05 Aug The Nuts and Bolts of an Interlocutory Appeal

In our last few blogs Edwards Law discussed whether you should appeal, how to write a good appellate brief, and whether it makes sense to appeal before your case is over.  This week we jump into the nuts and bolts of an interlocutory appeal—when to seek one, when to file one and how to file it.

The Nuts and Bolts of an Interlocutory Appeal–When Do you Seek an Interlocutory Appeal?

As stated in our prior blog, Rule 4.2 allows the Colorado Court of Appeals to decide your 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.  If you and your attorney determine that you have a great case for an interlocutory appeal, you will need to move quickly and carefully in order to preserve your right to bring an interlocutory appeal under C.A.R. 4.2.  The first step is determining whether your opponent will agree to your appeal, or whether your opponent will fight your appeal.  If your opponent agrees with your appeal, then all you would need to do is sign a stipulation with your opponent and file it with the court within 14 days after the date of the order to be appealed.  This deadline is “jurisdictional”, which means if you miss the deadline you are out of luck because it is super difficult to extend that deadline.  If a stay of the trial court proceedings is also needed, be sure to request this in the stipulation (or motion to certify with the trial court, see below).

If your opponent will not stipulate to your appeal, you must “move for certification” (i.e file a motion with the state court) and ask the trial court judge for permission to file an interlocutory appeal.  Keep in mind that if you file a stipulation, the trial court judge must approve certification of your appeal; however, if you have to motion the court for permission to appeal, the trial court has discretion and could deny your request to certify an interlocutory appeal.  If the trial court judge denies your motion for certification—game over.  A motion for 4.2 certification is not appealable.  However if necessary you could always bring your appeal at the end of the case.  At the end of the case, you have a right to appeal, and neither the trial court nor the Colorado Court of Appeals can deny you that right.

The Nuts and Bolts of an Interlocutory Appeal–When Do you File an Interlocutory Appeal?

If you obtain a stipulation to file your interlocutory appeal or your motion to certify is granted, the next deadline is the deadline to file your petition.  Once your appeal is “certified”, you have only 14 days to file your petition and to pay the filing fee, which is currently $229.00.  While your ability to seek an extension of time to file the petition may be a little better, don’t count on it because, remember, it is within the appellate court’s discretion to even hear your interlocutory appeal, let alone grant you an extension on it.

The Nuts and Bolts of an Interlocutory Appeal—How Do you Draft an Interlocutory Appeal?

Drafting a 4.2 petition is really the nuts and bolts of an interlocutory appeal.  As stated in our prior blog, not all cases present a “controlling and unresolved” question of law, and this is something you need to flesh out with your attorney before you try to file an interlocutory appeal.  But if you determine your appeal concerns a controlling and unresolved question of law, the next step is drafting the petition.  Your petition should follow the same rules for a typical appellate brief, including 14-point font, double-spaced text and should not exceed 30 pages unless it contains no more than 9,500 words.  As for content, your petition must include (1) the identities of all parties and their case status; (2) the order being appealed; (3) the reasons why immediate review may promote a more orderly disposition or establish a final disposition of your litigation; (4) why the order involves a “controlling and unresolved” question of law; (5) the issues presented; (6) key facts; (7) your legal argument and supporting law explaining why the petition should be granted and why the relief requested should be granted; and (8) a list of supporting documents, or an explanation of why supporting documents are not available.

If the appellate court grants the petition, your opponent will then have a chance to file an answer brief and you will have a chance to file a reply.  If the Colorado Court of Appeals denies the appeal, you can request an original proceeding with the Colorado Supreme Court under C.A.R. 21.  Certiorari review is also available if the court of appeals grants your interlocutory appeal but renders an unfavorable decision on the merits.  Alternatively, you could petition for rehearing in the court of appeals.

Call Edwards Law today if you are considering an interlocutory appeal and you have questions about the nuts and bolts of an interlocutory appeal.  Edwards Law has experience in filing appeals, and can help you determine whether you have a controlling, unresolved question of law appropriate for interlocutory appeal.  The first call is free so you have nothing to lose.