What is a Permissive Appeal?

During trial level litigation, the trial court issues various non-final  — i.e., not disposing of the entire case — orders. In most instances, non-final orders cannot be appealed until the trial court disposes of the entire case. When waiting to appeal a non-final judgment or order may be problematic, a party may request that the appellate court consider the non-final judgment in a interlocutory, or permissive appeal.

The court is not required to hear a permissive appeal and, in fact, this type of appeal is highly disfavored. In 2013, for example, the Wisconsin Court of Appeals allowed only 15 of 128 interlocutory appeals to move forward.

Despite this, there are situations in which a permissive appeal would be appropriate. Wisconsin law, for example, indicates that a permissive appeal would be appropriate where it would:

  1. Materially advance the termination of the litigation or clarify further proceedings in the litigation;
  2. Protect the petitioner from substantial or irreparable injury; or
  3. Clarify an issue of general importance in the administration of justice

Wis. Stat. § 808.03(2). Local statutes will determine the procedures and deadlines for requesting a permissive appeal. If granted, a permissive appeal will proceed as though it were a ‘normal’ appeal. Proceedings in the trial court will not be automatically stayed while a permissive appeal is pending, however parties can request such a stay.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).