What is an Interlocutory Appeal?
As general rule, an appeal may not be pursued until a final outcome at trial is reached. The narrow exception to the general rule is an interlocutory appeal. An interlocutory appeal is a request for immediate appeal of an interim or temporary order to prevent an injustice.
To qualify for interlocutory appeal the court's decision must:
- Not be a final order;
- Interfere with a litigant's rights in a way that cannot be remedied on appeal from the final judgment;
- Involve issues collateral to any remaining controversy; and,
- Have no other adequate alternative remedy.
In order to pursue an interlocutory appeal there must be a substantial reason why adequate review of the interim or temporary order cannot be obtained after a final decision is reached. Orders involving a preliminary injunction are more often appropriate for interlocutory review. Merely causing a party to be subjected to the delay and expense inherent in further litigation is not sufficient cause.
An interlocutory appeal is not an opportunity to second guess the discretion of the judge who issued the interim or temporary order. Examples of discretionary decisions that are rarely appropriate for interlocutory appeal include: setting trial dates, adjudicating requests for continuances, and setting discovery schedules.
Seeking an Interlocutory Appeal
Many interlocutory appeals are properly filed in the MA Appeals Court. However, all criminal and any civil interlocutory appeals not accepted by the Appeals Court are filed in the MA Supreme Judicial Court. For further information please visit:
- Interlocutory appeals in the MA Appeals Court; and,
- Interlocutory appeals in the MA Supreme Judicial Court (the MA SJC).
Seeking an interlocutory appeal requires the filing of:
- A petition, memorandum, and record appendix;
- Any subsequently filed opposition and supplemental record appendix
- A certificate of service on all other parties in the case, including the service and filing of a copy in the appropriate lower court; and,
- Payment of the filing fee ($315 as of 2012).
The petition for interlocutory appeal must be filed within thirty days of the date of docket entry of the trial court's order. No extensions or late filings are permitted! A motion for reconsideration does not enlarge the time for filing. Furthermore, a denied motion for reconsideration is not subject to interlocutory appeal unless the motion is substantially new or newly supported.
The party opposing the interlocutory appeal will have only seven days (if served in-hand) or ten days (if served by mail) from the date of service of the petition to file an opposition.
The potential for success on an interlocutory appeal can often be gauged before the petition is filed. Seeking competent appellate level guidance before pursuing an interlocutory appeal can save time, money, and stress. That is why Appeals Attorney William Driscoll offers a free telephone consultation to discuss the merits of challenging or defending an interlocutory appeal.