Colorado’s New Interlocutory Appeal Provision

I am a bit late to this party, such as it is, but on June 7, 2010, Governor Ritter signed HB10-1395.  This is a bill concerning interlocutory appeals in civil cases filed in the district courts of Colorado.  As you can see (if you are still awake at this point), this post is mostly for law-geeks.  

For intrepid non-law-geeks, “interlocutory appeals” are appeals taken before a final judgment in a lawsuit.  In general terms, pre-judgment appeals were not previously permitted in civil cases in the Colorado state courts.  There were exceptions under the previous rule.  But the exceptions were narrow enough to not matter in most cases.

For example, a party could previously ask the court of appeals to allow an appeal from an order granting or denying class certification.  This recognized that decisions on class certification are a game-changing event for the parties — a certified class action can easily be worth tens or hundreds of millions of dollars to the plaintiff, with corresponding risk to the defendant, while denial of class certification could reduce the claim to just tens or hundreds of dollars.  The swing is often on that order of magnitude, so the decision on class certification will very likely determine when and for how much a case is settled.  This makes the exception important, but very narrow and not available in the vast majority of cases where one side or the other thinks the trial judge screwed up mid-way through the case.

Every litigator thinks the trial judge made a mistake at some point in most cases.  We also know that not every mistake is going to fundamentally change the course of the case.  But there are some legal issues on which an adverse or favorable decision can dramatically change the playing field.  Until now, there was no general rule in Colorado authorizing a litigant to take a run at obtaining appellate review of such issues without having to take the case all the way to a judgment.  Under certain circumstances, this is a tremendous waste of resources.

The new provision adds a new section C.R.S. § 13-4-102.1, which states as follows (with capitalization adjusted for ease of reading):

(1)  The Court of Appeals, under rules promulgated by the Colorado Supreme Court, may permit an interlocutory appeal of a certified question of law in a civil matter from a district court or the probate court of the City and County of Denver if:

(a) the trial court certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and

(b) the order involves a controlling and unresolved question of law.

(2) a majority of the judges who are in regular active service on the Court of Appeals and who are not disqualified may, if approved by rules promulgated by the Colorado Supreme Court, order that an interlocutory appeal permitted by the Court of Appeals be heard or reheard by the Court of Appeals en banc. 

The new authority for interlocutory appeals looks like it will be effective around August 11, 2010. 

Based on the way the statute is written, I expect that the rules to implement this authority will not add much gloss on the statute, except for perhaps a time limit for filing an application to the court of appeals and addressing whether a stay will be entered in the district court while the application or appeal is being considered.  C.R.S. § 13-20-901 addresses these issues for interlocutory appeals from a decision on class certification (10 days to file an application and no stay unless the district court or court of appeals orders one), and my guess is the same kind of rule and likely the same language will be adopted for this new appellate authority.

The new Colorado statute is similar to the federal statute governing interlocutory appeals from the federal district courts to the United states Courts of Appeals, 28 U.S.C. 1292(b):

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order. . . .

When I have some time, I may do some research to see whether the language differences are likely to matter.  But off-hand, I would expect the Colorado version to be applied in generally the same manner as the federal version.  The Colorado courts will most likely hold that the federal statute is sufficiently close to the Colorado statute that federal authorities interpreting the federal law are “persuasive”authority” — helpful, likely to be followed, but in no way binding.  The differences are enough, however, that the Colorado rule could be applied differently.

As a commercial litigator, I am happy to now have the option to seek an early appeal if the issue warrants it.  My cases can cost hundreds of thousands or millions of dollars to take through trial, and an early error on an issue of law can cause that expense to be incurred unnecessarily.  However, I expect the court of appeals to conclude that the circumstances warranting an early appeal are exceedingly rare.   The court already has a heavy caseload.

Published in: on July 16, 2010 at 4:10 pm  Leave a Comment  

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