Knowing When to Change Trains: the Ins and Outs of Interlocutory Appeals

Publication year2012
41 Colo.Law. 31
Colorado Bar Journal

2012, June, Pg. 31. Knowing When to Change Trains: The Ins and Outs of Interlocutory Appeals

The Colorado Lawyer
June 2012
Vol. 41, No. 6 [Page31]

Articles The Civil Litigator

Knowing When to Change Trains: The Ins and Outs of Interlocutory Appeals

by Jessica E. Yates

The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.

Coordinating Editor

Timothy Reynolds, Boulder, of Bryan Cave HRO-(303) 417-8510,

This article reviews various options in state and federal courts in Colorado for pursuing an interlocutory appeal, as well as the trends seen in these courts in terms of accepting and ruling on such appeals.

Every experienced trial attorney knows the feeling of facing an adverse pretrial order or mid-trial court decision that could make all the difference in the case. Unless the decision can be severed from the rest of the case and certified as final under Rule 54(b), the usual rule is that the party must continue litigating until final judgment. That said, there are exceptions. Some lawyers attempt an interlocutory appeal, even when the odds of success are extremely remote. Others do not pursue an interlocutory appeal even when their case warrants it.

Knowing whether and when it is time to "change trains" and pursue one of these interlocutory options can be critical to achieving a successful outcome. In state court, intermediate appeals can be brought before the Colorado Court of Appeals or the Supreme Court, but the standards for doing so are different for each court. Likewise, there are several paths to reaching the U.S. Court of Appeals before final judgment, which vary according to the type of question presented and the impact on the appellant if review is not granted.

Appeals Before the Colorado Supreme Court

The Colorado Supreme Court has initial appellate jurisdiction over certain types of cases pursuant to CRS § 13-4-102(1)-for example, a constitutional challenge to a statute. In contrast, Colorado Appellate Rule (CAR) 21-based on the Colorado Supreme Court's original appellate jurisdiction provided by the state constitution-is available for a variety of cases. However, the criteria are stringent: the rule grants original jurisdiction to the Colorado Supreme Court only when "no other adequate remedy," including an ordinary appeal or Colorado Rule of Civil Procedure (CRCP) 106 review, is available. The Supreme Court quickly reviews CAR 21 petitions, and if the Court accepts the petition by ordering a rule to show cause why the requested relief should not be granted, the underlying proceedings are automatically stayed.(fn1)

The odds of getting the attention of the Supreme Court under CAR 21 are small. The Clerk of the Supreme Court estimates that the Court receives approximately 300 CAR 21 petitions each year. In the five-year period of 2007 through 2011, the Supreme Court ruled on the merits of an average of eleven CAR 21 petitions each year.(fn2) The vast majority of petitions are not accepted, and sometimes an initial order to show cause is later deemed "improvidently granted" without ever reaching the merits of the petition.

According to the most recent five-year average of published cases in CAR 21 proceedings, the Court reversed in whole or in part the trial court's decision at issue nearly 87% of the time. So, if a practitioner is successful in persuading the Court to hear the CAR 21 petition, there is a strong chance of eventual success on the merits, as well, if the Court opts to reach the merits.

However, most pretrial rulings will not satisfy the CAR 21 requirement that no other remedy be available. Instead, an ordinary appeal generally is deemed to provide satisfactory relief, even when there is a chance the court of appeals will remand for further actions that might not have been necessary if the trial court did not err in the first instance. Where it appears that an entire proceeding might have to be relitigated due to trial court error, a CAR 21 petition is more likely to succeed.

For example, in the past five years, the Court has decided on eight occasions whether the trial court properly decided questions of jurisdiction or venue. In such cases, an ordinary appeal does not provide an adequate remedy, because a party could be subjected to litigation in the wrong forum. Likewise, in the past five years, the Court has twice decided the propriety of a trial court order compelling arbitration.(fn3) After all, in most arbitrations, there is little opportunity to appeal the merits of the case, so a disputed order compelling arbitration must be resolved to avoid irreversible prejudice to the losing party. When the Supreme Court has used CAR 21 to address jurisdiction in recent years, it has tended to conclude that a Colorado court had jurisdiction to hear the case.(fn4)

The Supreme Court also has ruled three times in the past five years under CAR 21 that a trial court erroneously ordered a new trial. In such cases, the Court uses CAR 21 to obviate the need for the parties to litigate an entire proceeding that it deems not justified by law-and sometimes to avoid double jeopardy.(fn5)

The Court has not used CAR 21 in the past five years to review an allegation that the trial court improperly failed to order a new trial. Likewise, the Court has not recently looked to CAR 21 to overturn a trial court's decision not to compel arbitration. In other words, it appears to the Supreme Court that the court of appeals can correct any such error in the ordinary course, even though a party believing it is entitled to arbitration may feel prejudiced by being forced to litigate in court.

Four CAR 21 decisions in the past five years have questioned the lower court's imposition of a discovery-related sanction where the sanction could have a direct and adverse impact on trial proceedings. For example, the Court has taken up questions of whether a district court properly excluded the testimony of an expert whose report was not timely disclosed,(fn6) and whether a court erred in striking an answer as a sanction for discovery violations.(fn7)

Sometimes, it is not the procedural posture of the case but rather the gravity of the issue that persuades the Court to accept a CAR 21 petition. Statutory questions regarding damage caps are apparently of interest to the Court, which ruled on statutory damage caps in the CAR 21 context three times during 2007 and 2008.(fn8)

Although it may be less obvious that no other adequate remedy exists in such cases, because damages issues are frequently raised through the regular appellate process resulting in a new trial on damages, the Court apparently is sensitive to avoiding proceedings when they otherwise would be based on an erroneous rule for damages. Furthermore, because statutory damage...

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