Congress allows appeals from "final" judgments but seldom other kinds. 28 U.S.C. 1291. An order that rejects most but not all claims on a motion to dismiss, for instance, doesn't count as final. (One to stand while speaking in court or to wear a yellow tie doesn't either.) But what if the ruling requires you to give the other side your deepest secrets?
The Supreme Court held today that almost always you must wait until the case ends before asking an appeals court for help. The Court's almost unanimous thinking?* That the system's need to let trial judges run their cases as they see fit outweighs a party's desire to keep confidences (including notes between lawyer and client) from prying eyes.
Justice Sotomayor wrote that a party may ask for, and sometimes get, midcourse review. A statute (28 U.S.C. 1292(b)), she pointed out, permits district courts to request a court of appeals to rule on a key question of law. Really bad orders may draw mandamus relief, she added. And the party that doesn't want to comply may refuse to, in which case he may receive a lesser sanction (and avoid the thing he hates more) or incur a contempt citation (which he may then appeal right away).
But the "collateral order doctrine", which started with Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 546 (1949), doesn't provide an easier route to interim relief, the Court concluded:
In sum, . . . the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege. Effective appellate review can be had by other means.
Mohawk Industries, Inc. v. Carpenter, No. 08-678, slip op. at 13 (U.S. Dec. 8, 2009).
The decision brings the Court's tally to nine since the Term started. It's also Justice Sotomayor's first opinion as a Justice.
Blawgletter agrees that appeals courts should let trial judges handle their cases and wait until final judgment to fix mistakes. Our gripe? Failing to make rulings at all. Don't judges know that's their number one job?
* Justice Thomas joined the Court's opinion only in part.