This article was reviewed in March 2021 and is up-to-date.
Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong. The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.” The rule certainly sounds dark and fateful. Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal. So what is this rule? And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?
The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case. A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing. For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court. The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.
Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts. If a party loses a motion early in the trial court case, they may certainly feel wronged. But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary. Postponing review conserves appellate court resources, and those of the parties as well. In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency. The appellate court will not have to consider “piecemeal” appeals.
The Final Judgment Rule may make sound policy sense. But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.
There are, however, some ways around the Final Judgment Rule. Here are examples of four significant ways, and the circumstance under which each is available.
- Petition for Writ of Mandamus:
This is the classic method for obtaining relief while a litigation matter is still ongoing. This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action. This type of writ is available in both federal and state courts.
The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing. The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal. The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders. The state court percentage of accepted petitions is low and the number is even lower in federal court. The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.
There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits. One is when issues of privilege or confidentiality are concerned. For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate. If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct. It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.
Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.
- A Preliminary Injunction Ruling:
The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief. Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo. For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights. Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.
Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.
- Rulings on Anti-SLAPP Motions:
An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.” This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute. (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.) The statute defines protected activities very broadly. Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees. (Hansen v. California Dept. of Corrections and Rehabilitation.)
If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim. If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant. If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs. Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.
- Qualified Immunity Decisions:
Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity. This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits. In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled. If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply. Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.
If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense. The defense applies in a wide variety of cases brought against government officials and employees. Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.
Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants. This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.
For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”
