 504 (7th Cir. 1997), and Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir. 1990). An interlocutory appeal under the collateral order doctrine usually merits a stay of proceedings while the appeal is being decided. Currently, the Second and Ninth Circuits have refused to stay proceedings in the district court while an arbitration issue is pending [See, Motorola Credit Corp. v. Uzan, 388, F.3d 39, 53-4 (2d Cir. 2004; Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990)]. The Seventh, Tenth and Eleventh Circuit courts conversely hold that a non-frivolous appeal warrants a stay of proceedings. See, Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d, 504, 506 (7th Cir. 1997); Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251-2 (11th Cir. 2004); McCauley et al. v. Halliburton Energy Services, Inc., 161 Fed. Appx. 760 (10th Cir. 2005).

State courts

In California, interlocutory appeals are usually sought by filing a petition for writ of mandate with the Court of Appeal. If granted, the writ directs the appropriate superior court to vacate a particular order. Writs of mandate are a discretionary remedy; such petitions are almost always denied due to the state's public policy of encouraging efficient litigation of civil actions on the merits in the superior courts.

In New York, various interlocutory appeals can be found under the Civil Practice Law and Rules section 5512. This section, along with a writ of mandamus are the only exceptions to filing an appeal only after the final judgment has been given.

In Louisiana, parties to both civil and criminal cases may apply for supervisory writs in one of the state's five geographic Circuit Courts of Appeal, seeking to review a ruling or order of the district court. As the name implies, the Court of Appeal's power to consider a writ application stems from its supervisory jurisdiction over the district courts. Such jurisdiction is discretionary, and thus the appellate court may issue an action granting or denying the writ, or may decline to consider the merits of an application altogether. In practice, taking writs is far more common in criminal matters and most often involves objections to a district court's pre-trial rulings on defense motions to suppress evidence, statements, or identifications. An application for supervisory writs is also the mechanism for seeking review of a district court's decision to grant or deny a petition for post-conviction relief. A party aggrieved by the Court of Appeal's ruling on a supervisory writ may then apply for supervisory writs in the Louisiana Supreme Court.


Wikimedia Foundation. 2010.

Look at other dictionaries:

  • interlocutory appeal — An appeal that occurs before the trial court s final ruling on an entire case. Category: Small Claims Court & Lawsuits Nolo’s Plain English Law Dictionary. Gerald N. Hill, Kathleen Thompson Hill. 2009. interlocutory appeal …   Law dictionary

  • Interlocutory — is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue. Thus, an… …   Wikipedia

  • interlocutory — in·ter·loc·u·to·ry /ˌin tər lä kyə ˌtōr ē/ adj [Medieval Latin interlocutorius, from Late Latin interloqui to pronounce an interlocutory sentence, from Latin, to speak between]: not final or definitive an interlocutory order; broadly: made or… …   Law dictionary

  • appeal — ap·peal 1 /ə pēl/ n [Old French apel, from apeler to call, accuse, appeal, from Latin appellare]: a proceeding in which a case is brought before a higher court for review of a lower court s judgment for the purpose of convincing the higher court… …   Law dictionary

  • interlocutory — /int3rl6k(y)3tgriy/ Provisional; interim; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy. An interlocutory order… …   Black's law dictionary

  • interlocutory — /int3rl6k(y)3tgriy/ Provisional; interim; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy. An interlocutory order… …   Black's law dictionary

  • Appeal — For other uses, see Appeal (disambiguation). An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court s decision. The District of… …   Wikipedia

  • appeal — Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or… …   Black's law dictionary

  • appeal — Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or… …   Black's law dictionary

  • interlocutory — adjective Date: 15th century made during the progress of a legal action and not final or definitive < an interlocutory appeal > < an interlocutory decree > …   New Collegiate Dictionary