Appellate Review

Question 1

What is the Final Judgment Rule?

Answer 1

The losing party has a right to appeal if the court’s order is a final judgment.

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

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

YES? It is an interlocutory order, not a final judgment

NO? The judgment is final.

Question 2

Are remand order appeallable?

Answer 2

Remand orders, with some minor nontestable exceptions, are not reviewable on appeal.

Question 3

If the judgment is final, where and when is the notice of appeal filed?

Answer 3

The notice of appeal must be filed with the district court within 30 days after entry of the judgment that is being appealed.

Question 4

What are the 6 different types of interlocutory appeals?

Answer 4

1. Interlocutory Appeals of Injunctions as of Right: Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right despite the fact that the order may not be final. (NOT TROs)
2. Interlocutory Appeals Act: (i) the trial judge certifies that the order involves a controlling question of law (ii) as to which there is substantial ground for a difference of opinion and (iii) an appeal would materially advance the conclusion of the case, and (iv) at least two appellate court judges agree to hear the appeal
3. Collateral Order” Doctrine: The appellate court has discretion to hear an appeal on an issue if that issue: (1) Is distinct from the merits of the case; (2) Involves an important legal question; and (3) Is essentially unreviewable if parties await a final judgment.
4. Multiple Claims and Parties: When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is not a final, appealable judgment UNLESS the court makes an express determination that there is no just reason for delay.
5. Class Action: A court of appeals has discretion to review an order granting or denying certification of a class action. The party seeking review must do so at the court of appeals within 14 days of order. An appeal does not stay the proceedings at district court unless the court of appeals or district court says so.
6. Extraordinary Writ (Mandamus or Prohibition): an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if the district court is violating a clear legal duty.

Question 5

What are the Standards of Review on Appeal?

Answer 5

Review of Questions of Law: “de novo” (no deference to the district judge). (ex: JMOL / RJMOL

Questions of Fact in a Bench Trial: Appeals will affirm unless the findings are “clearly erroneous.”

Review of Question of Fact in a Jury Trial: the court of appeals will affirm unless “reasonable people could not have made that finding.”

Review of Discretionary Matters: Will affirm unless judge “abused her discretion.” Just must be in the ballpark. (ex: whether to grant a motion to amend pleadings, to allow permissive intervention, jury instructions, if objected to; new trial).

Harmless Error: Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is harmless; that is, it did not affect the outcome of the case.

Question 6

What is the standard of review on appeal if a party fails to object to jury instructions?

Answer 6

In order to reserve its right to appeal an error in an instruction given, a party must object on the record before the instructions are given.

If adequately preserved, the instructions are reviewed using an abuse of discretion standard.

If the party did not timely object to the instructions, the court will review them using a plain error standard of review.