Appellate Insights

Most interlocutory rulings are not immediately appealable in California—instead, they can be reviewed as part of an appeal from the eventual final judgment.  Litigators who receive adverse non-appealable rulings often ask whether it’s worth seeking immediate review via a writ petition.  Here are some factors to consider:

• Writ petitions face very long odds:  Generally speaking, the grant rate for civil writ petitions is well under 10%—substantially lower than the success rate for post-judgment appeals.

• But writ petitions challenging rulings that threaten irreparable harm—for example, compelling disclosure of material claimed to be privileged—tend to get the Court of Appeal’s attention.

• Other rulings that may be reasonable writ candidates include those addressing a legal issue of first impression with broad consequences, or that will result in extensive further litigation rather than ending the case (i.e., a clearly erroneous ruling overruling a demurrer on centerpiece claims).

►  The practical message:  The overall writ petition statistics mask the fact that some types of rulings are much stronger candidates for writ review than others.  If you receive an erroneous ruling on a high-stakes issue, carefully assess where the ruling falls on that spectrum.