Summary. The working documents of interlocutory practice, annotated.

Template 1 — Appealability triage sheet

Run this the day the ruling issues. Ten minutes.

ADVERSE RULING — APPEALABILITY TRIAGE     Order dated: ______

1. APPEALABLE AS OF RIGHT?
   [ ] Injunction granted/denied/modified — 1292(a)(1)
   [ ] Practical effect of an injunction + serious consequence
   [ ] Immunity denied ON LEGAL GROUNDS (not factual dispute)
   [ ] Arbitration REFUSED / stay denied — 9 USC 16
       (Arbitration COMPELLED is NOT appealable)
   [ ] Receivership / admiralty
   [ ] Criminal contempt / civil contempt vs. non-party
   [ ] Foreign sovereign immunity refused
   -> IF YES: notice of appeal. Deadline: ______  STOP HERE.

2. DEADLINES — ENTER IN CALENDAR NOW
   1292(b) petition (if certified): 10 days   ** JURISDICTIONAL **
   Rule 23(f) petition:             14 days   ** STRICT **
   Notice of appeal (if as of right):         ______

3. TRIAGE — ALL THREE MUST BE YES
   [ ] Dispositive or nearly so?          Effect: ______
   [ ] Legally wrong on a real question?  Authority both ways? ___
   [ ] Years before review otherwise?     Trial date: ______

4. ROUTE
   [ ] Rule 54(b) — a claim/party fully resolved and separable
   [ ] 1292(b) — pure question of law + genuine split
   [ ] Rule 23(f) — class certification order
   [ ] Mandamus — irreversible harm + clear error
   [ ] Stipulated judgment — restructure to finality
   [ ] None — preserve and proceed

5. STAY REQUIRED?  Y / N   Sought from: ______  By: ______

COMPLETED BY: ______  DATE: ______

Template 2 — Deadline tracker

Event Date Deadline rule Due Owner Filed
Adverse order entered —
Motion to certify filed No deadline
Certified order entered —
Petition for permission 10 days — jurisdictional
Class certification order —
Rule 23(f) petition 14 days — strict
Notice of appeal (as of right) Per FRAP
Stay motion — district court ASAP
Stay motion — court of appeals After denial below
Rule 54(b) judgment entered —
Notice of appeal from 54(b) judgment Per FRAP

Two rows carry the whole document. Certifications are granted and then wasted because nobody diaried the ten days.

Template 3 — Motion to certify under § 1292(b)

Four pages. Do not argue the merits.

MOTION TO AMEND THE COURT'S [DATE] ORDER TO INCLUDE A CERTIFICATION UNDER 28 U.S.C. § 1292(b)

Defendant respectfully requests that the Court amend its Order of [date] to include the findings specified in 28 U.S.C. § 1292(b), so that Defendant may petition the Court of Appeals for permission to appeal. Defendant does not ask the Court to reconsider its ruling. Defendant asks only that the Court find the question a close one on which appellate guidance would benefit the parties and the Court.

I. The controlling question of law. Whether [state the question in a single sentence, as it would appear at the top of an appellate opinion].

II. It is a controlling question of law. The question is purely legal; its resolution requires no factual development. It is controlling because [reversal would terminate the action / reversal would reduce the exposure from $___ to $___ / reversal would eliminate __ of the __ claims].

III. There is substantial ground for difference of opinion. [This section decides the motion. Be specific.] The [Nth] Circuit held in ___ that ___. The [Mth] Circuit held in ___ that ___. District courts within this Circuit have divided: ___ and ___. The [State] Supreme Court has not addressed the question. The Court's Order acknowledged the absence of controlling authority at [page].

IV. Immediate appeal would materially advance the ultimate termination. [Quantify.] Fact discovery is scheduled to close in ___ months. The parties anticipate ___ expert reports and a -week trial. If the question is resolved now, [the case resolves / the scope of discovery narrows by ___ / the damages phase is unnecessary]. If it is resolved after final judgment, the parties will have incurred an estimated $ and a retrial would be required.

V. A stay is appropriate pending resolution. [Brief; cross-reference the separate stay motion if filed.]

VI. Conclusion. Defendant requests entry of the proposed amended order attached as Exhibit A.

Two things that raise the grant rate substantially: the express statement in the opening paragraph that reconsideration is not sought, and asking the other side to join or not oppose. Where a controlling question is genuinely close, both parties often want it resolved.

Template 4 — Proposed certified order language

Attach as an exhibit. Make it easy for the court to sign.

AMENDED ORDER

The Court's Order of [date] is amended to include the following:

The Court is of the opinion that this Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from this Order may materially advance the ultimate termination of the litigation. The controlling question of law is:

[The question, stated in one sentence.]

The Court finds substantial ground for difference of opinion because [one or two sentences: the circuits have divided; there is no controlling authority in this Circuit; the district courts within this Circuit have reached inconsistent results].

The Court further finds that immediate appeal may materially advance the ultimate termination of this litigation because [one sentence].

Accordingly, this Order is certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

[Optional:] Proceedings in this Court are STAYED pending the Court of Appeals' disposition of any timely petition for permission to appeal and any appeal permitted thereon.

Ask the court to include its reasoning, not merely the statutory recitation. A petition supported by a reasoned certification reads as a judicial recommendation, and it fares better.

Template 5 — Petition for permission to appeal

Filed within 10 days. The court is deciding whether to take the case.

PETITION FOR PERMISSION TO APPEAL UNDER 28 U.S.C. § 1292(b)

I.   THE QUESTION PRESENTED
     [One sentence.]

II.  RELIEF SOUGHT
     Permission to appeal the district court's [date] Order,
     certified on [date].

III. FACTS NECESSARY TO UNDERSTAND THE QUESTION
     [Two pages maximum. Not the case history — only what the
      panel needs to understand the legal question.]

IV.  THE QUESTION IS CONTROLLING
     [What changes if the answer is different.]

V.   THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION
     A. The [Nth] Circuit's approach
     B. The [Mth] Circuit's contrary approach
     C. Why the authorities cannot be reconciled
     D. The absence of controlling authority here
     *** THIS SECTION DETERMINES THE OUTCOME ***

VI.  IMMEDIATE APPEAL WOULD MATERIALLY ADVANCE TERMINATION
     [Quantify what remains.]

VII. THE DISTRICT COURT'S VIEW
     [Quote the certification and its reasoning.]

VIII. [BRIEFLY] THE ORDER IS INCORRECT
     Two pages maximum. Fifteen pages here suggests the question
     is not close.

IX.  CONCLUSION

ATTACHMENTS: the certified order; the underlying order and
reasoning; relevant filings.

Template 6 — Rule 54(b) motion and judgment

MOTION FOR ENTRY OF PARTIAL FINAL JUDGMENT UNDER RULE 54(b)

I. One claim has been completely resolved. The Court's Order of [date] dismissed Count [ ] in its entirety [/ dismissed Defendant ___ from this action]. No aspect of that claim [/ that party's liability] remains before the Court.

II. The resolved claim is separable. Count [ ] rests on [distinct legal theory] and on facts concerning [distinct subject matter]. The remaining claims concern [different subject matter]. An appeal now would not require the Court of Appeals to consider the same facts or legal questions twice.

III. There is no just reason for delay. [Explain: the resolved claim represents $___ of the exposure; the remaining claims will take ___ months to try; the parties' settlement posture depends on the resolved claim; witnesses relevant to the resolved claim are elderly or leaving the jurisdiction.]

IV. Proposed judgment attached as Exhibit A.

PARTIAL FINAL JUDGMENT UNDER RULE 54(b)

The Court, having dismissed [Count ___ / Defendant ___] by Order dated [date], and having considered [movant]'s motion, expressly determines that there is no just reason for delay and expressly directs entry of final judgment.

The Court so determines because: [the resolved claim is factually and legally separable from the remaining claims; an appeal would not require duplicative appellate consideration; and [additional reasons]].

Final judgment is entered in favor of [ ] and against [ ] on [Count ___]. The remaining claims proceed.

Boilerplate gets appeals dismissed. Draft the reasoning for the court.

Template 7 — Rule 23(f) petition

Filed within 14 days. Work backward: draft by day 8, client review day 10, file day 12.

PETITION FOR PERMISSION TO APPEAL UNDER RULE 23(f)

I.   INTRODUCTION
     One paragraph: what was certified, and why review now.

II.  THE ORDER EFFECTIVELY ENDS THE LITIGATION
     A. The class size and the exposure
     B. The petitioner's financial position
     C. Why the case will settle without a merits ruling
     [State the numbers. Do not overstate; panels are skeptical
      of hyperbole and receptive to arithmetic.]

III. THE ORDER PRESENTS AN UNSETTLED AND IMPORTANT QUESTION
     A. The question
     B. The split
     C. Why it recurs

IV.  THE ORDER DID NOT ENGAGE [THE ARGUMENT / THE RECORD]
     [Not "the court erred" — "the court did not address
      petitioner's evidence that ___," with a record citation.]

V.   THE STAGE OF THE LITIGATION FAVORS REVIEW

VI.  CONCLUSION

ATTACHMENTS: the certification order; the briefing below;
the record evidence the order did not address.

Three points, in that order. A fourth weakens all three. And do not attempt voluntary dismissal to manufacture finality — Microsoft Corp. v. Baker, 582 U.S. 23 (2017) forecloses it.

Template 8 — Mandamus petition

Complete on filing; the court may deny without calling for a response.

PETITION FOR A WRIT OF MANDAMUS

I.   RELIEF SOUGHT
     A writ directing the district court to [vacate the Order of
     ___ / transfer this action to ___ / recuse].

II.  THE ERROR
     [Concrete, in one paragraph. Not "abused its discretion" but
      "applied the crime-fraud exception to 4,000 documents
      without the prima facie showing this Court requires."]

III. FACTS
     [Only what is necessary. Cite the appendix.]

IV.  THERE IS NO OTHER ADEQUATE MEANS TO OBTAIN RELIEF
     *** ADDRESS THIS FIRST. It is what the panel checks first. ***
     A. Post-judgment appeal cannot restore [the privilege /
        the forum / the recusal]
     B. § 1292(b) is unavailable because [the question is not
        purely legal / the district court declined to certify]
     C. The collateral order doctrine does not apply
        [Mohawk Industries, if privilege]

V.   THE RIGHT TO RELIEF IS CLEAR AND INDISPUTABLE
     [The legal standard, and why the ruling cannot be squared
      with it.]

VI.  THE WRIT IS APPROPRIATE UNDER THE CIRCUMSTANCES
     [Scope of the harm; whether the question recurs;
      supervisory interest.]

VII. CONCLUSION

APPENDIX: the order; the briefing below; the record.
SEPARATELY FILED: motion for stay.

Governing standard: Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004). Be narrow, be complete, and be respectful about the district judge, who is the nominal respondent.

Template 9 — Motion for stay pending appeal

MOTION FOR STAY PENDING APPEAL

I. Nothing stays automatically. [Except where 9 U.S.C. § 16 applies and Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023) requires it.]

II. Likelihood of success. [Brief. The court has already ruled; the argument is that the question is substantial, not that you will certainly win.]

III. Irreparable injury absent a stay. [The strongest factor. Be concrete and dated: "Absent a stay, [movant] must produce 4,000 privileged documents by [date], after which the privilege cannot be restored." / "Absent a stay, [movant] must conduct class-wide discovery across 1.4 million accounts at an estimated cost of $___, which will be wasted if certification is reversed."]

IV. No substantial harm to other parties. [Address delay honestly and propose mitigation — an expedited appeal, a partial stay, a preservation order.]

V. The public interest.

VI. In the alternative, a partial stay. [Stay only the proceedings affected: class-wide discovery, the damages phase, production of the disputed documents. This is frequently granted where a full stay is not.]

Move in the district court first. The judge who certified is frequently receptive, because certification implies she thinks the question matters.

Template 10 — Emergency motion

EMERGENCY MOTION FOR STAY / TEMPORARY ADMINISTRATIVE STAY

CERTIFICATE OF EMERGENCY
  Relief is needed by [date and time] because [the injunction
  takes effect / production is due / trial begins].
  Opposing counsel was notified on [date] at [time] by [method].
  Counsel's position: [opposes / does not oppose / no response].
  Relief was sought below on [date] and [denied / not ruled on].

I.   NATURE OF THE EMERGENCY  (one page)
II.  RELIEF REQUESTED
     A. A temporary administrative stay pending consideration
     B. A stay pending appeal
III. THE FOUR FACTORS  (five pages)
IV.  CONCLUSION

ATTACHMENTS: the order; the motion below and any ruling;
declaration establishing the timing.

Call the clerk first. Every circuit has an emergency procedure and a duty judge, and the clerk will explain the format and the realistic timing.

Ask for the administrative stay separately. It merely preserves the status quo while the court considers, is granted far more readily than a stay pending appeal, and is frequently what you actually need.

Template 11 — Stipulated judgment (restructuring to finality)

STIPULATION AND [PROPOSED] JUDGMENT

  1. On [date], the Court issued its Order [construing / holding / ruling] that [state the ruling precisely].

  2. Solely in light of, and solely for purposes of, the Court's Order, [Party] does not contend that it can establish [the element the ruling forecloses] as to [the affected claims].

  3. [Party] does not concede that the Court's Order is correct and expressly preserves all arguments regarding [the ruling] for appeal.

  4. The parties therefore stipulate to entry of judgment against [Party] on [Counts ___].

  5. [Address the remaining claims: "The remaining claims are dismissed without prejudice, subject to the tolling agreement attached, and will be reinstated if the judgment is reversed." This paragraph is what makes the judgment final and appealable.]

  6. Nothing herein constitutes a concession as to [validity / liability / damages] or as to any issue other than as stated in paragraph 2.

  7. Each party bears its own costs, without prejudice to any post-appeal application.

Two traps. A stipulation conceding more than the ruling requires waives the appeal it was meant to enable. One leaving claims pending may not produce an appealable final judgment under 28 U.S.C. § 1291.

Template 12 — Client memorandum

One page, before anything is filed.

THE RULING. On [date] the Court held that [ ]. The practical effect is [ ].

CAN WE APPEAL NOW? [Route, and why. Or: not as of right; the available routes are ___.]

WHAT IT COSTS. Certification motion: $______ · Petition: $______ · Full appeal if permitted: $______

THE ODDS. Obtaining review: ____%. Reversal if reviewed: ____%. Combined: ____%.

WHAT REVERSAL IS WORTH. [Change in exposure, or effect on the case.]

DELAY. ____ months. This [helps / hurts] us because ______.

THE NON-MONETARY COSTS.

  • The district judge will know we sought review of her ruling, in a case with ___ more months to run.
  • If we lose, the ruling becomes law of the case with appellate approval and the issue is unavailable on appeal from the final judgment.

RECOMMENDATION. [ ]

Give the percentage. A client who learns after $70,000 that most attempts fail at the threshold will reasonably ask why nobody said so.

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