Seeking an Interlocutory Appeal: A Practical Guide

Summary. The week after an adverse ruling, and what to do in it.

The week after the ruling

Interlocutory practice is decided in days. Work through this sequence immediately.

Step 1 — Determine whether the ruling is appealable as of right

Before considering anything discretionary, check the categories that require no permission:

An injunction — granted, denied, modified, dissolved, or refused to be modified — under 28 U.S.C. § 1292(a)(1)
An order having the practical effect of one, with serious consequence and no other route
Denial of qualified, absolute, or Eleventh Amendment immunity on legal grounds
Refusal to compel arbitration or denial of a stay under 9 U.S.C. § 16
A receivership order
An admiralty decree determining rights and liabilities
Criminal contempt, or civil contempt against a non-party

If yes: file the notice of appeal within the ordinary deadline and stop analyzing. These require no permission and the deadline is the same as for any appeal.

A caution on immunity appeals: denial on legal grounds is appealable; denial because a factual dispute precludes resolution is not. Appellants blur this and lose jurisdiction.

Step 2 — Calendar every deadline today

Route	Deadline	Nature
Appeal as of right	Ordinary notice-of-appeal period	Jurisdictional
§ 1292(b) petition	10 days from entry of the certified order	Jurisdictional
Rule 23(f) petition	14 days from the certification order	Strict
Mandamus	No fixed deadline, but delay defeats it	Discretionary
Rule 54(b)	No deadline, but ask while the reasoning is fresh	—

Put these in the calendar the day the ruling issues. Certifications are granted and then wasted because nobody diaried the ten days.

Step 3 — Triage the ruling honestly

Three questions, in order:

Is it dispositive or nearly so? Does it change the outcome, the exposure by an order of magnitude, or whether the case proceeds at all? If it merely makes trial harder, stop here.

Is it legally wrong on a question with a real answer? Not "we disagree" — is there a genuine legal question with authority on both sides? Discretionary rulings and applications of law to fact rarely qualify.

Will it otherwise take years to review? If trial is four months away, the ruling will be reviewed soon enough on a complete record.

All three yes: proceed. Any no: preserve the objection and move on.

PART ONE: CHOOSING THE ROUTE

Step 4 — Rule 54(b), if a claim or party is fully resolved

Often the easiest route and the most overlooked.

Federal Rule of Civil Procedure 54(b) permits entry of final judgment as to fewer than all claims or parties, upon an express determination that there is no just reason for delay. The resulting judgment is appealable as of right.

When it fits: one defendant dismissed from a multi-defendant case; one claim resolved on a discrete legal ground; a counterclaim resolved separately.

Requirements:

Complete resolution of at least one claim or as to one party
Separability — the appellate court should not have to consider the same facts twice
An express determination and reasoning, not boilerplate; appeals are dismissed where the district court did not explain

Why it is easier than § 1292(b): the judge is not being asked to acknowledge that her ruling is doubtful. She is being asked to confirm that a discrete piece of the case is finished.

Step 5 — § 1292(b), if the question is a pure question of law

Ask honestly before spending money:

Is it a pure question of law the appellate court could decide without the record? (Not application of law to facts; not sufficiency; not discretion.)
Is it controlling — would reversal terminate the action or materially alter its course?
Is there substantial ground for difference of opinion — a real split among circuits or districts, or absent controlling authority? Your disagreement is not a ground.
Would immediate appeal materially advance termination — is there substantial litigation remaining?

If any answer is no, certification will be denied, and the request will have told the district judge you think she was wrong.

Step 6 — Rule 23(f), for class certification

Federal Rule of Civil Procedure 23(f) permits a discretionary appeal from an order granting or denying certification, on petition within 14 days.

What persuades: the ruling effectively ends the case for one side; it presents an unsettled and important question; it is manifestly erroneous; the case is early enough that review is efficient.

Do not attempt the workaround. Microsoft Corp. v. Baker, 582 U.S. 23 (2017) held that voluntarily dismissing individual claims to manufacture a final judgment does not produce an appealable decision.

Step 7 — Mandamus, if the harm is irreversible

Available under 28 U.S.C. § 1651, on the Cheney standard: no other adequate means; a clear and indisputable right; and appropriateness in the court's discretion.

Categories where it actually works:

Venue and transfer, especially in the Federal Circuit for patent cases
Clear usurpation of power
Persistent disregard of the rules or of appellate mandate
Recusal denials, in some circuits
Separation-of-powers concerns
Privilege rulings of exceptional importance — the route Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) left open

Where it does not: garden-variety discovery rulings, evidentiary rulings, and any attempt at a second bite at a discretionary decision.

The test to apply: is the harm genuinely irreversible? Disclosure of privileged material, transfer to a forum applying different law, and proceeding before a judge who should have recused are irreversible. An adverse evidentiary ruling is not.

Step 8 — Restructure to produce a final judgment

Frequently faster and more certain than seeking permission.

The stipulated judgment. Where a ruling is dispositive of a claim, the parties stipulate that the claim fails under the ruling, judgment enters, and the appeal proceeds as of right on a clean record. This is standard in patent cases after an adverse claim construction and works anywhere the affected claims resolve cleanly.

Drafting requirements:

Recite that the stipulation is made solely in light of the court's ruling
State that the party does not concede the ruling is correct and expressly preserves all arguments
Ensure the judgment is genuinely final — no claims or counterclaims left pending, or address them by dismissal with a tolling agreement
Concede no more than the ruling actually requires

The trap: a stipulation conceding too much waives the appeal it was meant to enable; one conceding too little does not produce an appealable judgment.

PART TWO: DRAFTING

Step 9 — The certification motion

Four pages, and it should not argue the merits.

The district judge has already decided. Asking her to agree the question is hard is a different request from asking her to agree she was wrong, and the framing determines the answer.

MOTION TO AMEND ORDER TO INCLUDE CERTIFICATION
UNDER 28 U.S.C. § 1292(b)

I.   THE QUESTION
     [One sentence, stated as it would appear at the top of an
      appellate opinion.]

II.  IT IS A CONTROLLING QUESTION OF LAW
     Pure legal question; reversal would [terminate the action /
     materially alter its course by ___].

III. THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION
     [The split, with citations. The Nth Circuit holds ___;
      the Mth Circuit holds ___; this state's high court has not
      addressed it. This is the section that decides the motion.]

IV.  IMMEDIATE APPEAL WOULD MATERIALLY ADVANCE TERMINATION
     [What remains: ___ months of discovery, ___ experts, a
      ___-week trial. If the question is resolved now, ___.]

V.   MOVANT DOES NOT ASK THE COURT TO REVISIT ITS RULING
     [Say this expressly. It changes how the motion is received.]

VI.  RELIEF REQUESTED
     Amendment of the [date] Order to include the § 1292(b)
     findings; and a stay of proceedings pending resolution.

Ask the other side to join or not oppose. Where both parties want the question resolved — and often both do — an unopposed motion is granted at a much higher rate.

Step 10 — The petition for permission

Filed in the court of appeals within ten days. The court is deciding whether to take the case, not deciding it.

Open with the question, in one sentence.
Establish the split with specificity. This is the element most petitions handle poorly and the one that most determines the outcome.
Show it is controlling and that it advances termination.
Do not argue the merits at length. Two pages showing the question is close serves better than fifteen arguing you are right, which suggests it is not close.
Attach the certified order and the district court's reasoning.
Request a stay if proceedings are continuing.

Step 11 — The mandamus petition

It must be complete on filing; the court may deny without calling for a response.

Open with the error, stated concretely. Not "abuse of discretion" but "the court applied the crime-fraud exception to 4,000 documents without the prima facie showing this Court requires."
Address the Cheney elements in order, beginning with "no other adequate means," because that is what the panel checks first.
Explain irreversibility in detail. This is the heart of the petition.
Be narrow. One clear error, not a course of conduct.
Include the record; the panel will not order it.
Seek a stay simultaneously and separately.
Be respectful about the district judge, who is the nominal respondent.

PART THREE: STAYS AND AFTERWARD

Step 12 — Get a stay, or the appeal may be pointless

Nothing stays automatically except an appeal from denial of a motion to compel arbitration, where Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023) requires the district court to stay proceedings.

For everything else, move — first in the district court, then in the court of appeals if denied. Address the traditional factors:

Likelihood of success on the appeal
Irreparable injury absent a stay
Harm to other parties from a stay
The public interest

The district judge who certified is frequently receptive to a stay, because certification implies she thinks the question matters.

Consider a partial stay. Staying only the proceedings affected by the ruling — the damages phase, discovery on the affected claim — is easier to obtain than a full stay and often sufficient.

Step 13 — If review is unavailable, preserve it

Get the ruling in writing, with reasoning. Move for clarification if the basis is unstated.
Preserve the objection — interlocutory review does not excuse ordinary preservation.
Renew the objection at the appropriate points: at summary judgment, in limine, at trial, and in post-trial motions.
Make the offer of proof where evidence was excluded.
Build the record on anything that will matter on appeal, while the case is live.

A worked sequence

Tavistock Energy Partners is sued in a putative class action by residential customers alleging systematic overbilling. Eleven months in, the district court certifies a nationwide class of approximately 1.4 million customers under Federal Rule of Civil Procedure 23(b)(3), rejecting Tavistock's argument that individualized questions about each customer's rate plan predominate.

Tavistock's exposure goes from a manageable number to something the board describes as existential.

Day one

Appellate counsel, Amara Bergsson-Ojukwu, is retained the day the order issues — not the following week. Rule 23(f) allows fourteen days, and the petition takes most of them to do properly.

She calendars the deadline immediately and works backward: draft by day eight, client review by day ten, file by day twelve.

She reads the certification order carefully and identifies what the panel will care about:

The order is long and reasoned, which cuts against a manifest-error argument.
It rejects the predominance argument in a single paragraph that does not engage Tavistock's evidence about rate plan variation — which is the vulnerability.
The circuit has not addressed whether variation in contract terms across class members defeats predominance where the alleged misconduct is uniform. That is the unsettled question.

The petition

Twelve pages, structured around three points in this order:

One: the death knell. A certified class of 1.4 million with statutory damages creates settlement pressure that will resolve the case without any merits ruling. Amara does not overstate this — she states the exposure, states the company's financial position, and lets the arithmetic speak. Panels are skeptical of hyperbole and receptive to numbers.

Two: the unsettled question. Whether predominance survives where the alleged conduct is uniform but the contractual terms governing each class member differ. She sets out the split with specificity: two circuits have held one way, one the other, and this circuit has not spoken.

Three: the order's gap. The certification order did not address Tavistock's evidence that class members fall into eleven distinct rate plans with materially different terms. Not "the court erred" but "the court did not engage this record."

What she leaves out: the merits of the overbilling claim; four other rulings Tavistock disliked; and any suggestion that the district judge was careless.

Filed on day twelve. Granted six weeks later.

The stay

Amara moves for a stay the same day the petition is granted, and this is the step that would have been easy to skip.

Without it, discovery continues, the trial date holds, and the appeal may be decided after the case is tried. She addresses the four factors, and the strongest is the second: absent a stay, Tavistock must conduct class-wide discovery across 1.4 million accounts, at a cost of several million dollars, that will be wasted if certification is reversed.

The district court grants a partial stay — class-wide discovery stayed, merits discovery as to the named plaintiffs continues. This is what Amara asked for, having concluded a full stay was unlikely and that asking for one would have produced a denial of everything.

The outcome

Fourteen months later, the court of appeals vacates certification and remands, holding that the district court must address whether variation in rate plan terms defeats predominance and directing a rigorous analysis.

On remand, the district court certifies a narrowed class of approximately 190,000 customers on a single rate plan. The case settles nine months later.

What Amara would say

"Retain appellate counsel on day one, not day nine." Fourteen days is not much, and a petition drafted in three days shows it.

"Three points, in that order." Death knell, unsettled question, and the gap in the order. Adding a fourth would have weakened all three.

"Ask for the stay you can get." A partial stay granted is worth more than a full stay denied.

"Do not attack the judge." The petition never suggests the district court was careless. It says the order did not reach an argument — which is a different thing and is the thing panels act on.

Working with the district court

Interlocutory practice happens while the case continues in front of a judge whose ruling you are attacking, and the relationship matters in a case that will run for years.

Frame the certification request as a compliment, not a complaint. "This is a difficult question on which courts have divided, and the parties would benefit from guidance before investing another eighteen months" is received differently from "this ruling was wrong."

Say expressly that you are not seeking reconsideration. Judges receive certification motions as reconsideration motions in disguise, and stating that you are not asking her to revisit the ruling removes that reading.

Ask the other side to join. Where both parties want the question resolved — and where a controlling question is genuinely close, both often do — an unopposed motion is granted far more often. It also signals to the judge that the request is about efficiency rather than about attacking her.

Do not seek mandamus without considering the relationship. A mandamus petition names the judge as respondent. Even though everyone understands it is a formality, it is an unusual step, and it should be reserved for errors that genuinely cannot be fixed any other way.

If certification is denied, accept it gracefully and preserve the issue. Renewing the request, or appearing aggrieved, costs more than it can possibly gain.

If the appeal succeeds, be careful on remand. A party returning to the district court with an appellate victory should be conspicuously deferential about how the ruling is implemented. The judge retains substantial discretion over everything that follows.

The cost-benefit conversation

Input	Typical
§ 1292(b) certification motion	$20,000–$50,000
Petition for permission	$30,000–$70,000
Full briefing and argument if granted	$150,000–$400,000
Mandamus petition	$80,000–$200,000
Probability of clearing both § 1292(b) gates	Modest
Delay added	9–18 months

Put this in front of the client:

Cost to seek review: $______ Probability of obtaining review: % Probability of reversal if reviewed: % Change in exposure if reversed: $ Expected value: $____ Cost of litigating to judgment under the current ruling: $______ Delay: ____ months — helps / hurts us Recommendation:

And name the non-monetary cost: the district judge now knows you think the ruling was wrong, which may color later discretionary decisions in a case that will run for years.

Handling the appeal once permission is granted

A granted petition produces an appeal with distinctive features.

The record is partial. Unlike an appeal from final judgment, the record consists of what was before the district court on the specific motion. Confirm what is included, and move to supplement early if something necessary is missing.

The question may be narrowed. A court granting permission under 28 U.S.C. § 1292(b) reviews the order, not merely the certified question — but panels frequently indicate that they will address only what was certified. Read the order granting permission carefully; it may define the scope.

Briefing is on the ordinary schedule in most circuits, and the case will be argued like any other. The advantage of having obtained permission does not carry into the merits.

The standard of review is de novo for a pure question of law, which is the only kind that should have been certified. If the appellee argues the question is really discretionary, that is an attack on jurisdiction as much as on the merits, and it should be answered.

Amicus interest is common where the question is genuinely unsettled, and it is worth cultivating. Trade associations and repeat players in the industry frequently have views and resources.

The district court case continues unless stayed. Coordinate: a summary judgment ruling below during the pendency of the appeal can moot it or change its posture.

Remand planning. Think about what happens if you win. A reversal on a controlling question returns the case to the district court, often with substantial proceedings remaining and a judge who has been reversed. Be ready with a proposed schedule and a constructive posture.

If you lose, the ruling is now law of the case with appellate approval, and the issue is unavailable on appeal from the final judgment. This is a real cost of seeking review that clients should understand before the petition is filed: an unsuccessful interlocutory appeal does not merely fail, it forecloses.

Emergency relief

Some rulings cannot wait for the ordinary petition process, and the emergency track has its own conventions.

When it applies: an injunction takes effect tomorrow; documents must be produced Friday; a trial begins Monday; assets will be transferred; a witness will leave the country.

The sequence:

Ask the district court first. A motion for a stay pending appeal must ordinarily be sought below before the court of appeals will entertain it, and the district judge can act fastest. Where seeking it below is impracticable, say so in the appellate motion and explain why.
Call the clerk of the court of appeals. Every circuit has an emergency procedure and a duty judge. The clerk will explain the format, the filing method, and how quickly a ruling can be expected.
Notify opposing counsel. Circuits require it, and a party that seeks emergency relief without notice will be asked why.
File a motion for a temporary administrative stay alongside the substantive motion. An administrative stay simply preserves the status quo while the court considers; it is granted far more readily than a stay pending appeal and is frequently what you actually need.
Be complete but short. Emergency motions are read quickly by a judge with no familiarity with the case. State what will happen and when, what relief is sought, and why the four stay factors favor it — in ten pages, not forty.
Attach everything. The order, the relevant filings, and a declaration establishing the timing.

The four factors, applied under time pressure: likelihood of success; irreparable injury absent a stay; harm to other parties; and the public interest. The second factor carries emergency motions — a concrete, dated, irreversible consequence is what moves a duty judge.

What defeats an emergency motion: delay in bringing it; an inability to explain why the harm is irreversible; a request broader than the emergency requires; and any suggestion that the emergency was manufactured by the movant's own timing.

And a practical note: emergency motions consume enormous resources over a weekend and are frequently denied. Before starting, confirm with the client that the harm genuinely cannot be absorbed. Many can be.

Mistakes that recur

Missing the ten-day § 1292(b) deadline after obtaining certification.

Missing the fourteen-day Rule 23(f) deadline.

Arguing the merits in a certification motion. Ask the judge to agree the question is hard, not that she erred.

Treating "we disagree" as substantial ground for difference of opinion.

Seeking mandamus on a discretionary ruling. It is not a second bite.

Appealing an immunity denial that rested on a factual dispute. No jurisdiction.

Packaging unappealable issues with an appealable one. Swint limits pendent jurisdiction sharply.

Forgetting the stay. The case may be tried before the appeal is decided.

A stipulated judgment that concedes too much, waiving the appeal it was meant to enable.

Not asking for Rule 54(b) findings when a claim or party is dismissed.

Certified questions to state courts

A different mechanism worth knowing, because it addresses a problem interlocutory appeal cannot.

The situation. A federal court sitting in diversity must apply state substantive law. Sometimes the governing state law is genuinely unsettled — no decision from the state's highest court, conflicting intermediate appellate decisions, or a question of first impression.

The mechanism. Most states permit a federal court to certify a question of state law to the state's highest court, which answers it and returns the case. Procedures are set by state rule or statute and vary: some states accept certification only from federal appellate courts, others from district courts as well.

Why it matters here: it produces an authoritative answer rather than a federal court's prediction, and the answer binds. A federal court's Erie guess is not precedent in the state courts and may be wrong.

When to seek it:

The question is outcome-determinative or close to it
State law is genuinely unsettled — not merely unfavorable
The question is likely to recur, which makes the state court more willing to answer
There is time; certification adds six to eighteen months

How to request it: by motion in the federal court, which decides whether to certify. The motion should state the question in a form the state court can answer, explain why state law is unsettled, and explain why the answer is determinative.

Considerations:

The state court may decline. Acceptance rates vary considerably by state.
You do not control the framing once certified; the federal court formulates the question and the state court may reformulate it.
The answer binds — including if it is worse than the federal court's prediction would have been.
It is not an appeal. The federal case remains; only the state law question is answered.

The strategic point: a party facing an unfavorable federal prediction of unsettled state law has, in certification, a route to a different decision-maker that has nothing to do with the interlocutory appeal framework. It is underused and it is sometimes the better answer.

Frequently asked questions

Does an unsuccessful interlocutory appeal hurt us later? It can, in two ways. Substantively, an affirmance on interlocutory review makes the ruling law of the case with appellate approval, and the issue is unavailable on appeal from the final judgment. Practically, the district judge knows you sought review of her ruling, which may color later discretionary decisions in a long case. Both should be named for the client before the petition is filed.

Should we tell the client the odds? Yes, specifically. Most attempts fail at the threshold without any ruling on the merits, and a client who learns that after spending $70,000 will reasonably ask why they were not told. Give the percentage, give the cost, and give the recommendation.

How much does the district judge's view matter to the court of appeals? More than the statute suggests. A certification order that explains why the question is close and why immediate review would help is read as a judicial recommendation, and petitions supported by a reasoned certification fare better than those supported by a boilerplate one. Where the district judge is willing, ask her to explain her reasoning rather than simply reciting the statutory findings.

Can we seek certification of a ruling from months ago? There is no fixed deadline for asking the district court to amend an order to include certification, and courts have granted it well after the original ruling. But delay undercuts the "materially advance termination" element, and a judge asked to certify a question the parties have been litigating around for six months will ask why now.

What if the question is important but the record is undeveloped? That is an argument against certification, not for it. Section 1292(b) is for pure questions of law the appellate court can decide without the record. Where the answer depends on facts not yet developed, the honest assessment is that the case is not ready.

Can I appeal the district court's refusal to certify? No. The statute makes certification the district court's decision, and there is no review of a refusal.

Should I retain appellate counsel? For a mandamus petition or a granted § 1292(b) appeal, yes. These are appellate documents with appellate conventions, and trial counsel who drafted the losing brief below is not always the best author of the petition explaining why the ruling was wrong.

Can I file a protective notice of appeal in case the order is appealable? Yes, and it is sometimes prudent where appealability is genuinely uncertain. A premature notice is generally a nullity rather than a sanctionable act, but check the circuit's treatment.

Does seeking certification toll anything? No. Proceedings continue unless stayed, and the underlying deadlines run.

What if the court of appeals denies permission? The ruling stands and the case proceeds. The issue remains available on appeal from the final judgment if preserved.

Can the parties agree to an interlocutory appeal? Not by themselves. Both the district court and the court of appeals must agree under § 1292(b). But an unopposed certification motion is granted far more often than a contested one.

A decision tree

One page, to run in the week after an adverse ruling.

ADVERSE INTERLOCUTORY RULING — WHAT NOW

1. IS IT APPEALABLE AS OF RIGHT?
   [ ] Injunction granted/denied/modified — 1292(a)(1)
   [ ] Immunity denied on LEGAL grounds
   [ ] Arbitration compelled? NO. Arbitration REFUSED? YES — 9 USC 16
   [ ] Receivership / admiralty
   [ ] Criminal contempt, or civil contempt vs. non-party
   -> YES: file the notice of appeal. STOP.

2. CALENDAR EVERYTHING TODAY
   1292(b) petition: 10 days from certified order  ** JURISDICTIONAL **
   Rule 23(f) petition: 14 days from cert order    ** STRICT **

3. TRIAGE — ALL THREE MUST BE YES
   [ ] Dispositive or nearly so?
   [ ] Legally wrong on a question with a real answer?
   [ ] Otherwise years before review?
   -> ANY NO: preserve the objection and move on.

4. IS A CLAIM OR PARTY FULLY RESOLVED AND SEPARABLE?
   -> Rule 54(b). Easiest route; the judge is not being asked
      to doubt her ruling.

5. IS IT A PURE QUESTION OF LAW WITH A GENUINE SPLIT?
   -> 1292(b). Move to certify; DO NOT argue the merits.
      Ask the other side to join.

6. IS IT A CLASS CERTIFICATION ORDER?
   -> Rule 23(f), within 14 days. Death knell + unsettled
      question + gap in the order.

7. IS THE HARM IRREVERSIBLE AND THE ERROR CLEAR?
   -> Mandamus. Venue, usurpation, rules disregard, recusal,
      exceptional privilege rulings. NOT a second bite at
      discretion.

8. CAN THE CASE BE RESTRUCTURED?
   -> Stipulated judgment on the affected claims. Recite that
      it is made SOLELY under the ruling and preserves all
      arguments.

9. NOTHING AVAILABLE?
   -> Preserve: written order with reasoning; objection renewed
      at SJ, in limine, at trial, post-trial; offers of proof.

10. IN EVERY CASE: SEEK A STAY SEPARATELY.
    Nothing stays automatically except arbitration appeals.

Run this the day the ruling issues. Every route on it has a deadline, and the two that matter most are ten days and fourteen days.

Where to get help

The circuit's local rules and internal operating procedures. These govern the format and content of petitions for permission, mandamus petitions, and emergency motions, and they vary considerably. Several circuits publish practice guides that are more useful than the rules themselves.

The clerk's office. For emergency motions especially, call. The clerk will explain the duty judge procedure, the filing method, the notice requirement, and how quickly a ruling can be expected. This is a five-minute call that prevents a procedural error on a weekend.

Published grant rates and outcomes. Some circuits publish statistics on petitions for permission and mandamus. Where they do, they inform the client conversation honestly.

The district judge's prior certifications. A judge who has certified questions before is a different audience than one who has never done so. Search the docket history.

Appellate counsel. For a mandamus petition or a granted § 1292(b) appeal, a specialist adds real value — these are appellate documents with appellate conventions, and the lawyer who wrote the losing brief below is not always the best author of the petition explaining why the ruling was wrong.

Certification rules for state law questions. Each state's high court publishes its certification rule, its acceptance criteria, and often its acceptance rate. Check before moving; some states accept readily and others rarely.

Colleagues who have done it. Interlocutory practice is uncommon enough that most litigators have done it once or twice. The person in the firm who obtained a § 1292(b) certification last year knows things that are not written down — how the judge received the request, what the panel asked about, and how long everything actually took.

A note on preserving the issue if review is denied

Most requests for interlocutory review fail, and the work is not wasted if the record is built correctly.

Preserve the ruling for the eventual appeal. A denied certification does not affect appealability after final judgment. Make sure the order you sought to certify is a written order with reasoning, that your objection is on the record, and that any evidentiary proffer needed to show prejudice was made.

Watch for waiver by acquiescence. A party that complies with a ruling without objection — producing documents it argued were privileged, for example — may face an argument that the issue is moot or the objection abandoned. State on the record that compliance is under protest and without waiver.

Consider the alternatives you did not use. If § 1292(b) certification was denied, ask whether a Rule 54(b) judgment on a discrete claim is available, whether the collateral order doctrine reaches the ruling, or whether mandamus is warranted on a genuinely usurpative order. These are different vehicles with different standards, and a denial under one says little about the others.

Reassess the case. A denial is information. It usually means the district judge does not regard the question as controlling or genuinely contestable, which is a data point about how the rest of the case will go and how it should be valued.

And keep the certification motion. It is the best short statement of your position on the issue, written when the record was fresh, and it will be the skeleton of the eventual appellate brief.