Appealing to the Appellate Division: Appeals of Interlocutory Orders Part 1- The Basics

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeals and Appellate Court Attorney

One of the common misconceptions about appeals is that you can only appeal a final judgment in a case.  You go through the litigation process, have a trial, get a verdict, and then you appeal the verdict to an appellate court.  But you can appeal to the appellate court BEFORE the trial begins.  If the trial court signs an order during the discovery phase compelling a witness to answer a question the witness feels is privileged, or signs an order granting partial summary judgment on certain issues, the aggrieved party can file a motion for leave to appeal this order.  Because there is no final decision regarding all the issues in this case, this type of order is called an interlocutory order.  Appeals from final judgments, which also include orders dismissing a complaint in its entirety or orders granting summary judgment on all issues in the case, can be appealed without asking for the permission of the Appellate Division.  However, appeals from interlocutory orders must be given leave, or the permission, of the court to consider.  Today, I will discuss filing appeals of interlocutory orders.

One of the first things to obtain before filing a motion for leave to appeal is a decision or order by the trial court.  Interestingly, there are times where the trial judge does not want to sign an order, and instead decides to move the case along.  If the trial judge makes a ruling and orders a party to do something in the case, counsel can request a copy of the transcript of the proceeding and substitute this in lieu of a formal signed order by the court.  Once obtained, the litigant must prepare a motion for leave of appeal.  Since the order is interlocutory, you must ask the Appellate Division for permission to appeal through a motion.  Failure to file the motion for leave is enough to have the entire appeal dismissed as the appellate court having no jurisdiction to hear this appeal as a matter of right.  But the court rules do permit less draconian alternatives, including the Appellate Division informing parties of the mistake and allowing for the correction of the mistake or granting leave for appeal despite the improper paperwork as an appeal within time.

The standard to grant a motion to leave is extraordinary, requiring proof that it is in the interests of justice to consider this one order before the trial commences, and not to do so at this point is irremediable.  These appeals are disfavored by the Appellate Division.  One of the considerations you need to make is whether the time and energy (and client’s money) you spend on briefing this issue is worth it given the high bar you need to climb to get leave to appeal.  When a final judgment is issued, these interlocutory orders can be reviewed by the appellate court as long as they are a subject of the appeal and are not considered moot.  Thus, this process should be used only when the matter will truly be infected with some sort of bias that cannot be recovered from.  A good litigator will weigh the risks and rewards and make a determination as to what is in the best interests for the client and case.

In our next blog, I will delve more into the process of appealing an interlocutory order.

To discuss your NJ Appeals and Appellate Court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Posted in Appeals.