The Final Judgment Rule and Interlocutory Appeals

You've got to be ready for some questions about appeals on the MBE.  It shows up in a few different contexts with one context focusing on whether interlocutory orders are reviewable immediately or instead whether only final orders are reviewable. The general rule to note (sometimes referred to as the final-judgement rule) is that only final orders are reviewable, but the inquiry doesn't end there.

Certain interlocutory orders are reviewable as of right; they include injunctions (not TRO's), appointments of receivers, and certain admiralty, patent infringement, and property possession cases.  In addition, the Interlocutory Appeals Act allows for discretionary review when the trial judge certifies that the interlocutory order involves a controlling question of law. Review of interlocutory orders is more likely if substantial ground for difference of opinion exists, and immediate appeal from the order may materially advance the ultimate termination of the litigation. It'll also be necessary that the court of appeals agrees to allow the appeal.

Another basis for immediate appeal prior to a final order is the Collateral Order Doctrine.  For this rule to apply, the claim or issue that is the subject of the appeal must be separable from and collateral to the main suit and too important of an issue to require deferring appellate review until a final judgment on the main suit has been rendered.

A few additional points to note: an order granting or denying the certification of a class action may be reviewed at the court's discretion within 14 days after entry of the order. In addition, in rare circumstances, the final-judgement rule may be avoided through a variety of appellate writs such as mandamus (compelling a judge to act) and prohibition (prohibiting a judge from acting).