What Can — Or Should — Be Appealed?

Although it is perhaps obvious, only a judicial determination can be appealed. Until something that can be the subject of an order is decided by a judicial officer, there is nothing that can be the subject of an appeal. Administrative determinations, such as which judge will hear what case, can be the subject of a review but not an appeal.

Once an order or judgment is granted, the practical question of whether an appeal should be taken arises. Most appeals fail. The cost of launching an appeal is not trivial and, unless some good reason exists, most appeals are not worthwhile. Good reasons to appeal include the following:

1. The matter is of such importance that even a small chance of success on appeal justifies the cost of appeal;

2. The party appealing wishes to settle and needs some leverage for settlement discussions — here the full costs of appeal may not be incurred as settlement will be sought well before any hearing date; and

3. The party appealing needs some time to arrange its affairs and wants to use an automatic stay of a monetary judgment pending appeal. In this case the merits of the appeal are largely irrelevant and the appellant recognizes an enforceable judgment will follow; often such appeals are abandoned before hearing.

As can be readily seen from the foregoing, it is highly unusual for anything other than a judgment following a substantive hearing to merit an appeal.

Interlocutory matters are worth appealing only where the rest of the case hinges on the interlocutory decision[1] or where tactical reasons which may be suggested on appeal may put pressure on the respondent to settle.[2]


[1] For example, where a certificate of pending litigation is vacated in an action for specific performance of sale of land.
[2] For example, where the respondent has few resources and an appeal (regardless of outcome) will use up many of those limited resources. Ethics, of course, requires that only appeals with merit be brought.