Interlocutory Appeal (Complete Overview: All You Need To Know)

What is interlocutory appeal?

How do you legally define it?

What are the important elements that you must know!

Keep reading as we have gathered exactly the information that you need!

Let’s dig into our civil procedure knowledge!

Are you ready?

Let’s get started!

Understanding interlocutory appeals

The term “interlocutory” comes from the Latin term “interrupt”.

An interlocutory appeal (also known as an interim appeal) happens when a decision of the court rendered during the proceedings (and not ending the proceedings) is appealed in accordance with applicable rules of civil procedure.

For a party to appeal a decision or ruling of the court on an interim basis, it must follow the state and federal court rules as applicable.

A judgment is considered an interlocutory judgment when it is rendered before all the legal issues in dispute are resolved by the court via a final judgment on the merits.

As a result, an interlocutory appeal is when a judgment is appealed before the lawsuit or legal matter has achieved finality.

The law permits that the relevant trial court and the court of appeal exercise their discretion to allow or not an interlocutory appeal in accordance with 28 U.S.C. § 1292(b) and FRAP 5.

If both state courts and appeal courts agree to authorize the appeal, the interim judgment’s appeal can be pursued.

The fact that the litigant must successfully convince both the trial court and court of appeal to authorize the appeal, it turns out that it is very difficult to succeed in such claims.

Interlocutory appeal definition

How do you define interlocutory appeal?

According to Cornell Law School’s Legal Information Institute, an interlocutory appeal is defined as:

Appeal from an interlocutory order

In other words, the appeal of an interim judgment (rendered during the legal proceedings but without putting an end to the proceedings) will be considered an interlocutory appeal.

Interlocutory appeal test

What are the requirements to appeal an interlocutory judgment?

Interlocutory appeals are rare and must strictly follow the court rules of procedure and the applicable laws of civil procedure.

To determine whether an interlocutory judgment can be appealed, the trial courts will apply a three-part test:

  • The interim judgment must have dealt with a particular issue
  • That issue must have been completely resolved independent of the lawsuit on its merits
  • The interim judgment must be unreviewable on appeal from a final judgment 

The trial court has total discretion in granting a party a certification that the interlocutory order can be appealed.

If the trial court certifies the appeal, then the next step is to get permission from the court of appeals.

Court of appeal permission 

How can you get the court of appeal’s permission to reverse an interlocutory judgment?

The court of appeal may grant permission to appeal based on the Federal Rules of Civil Procedure or FRCP.

To successfully file a petition before the appellate court, the petitioner must demonstrate that:

  • Provide all the relevant facts relevant issues for the court to understand the nature of the issue and relief sought
  • Provide arguments as to why the court of appeal should authorize the appeal 
  • Provide a copy of the interlocutory judgment
  • Provide a copy of the trial judge’s certification 

Finality rule

What is the “finality rule” and how important is it with regards to the interlocutory appeal process?

It’s important to keep in mind that appeal courts are not happy to get involved in lawsuits pending before a trial court.

Appeals take time, cost money, can lead to the suspension of the lower court proceedings and may be used abusively by litigants in the context of their litigation strategy.

As a result, the law has established the “finality rule” for a judgment to be appealed.

There are some exceptions to this rule where a judgment that has not achieved “finality” can be appealed.

In essence, if a judgment is rendered without having finality or putting a definitive end to the proceedings before the trial court, you may be able to appeal it if:

  • You convince the trial court to certify that you can appeal the interim judgment 
  • You get permission to appeal from the relevant court of appeal
  • You can show that there was a controlling question of law
  • There is substantial ground for difference of opinion about the court’s order
  • An immediate appeal would materially advance the termination of the litigation 

Summary judgment appeal 

Summary judgments allow parties to a lawsuit request that the court evaluate a case as a matter of law and render a verdict. 

It’s possible that a court’s summary ruling disposes of some or all aspects of a party’s case.

For example:

A defendant may move for a summary judgment to have the plaintiff’s case rejected as a matter of law.

Typically, a judgment of the court rendered while the lawsuit is still pending and moving forward is not subject to appeal.

This includes summary judgments.

However, if a summary judgment disposes of a lawsuit entirely, it is considered a final judgment as it puts an end to the proceedings.  

A good example is a motion to dismiss rejecting the plaintiff’s claim against the defendant.

On the other hand, if a summary judgment disposes of some issues or claims while others remain pending, that judgment is considered an interlocutory judgment and can only be appealed exceptionally. 

In such cases, you may need to get the district court’s permission to certify that the interlocutory order can be appealed and, subsequently, the court of appeal’s permission in accordance with the Federal Rules of Civil Procedures.

Motion for interlocutory appeal

To file an interlocutory appeal, you must file a petition with the appellate court generally within 30 days of the interim judgment. 

In your motion, you must provide a copy of the trial court’s interlocutory judgment along with the records and exhibits that are relevant for the appeal.

When an appeal is lodged against an interim judgment, you can either have:

  • The legal proceedings stayed (or suspended) until the court of appeal renders a decision on the interlocutory judgment 
  • The legal proceedings may continue of the court does not authorize the “stay” of proceedings

It’s important to quickly react if you intend to appeal an interlocutory judgment as the delays may be quite short and you will need to get a certificate from the district court and permission from the court of appeal.


What is an interlocutory appeal?

What should you know about an FRCP interlocutory appeal?

Interlocutory Appeal:

  • It is the appeal of a non-final court order (interlocutory judgment)
  • Interlocutory appeals are possible in exceptional cases
  • A party to a lawsuit can only appeal an interlocutory judgment based on the applicable rules of civil procedure 
  • You need the trial court to certify that you can appeal an interim judgment and then you must get the permission of the court of appeal