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April 2, 2015 by Bruce D. GreenbergDownload PDF

Categories: Appellate Law

I Want to Appeal That Terrible Decision Right Away. Can I?Bruce D. Greenberg

When a judge makes a bad decision, whether on a motion or at trial, a disappointed party’s first reaction is “Appeal at once!” But there are special rules about how quickly an appeal can be brought, and it’s important to know when an immediate appeal is or is not allowed.  The rules about appealability differ between state and federal courts.

In state court, the general rule is that a party has a right to appeal immediately only from a “final judgment.” A final judgment is one that resolves all issues as to all parties. As a result, there is no right to an immediate appeal of, for example, decisions regarding discovery, denying a motion for summary judgment, or granting summary judgment as to fewer than all parties or on fewer than all claims. A party can file a motion with the Appellate Division seeking permission to appeal (also known as “leave to appeal” or an “interlocutory appeal”), but the Appellate Division has the right to refuse an immediate appeal. 

Leave to appeal is granted only when the appellate court believes that it would be “in the interest of justice” to allow an immediate appeal. In general, our courts frown on piecemeal appeals. They prefer to have a single appeal at the end of the case that raises all issues at once. That policy also recognizes that most cases settle, so that issues that might have been appealed early in the case will disappear as a result of settlement, making an appeal unnecessary.

There are exceptions to the rule that only final judgments can be appealed immediately in state court. There is a Court Rule that lists a number of these exceptions. They include orders granting or denying a motion to file a late notice of tort claim, orders granting or denying a motion to compel arbitration, orders appointing a statutory or liquidating receiver, and certain orders in family or adoption cases. 

In short, it is not always crystal clear whether an immediate appeal can be filed in state court. The same is true in federal court, though the wrinkles are somewhat different there.

Federal courts abide by a general rule that is similar to that of state courts: immediate appeals are permitted only from “final decisions.” A “final decision” is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” But as in state court, there are exceptions. One of the most significant exceptions is the “collateral order doctrine.”    

The collateral order doctrine encompasses a “small class” of decisions that (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely separate from the merits of the action," and (3) are “effectively unreviewable … [after] final judgment.” Among the types of decisions that are immediately appealable as collateral orders are denials of reductions in bail, denials of motions to dismiss or for summary judgment based on qualified immunity for public officials, and orders granting a stay of proceedings. Just as state court parties need to consult the New Jersey Court Rule referred to above to see whether it contains an exception for a particular type of ruling, it is necessary for a party seeking to appeal immediately in federal court to determine whether the collateral order doctrine, though limited, might cover the ruling as to which an appeal is desired.

Federal procedure also allows interlocutory appeals in certain circumstances. One important mechanism for such appeals is “section 1292(b) certification.”  Section 1292(b) certification refers to a procedure authorized by a provision of the United States Code that allows a party to appeal if (1) the trial judge from whom appeal is sought finds that the ruling in question “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may material advance the ultimate termination of the litigation,” and (2) the Court of Appeals, in its discretion, permits an appeal. It is relatively rare that both the trial judge who made a decision and the Court of Appeals that is asked to review it will agree to allow that to happen. But it does occur in certain cases.

This discussion has only begun to touch on the issue of when a decision can be appealed immediately. Proper analysis of the question is necessary in every case, since the issue of appealability is often very fact-sensitive.