Interlocutory Appeal (Certified Question)

When the interlocutory appeal is used

Timing: during the case, within days of the order. Appeals follow a final judgment in most cases. The Federal Rules of Appellate Procedure govern this stage.

What the rule requires

• A district judge may certify that an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation; application must be made to the court of appeals within 10 days after entry of the order (§ 1292(b)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of 28 U.S.C. § 1292(b) online. Also, the federal judiciary publishes the current rules and recent amendments.

The interlocutory appeal in state court

State courts follow their own rules of procedure. Many states model their rules on the federal rules, so you will often find a similar interlocutory appeal procedure. However, the name, the deadline and the required form can differ. Therefore, look up the matching rule in your state’s rules of civil procedure. Also read your court’s local rules. Our state procedures guide links to each state’s official rules.

Key terms

In addition, these terms come up often with this procedure:

• Interlocutory: describes an order made during a case that is not a final judgment.

Related procedures

Similarly, these procedures often come up alongside it:

• Notice of Appeal: the filing that starts an appeal from a federal district court to a court of appeals.

Before you rely on this page

First, read the current text of the rule. After that, check your court’s local rules and any standing order from the judge. In addition, look at recent decisions from your own court. They show how judges apply the rule in practice. For advice about your own case, speak with a licensed attorney, for example through our directory.