Appeal

Question 1

What is the final judgement rule?

Answer 1

The loser has a right to appeal if the order is a “final judgment.”

Question 2

What is a final judgement?

Answer 2

A final judgment is one that determines the merits of the entire case.

Question 3

How to determine whether an order is a final judgement

Answer 3

To determine whether an order is a final judgment, ask: after making the ruling, does the trial judge have anything left to do on the merits of the case?

Question 4

Interlocutory order

Answer 4

If the trial judge has anything left to do on the merits of the case. it is not a final judgment. It is an “interlocutory order.”

Question 5

If there is a final judgment, where and when do you file your notice of appeal?

Answer 5

In the district court within 30 days after entry of judgement.

Question 6

Suppose that after a case was removed from state to federal court, the federal court remands the case to state court. Can the remand order be appealed to the U.S. Court of Appeals?

Answer 6

Generally, no.

Question 7

What is an interlocutory appeal?

Answer 7

Appellate review of a part of the case before the final judgement is made.

Question 8

Whare are the doctrines of interlocutory appeal?

Answer 8

1. Orders Reviewable as of Right
2. Interlocutory Appeals Act
3. “Collateral Order” Doctrine
4. Multiple Claims and Parties
5. Class Action
6. Extraordinary Writ (Mandamus or Prohibition)

Question 9

What interlocutory orders are reviewable as of right?

Answer 9

Orders granting, modifying, or refusing preliminary or permanent injunctions.

Question 10

Are orders granting, modifying, or refusing a temporary restraining order appealable as of right?

Answer 10

No. But, TROs are treated as a preliminary injunction after 28 days and then can be appealed.

Question 11

The Interlocutory Appeals Act allows appeal of nonfinal order if:

Answer 11

• The district judge certifies that it involves a controlling issue of law
• As to which there is substantial ground for difference of opinion, and
• The court of appeals agrees to hear it.

Question 12

What are the elements of the collateral order doctrine?

Answer 12

Appellate court has discretion to hear ruling on an issue if that issue:

• Is distinct from the merits of the case
• Involves an important legal question, and
• Is essentially unreviewable if parties await a final judgment (i.e. party’s right to appeal dissipates when final judgement occurs).

Question 13

What is the interlocutory rule regarding multiple claims and parties?

Answer 13

When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.

Question 14

What is the class action standard for interlocutory appeals?

Answer 14

1. Court of appeals has discretion to review an order granting or denying certification of class action.
2. Must seek review at the court of appeals within 14 days of order.
3. Appeal here does not stay the proceedings at district court unless the court of appeals or district court says so.
4. Appeal is discretionary.

Question 15

What is the Extraordinary Writ (Mandamus or Prohibition) standard for interlocutory appeals?

Answer 15

• An original proceeding in the court of appeals to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• available only if the district court is violating a clear legal duty

Question 16

When the district judge decides questions of law, by what standard does the court of appeals review?

Answer 16

De Novo.

Question 17

District judge gave a jury instruction that put the burden of proof at trial on the wrong party. Why does the court of appeals review that de novo?

Answer 17

Because the content of a jury instruction is a question of law.

Question 18

In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless:

Answer 18

The findings are clearly erroneous

Question 19

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless:

Answer 19

reasonable people could not have made that finding.

Question 20

On discretionary matters (e.g. whether to grant a motion to amend pleadings to allow permissive intervention), the court of appeals will affirm unless:

Answer 20

The district judge abused her discretion.

Question 21

Suppose the court of appeals decides “I would have ruled the other way on this, but what the district judge did is in the ballpark. It’s not goofy.” Must it affirm?

Answer 21

Yes, because the ruling is not an abuse of discretion.

Question 22

How is the district judge’s decision whether to give a particular jury instruction reviewed?

Answer 22

It is reviewed for abuse of discretion.

Question 23

Not every error (even an error of law) requires reversal on appeal.

No reversal is required if the error is:

Answer 23

harmless.