Appeals - Final Judgment Rule

Question 1

What rules?

Answer 1

54(b)

28 USC sections 1291-1292

Question 2

What are the steps for appeal?

Answer 2

1. Final judgment: Have final judgment by R.58
2. Record of notice: File for appeal in trial court within 30 days of entry of final judgment
3. Appellate brief/record appendix: Appellant collects appendix and files with opening brief (appellee can supplement within 40 days after record of notice is filed)
4. Reply brief: Appellant can file reply brief in 14 days after appellee’s brief is served
5. Oral argument: Appellate court may set matter for oral argument

Question 3

How often is appeal set for oral argument?

Answer 3

Rarely

Question 4

When does a party have to file notice of appeal in trial court?

Answer 4

Within 30 days of entry of final judgment

Question 5

When can appellee supplement record appendix?

Answer 5

Within 40 days after record of notice is filed

Question 6

When can appellate file reply brief?

Answer 6

Within 14 days after appellee’s brief is served

Question 7

What are the 3 P’s of reviewability?

Answer 7

1. Prejudicial
2. Preserved below
3. Presented above

Question 8

Prejudicial

Answer 8

Had serious effect on final judgment by R.61

Question 9

How substantial must effect on final judgment be?

Answer 9

Substantial enough to affect rights of parties

Question 10

Preserved below

Answer 10

Allows trial court first opportunity to deal with it and gives appellate court fuller record

Question 11

What are the 4 exceptions to the “preserved below” requirement?

Answer 11

1. New rule of law
2. Plain error doctrine
3. Had no opportunity to raise objection in trial court
4. Significant question of general impact or public concern

Question 12

Presented above

Answer 12

Appealed to appellate court

Question 13

Do you include all arguments in appeal?

Answer 13

No, only strongest argument(s) that you want appellate court to consider

Question 14

Can you include new issue in reply brief?

Answer 14

No

Question 15

If not included in appellate brief, what happened to objections made in trial court?

Answer 15

Waived

Question 16

What rule does finality principle come from?

Answer 16

28 USC 1291

Question 17

What does 28 USC 1291 allow?

Answer 17

Appellate court to have jurisdiction to accept all final decisions of federal district courts

Question 18

Final

Answer 18

• Ends litigation on merits

- Leave nothing left for court to do but execute judgment

Question 19

When does appellate court lack jurisdiction?

Answer 19

If decision is not final

Question 20

Purposes of final judgment rule

Answer 20

1. Reduces congestion
2. Avoids delay/disruption
3. Avoids duplication
4. Avoids added expense and delay of extra appeals

Question 21

Finality rule exceptions

Answer 21

1. 1291 collateral order doctrine
2. 54(b) certification
3. 1292(a) injunctive relief
4. 1292(b) certified questions

Question 22

What case is the collateral order doctrine based on?

Answer 22

Cohen

Question 23

Judicial exception to finality rule

Answer 23

collateral order doctrine/Cohen

Question 24

Interlocutory ruling

Answer 24

Ruling made during course of pretrial proceeding that does not completely resolve case

Question 25

Collateral Order Doctrine Elements

Answer 25

1. Separability
2. Finality
3. Urgency
4. Importance

Question 26

Separability

Answer 26

Capable of review without disrupting main trial

Question 27

Finality

Answer 27

Complete resolution of issue below

Question 28

Urgency

Answer 28

Right incapable of vindication on final appeal

Question 29

Importance

Answer 29

Not just issue of fact, important and unsettled as of law

Question 30

Legislation exception to finality rule

Answer 30

54(b) certification

Question 31

What does 54(b) certification allow?

Answer 31

Allows court to direct final judgment as to one or more but fewer than all claims or parties

Question 32

54(b) Certification Requirements

Answer 32

1. District judge must have entered a discrete claim for relief and
2. Specifically declared there is no reason to delay entry of judgment on that claim

Question 33

When must a 54(b) certified issue be appealed? If not, what happens

Answer 33

• Within 30 days of certification

- If not, right to appeal is waived

Question 34

What does 28 USC 1292(a) allow?

Answer 34

Denial of injunctions are immediately appealable

Question 35

What does 28 USC 1292(b) allow?

Answer 35

Certified questions of law may be reviewed by appellate court

Question 36

What are the 2-key requirements for discretionary review of certified questions?

Answer 36

1. Trial judge must certify question
2. Party who wants to appeal must apply to appellate court in 10 days
3. Appellate court must accept certification

Question 37

After trial judge certifies question, when must party apply to appellate court?

Answer 37

Within 10 days of trial judge certification of questions

Question 38

What are the reasons a trial judge may certify a question?

Answer 38

1. Controlling question of law
2. Substantial ground for difference of opinion
3. Immediately appeal may materially advance resolution of the case

Question 39

Controlling

Answer 39

Disposition of issue/question would dispose of claim/defense

Question 40

What are examples where there is substantial ground for difference of opinion?

Answer 40

1. First impression

2. Trial judge changed her mind several times on issue

Question 41

What are examples where immediate appeal may materially advance resolution of case?

Answer 41

1. Issue is holding up discovery

2. Issue is likely to recur