Key Takeaways:

  • Interlocutory appeals occur before final judgments and are only permitted in specific circumstances.
  • Timing is crucial—petitions must be filed within a limited window, often within 10-30 days, depending on jurisdiction.
  • These appeals can significantly delay cases, as appellate courts may take months or even years to issue a ruling.
  • Not all issues qualify for interlocutory appeal—only those causing irreparable harm or impacting fundamental legal rights.
  • Federal courts follow strict criteria under 28 U.S.C. § 1292 for allowing interlocutory appeals.
  • State courts have varying rules on when interlocutory appeals are allowed and how they are processed.
  • Most interlocutory appeals are denied, as appellate courts prefer resolving issues after the trial concludes.

Interlocutory appeal occurs before the final answer from a trial court. If a judge enters orders you cannot accept, you can petition the appellate court within a month. You would normally get a response, but this depends on the jurisdiction, and your answer would be due 20 days after. You would then usually wait for months. If you feel that a case should not move forward, you may ask for a “stay” to halt the proceedings until an appellate court decides on an issue. If a judge refuses, you can mention the issue in your appeal and inquire the court to stop all proceedings.

Interlocutory appeals can stop cases in their tracks if a court chooses to take the issue up. In a so-called plenary appeals process, a final judgement in a case takes place, and a jury or judge issues a ruling against you. To get a judgement revised, you need to submit an appeal notice to the court in 10 to 20 days, but this would depend on the jurisdiction. During the next one or two months, you would direct a clerk of the court to issue the record pertaining to your case to an appellate court.

How to File an Appeal

Regarding post-judgment appeal cases, you can submit an appellate motion when an appeals court has stated that it must be submitted usually two months after your appeal notice is filed. An opponent in a case also has roughly 20 days to submit a response motion. Your reply to such a response would be due 20 days after. Further, the timelines would depend on your location. It should be noted that a response could take months or years for an appellate court to decide on a case.

The appellate brief you file details how a trial court missed the mark. A standard review of an appeals court is based on if you think a judge was not correct in interpreting the law, or is generally wrong regarding the facts. After assigning error to a judge’s order regarding the question of law, the standard falls in the new, and an appeals court does not show deference to the judge. When assigning an error regarding a question of fact, you’re stating that a judge’s ruling is wrong in the follow ways:

  1. Lacking vital evidence
  2. Clearly erroneous ruling
  3. Capricious or arbitrary

Regardless of the standard, an appeals court assumes that a ruling is inherently correct, so your goal is to break through such a presumption. The appeals court affirms a judgment if it is harmful and incorrect. Interlocutory appeals are also called interim appeals, and are also rare in the federal and state court systems, but they are pertinent in resolving cases. It should be noted that an appellate judge hates to overturn cases after a trial has ended because a trial judge heard all testimony and evidence involved in a case, and would be better qualified to render an appropriate verdict. Therefore, obtaining a verdict in your favor can be very difficult.

Interlocutory Appeals in Federal and State Courts

The process for filing an interlocutory appeal varies between federal and state courts. In federal courts, interlocutory appeals are governed by 28 U.S.C. § 1292, which allows appeals in cases involving:

  • Injunctions (granting or denying)
  • Orders that may determine the outcome of a case
  • Cases certified by the trial court as presenting "a controlling question of law with substantial grounds for disagreement"

For state courts, interlocutory appeal procedures differ significantly. Some states follow a certification process similar to the federal system, while others allow appeals only in cases involving irreparable harm. In most cases, the party seeking appeal must request permission from either the trial court or the appellate court before proceeding.

In criminal cases, interlocutory appeals are more restricted, often allowed only for constitutional violations or jurisdictional challenges.

Appeal Barriers

In general, federal and state courts frown upon interlocutory appeals due to the preference to resolve cases in a suitable manner before the appeal takes place. In some situations, single or multiple parties may suffer irreparable damage if an issue does not get appealed during the pendency of a case in court, interlocutory appeals may be granted. The standard in bestowing interlocutory appeals includes that obtaining the judgment overturned during plenary appeal will not fix an issue, or plenary appeal could be unavailable due to the harm caused by an order may not be possible to demonstrate.

For example, a judge has submitted a discovery order to force production of the trade secret of a business. Once such records are disclosed, it cannot be undone. Moreover, no decision from an appellate court can reverse any damage.

When judges issue protective orders that forbid the discovery of material witnesses, the damage was caused by going to trial without a witness and cannot be demonstrated on plenary appeal since no one knows for certain that witnesses could have testified. Another example is when an attorney on the opposite side has been involved in your past cases, but a judge refuses to render that lawyer disqualified. Also, such an instance could occur if a judge has demonstrated malice against your case and does not recuse him or herself.

Grounds for Granting an Interlocutory Appeal

Courts typically approve interlocutory appeals under strict conditions. The key reasons include:

  1. Irreparable Harm – If proceeding with the case would cause damage that cannot be undone (e.g., disclosure of privileged information).
  2. Controlling Question of Law – When a case presents a significant legal issue with no clear precedent.
  3. Judicial Economy – If resolving a legal issue early can prevent a retrial or significantly shorten litigation.

Even when an appeal meets these criteria, appellate courts exercise discretion in deciding whether to hear the case. Many petitions for interlocutory appeal are denied unless the appellant demonstrates that waiting until the final judgment would cause unjust consequences.

Consequences of an Interlocutory Appeal

While an interlocutory appeal may be necessary in some cases, it can also have major consequences for litigation:

  • Delays in proceedings – Cases can be stalled for months or years while the appeal is reviewed.
  • Increased legal costs – Filing an appeal requires additional briefs, motions, and hearings.
  • Judicial hesitancy – Courts are reluctant to hear interlocutory appeals unless the issue is critical.
  • Limited chances of success – Appellate courts presume trial court decisions are correct, making reversals rare.

For these reasons, attorneys often strategize carefully before filing an interlocutory appeal, ensuring that it meets the necessary legal standards and aligns with long-term case objectives.

Frequently Asked Questions

  1. What is an interlocutory appeal?
    An interlocutory appeal is an appeal filed before the trial court reaches a final judgment, typically for urgent legal issues that could cause irreparable harm if not addressed immediately.
  2. When can you file an interlocutory appeal?
    Interlocutory appeals are allowed in limited circumstances, such as cases involving injunctions, significant legal questions, or issues causing irreversible harm.
  3. How long does an interlocutory appeal take?
    The timeframe varies but can take several months to over a year, depending on the complexity of the issue and the court’s backlog.
  4. Are interlocutory appeals commonly granted?
    No, most interlocutory appeals are denied since appellate courts prefer to review cases only after a final judgment is issued.
  5. Can an interlocutory appeal stop a trial?
    Yes, if a stay is granted, the trial may be paused until the appeal is resolved. However, courts do not automatically grant stays, and petitioners must demonstrate significant justification.

To learn more about an interlocutory appeal, you can post your job on UpCounsel’s website. UpCounsel’s lawyers will give you the best advice on the appeals process and the best ways you can win your case. In addition, they will vigorously defend your case in court, so you don’t have to fight alone.