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Recently we covered the basics of interlocutory appeals to a single justice of the Massachusetts Appeals. Court. Here are some thoughts on how you can improve your chances of obtaining review:

  • Highlight why the issue presented is an important one not only for your case, but for other pending cases, or the development of the law generally, the administration of the court system, state government, or the general public. The single justice is more likely to give your petition serious consideration if the issue presented is not limited to a possible error in one case. But don’t oversell the importance of your case or the issue – the court will see through that.
  • Explain why an appeal from a final judgment would be inadequate. As a practical matter, why can’t your client wait until after a trial or other final judgment for appellate review? Would the issue you are seeking review of now be likely to be considered on a regular appeal? What harm has been caused by the order you are seeking review of? Can that harm be effectively remedied by a regular appeal, which may not occur until years later?
  • Keep your brief and appendix short. The brief is limited to 15 pages, but keep it shorter if you can, and only ask for more pages in an extraordinary case. If you can’t explain concisely why the issue is sufficiently important and the trial court’s decision so wrong that it requires correction now, think it all through again and rewrite it. The appendix should contain only what is necessary to decide the issue, certainly not the entire set of papers filed in the case. The more pages you present, the less likely it is that a busy judge will review your papers carefully.
  • In appropriate cases, consider asking the single justice to simply grant leave for an interlocutory appeal to a full panel of the Appeals Court, rather than deciding the issue himself or herself. This may be more appropriate where you are seeking to appeal a pure question of law.

Ultimately, you want your petition to stand out among the crowd. The goal is to convince the single justice why the issue you are presenting is sufficiently important, and why the trial court’s order is sufficiently outside the scope of proper judicial decisionmaking that the single justice should step in. Every trial judge makes mistakes, and the mere fact that there was a mistake in judgment may not be enough, unless the mistake is going to cause serious harm and would be difficult to correct later.

Photography by Rachaelvoorhees, some rights reserved.

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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Appellate Team. Wystan is admitted to practice in Massachusetts, Connecticut, and New York, the U.S. Supreme Court and various federal courts of appeals. He has briefed and argued appeals in the Massachusetts Supreme Judicial Court and…

Wystan Ackerman is a partner in Robinson+Cole’s Appellate Team. Wystan is admitted to practice in Massachusetts, Connecticut, and New York, the U.S. Supreme Court and various federal courts of appeals. He has briefed and argued appeals in the Massachusetts Supreme Judicial Court and Appeals Court, has successfully petitioned the SJC for further appellate review, and has also litigated interlocutory appeals before the Single Justice of the Appeals Court. He takes pride in writing briefs that are succinct and compelling, and preparing thoroughly for oral arguments. Wystan is often asked by his colleagues to serve as a “moot court” judge in practice arguments.

Wystan has also handled matters in the Supreme Court of the United States. He successfully petitioned the Supreme Court to grant certiorari in Standard Fire Insurance Company v. Knowles, 133 S. Ct. 1345 (2013), in which the Court unanimously rejected a plaintiff’s attempt to evade federal jurisdiction by stipulating that the amount sought would not exceed the $5 million threshold under the Class Action Fairness Act.

Wystan’s appellate practice is national in scope. Many of his appeals have involved class action and insurance cases. He has served as appellate counsel in the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Eighth and Eleventh Circuits, as well as in various state appellate and supreme courts. Wystan also regularly files amicus curiae (friend of the court) briefs in federal and state appellate courts. He currently chairs the Appellate Section of the Federation of Defense and Corporate Counsel (FDCC). Wystan has been listed as a Second Circuit Litigation Star in Benchmark Appellate (2013) and is listed in Benchmark Litigation (2013-2015).

Wystan received his B.A., summa cum laude, in Government and Legal Studies from Bowdoin College, where he was a member of Phi Beta Kappa. Wystan received his J.D. from Columbia Law School, where he was a James Kent Scholar and a member of the Columbia Law Review.