Can I Appeal a Decision Before the Case is Over?

July 11. 2019 | by Stefan McBride

Appealing a case before it’s over (yes & no)

I sure hate to do this to you, but I must: “It depends.”

Ordinarily, you have to wait until the end of a case to appeal a judge’s findings. This includes rulings that may have occurred along the way, even if they were decided long before the final decision. And it applies even if one of these decisions along the way was important and might have changed the outcome of the whole thing.

This is what’s called “finality.” It’s one of the most important things to consider when you bring an appeal in Arkansas because it is fatal—it will kill the entire appeal and you may have to start all over. Finality is simply the principle that an appellate court does not want to hear an appeal in fragments. For the sake of preserving the courts’ time, they have rules that require all the issues to be rolled into one appeal, where they can decide everything.

The first common error 

Okay, so that’s the rule. Here is the exception: In certain circumstances, a party can have the trial court “certify” a question to be considered before the final decision has been made. The guidelines for getting a question certified are found in Rule 54(b) of the Arkansas Rules of Civil Procedure and Rule 3 of the Arkansas Rules of Appellate Procedure. This certificate is often known as a “54(b) certificate.”

Lawyers routinely mess this up because they don’t follow these rules carefully.

The first way in which a lot of lawyers mess this up is by not carefully following the language of the rules. This is not the time to get creative; when a lawyer drafts the Rule 54(b) Order for the trial judge to sign, he or she needs to track the rule word-for-word. Every part of it is important and needs to be in the order. That is a relatively easy trap to avoid.

 

Lawyers routinely mess this up because they don’t follow these rules carefully.

Another Common Error Arkansas attorneys make

The second common error is failing to get the trial judge to explain exactly why the question is being certified before the final decision. The order has to make specific, factual findings. Basically this means that the judge needs to actually list reasons why the appellate court should break its own rule. It’s not enough to make generalized statements. He or she must explain why the particular question needs to be addressed before the court goes on to hear the rest of the case.

There are good reasons for submitting a particular issue for appeal before the case is finished, but they are rare. Both because of the landmines of a 54(b) certificate and the added cost of multiple appeals, it’s normally more appropriate to wait for the case to end.

This is complicated. If you have questions, please call us.

About The Author

Stefan McBride is member of the Arkansas Bar Association, Arkansas Trial Lawyer’s Association, American Bar Association, and Pulaski County Bar Association. When he’s not lawyering, Stefan enjoys cooking or working in the garden with his wife and kid.