30 Jul Filing an Interlocutory Appeal Under C.A.R. 4.2 – A Special Kind of Appeal

In our last couple of blogs Edwards Law discussed whether you should appeal and the makings of a great appellate brief.  This week, we discuss a very narrow type of appeal—interlocutory appeals under C.A.R. 4.2 and whether you have a case that is appropriate for such an appeal.

What Is an Interlocutory Appeal?

C.A.R. 4.2 is modeled after federal statute 28 U.S.C. § 1292(b), which allows for “interlocutory” appeals when a case presents a controlling question of law in federal court.  C.A.R. 4.2 took effect in 2011, and provides a procedure by which a litigant in a pending lawsuit can petition to the Colorado Court of Appeals to decide an important question of law while his or her case is pending in the state court.   This is very helpful if you have an important question of law that the trial court has ruled on against you.   Rule 4.2 allows the Court of Appeals to decide the controlling legal question before you and your attorney invest huge amounts of time and money obtaining a trial verdict and appealing that verdict with the Court of Appeals.

How Do You Know If You Have the Right Case for an Interlocutory Appeal?

Not all cases present an important question of law for purposes of an interlocutory appeal.  Your important question of law is only appealable under C.A.R. 4.2 if it is “controlling” and “unresolved”.

Unresolved Question of Law

“Unresolved” means a question of law that has not been decided by the Colorado Supreme Court or determined by the Colorado Court of Appeals, or a question of federal law which has not been decided by the United States Supreme Court.  This is a fairly uncomplicated determination if your attorney has conducted the proper research to confirm the lack of case law.

Controlling Question of Law

The harder question will be whether the question of law is controlling because C.A.R. 4.2 does not give you a clear definition of “controlling”.  The Court of Appeals has stated that the definition of “controlling” will depend on the particular order you are trying to appeal, and the “nature and circumstances” of that order.  A good example of a “controlling” question of law is how a statute of limitations should be interpreted, because how it is interpreted could mean the difference between whether your opponent still has the right to sue you or whether his case against you is time-barred and must be dismissed by the trial court.

Another example of where there is a controlling issue of law present for purposes of interlocutory appeal is if you are claiming that the parties must arbitrate and not litigate in state court.  If you are right, then the case in state court would go away if an interlocutory appeal was made in your favor.

Does It Make Financial and Strategic Sense 

But even if you have the right case for an interlocutory appeal, you and your attorney must then decide whether an interlocutory appeal makes financial and strategic sense for your case.  An interlocutory appeal is not beneficial for every case, as they can cause delays, will require you to obtain expensive appellate counsel and may impede settlement discussions with your opponent.  It may make more sense to wait until the end of your case to appeal the issue of law, which Rule 4.2 allows you to do.

If you are on the fence about whether you should bring an interlocutory appeal, call Edwards Law today for a complimentary consultation.  Edwards Law has experience in handling interlocutory appeals, and we could help you determine whether you have a controlling, unresolved question of law appropriate for interlocutory appeal and if so whether it makes practical sense in your case to file an interlocutory appeal.