July 2013 Bar Bulletin
 
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July 2013 Bar Bulletin

Certifying Trial Court Decisions for Review

By Philip A. Talmadge

 

"A trustee shall administer the trust solely in the interests of the beneficiaries."
-RCW 11.98.078(1)

You are trying a case and the court makes a ruling on discovery, the evidence or on a dispositive motion that seriously affects how the case will proceed. You think about an appeal.

In Washington, we have two types of appellate review - review as of right (RAP 2.2), and all other cases (RAP 2.3).1 The issues subject to review as of right are listed in RAP 2.2(a). Review as of right is the easier course because you are before the appellate court essentially automatically. Discretionary review is harder. Under RAP 6.2, you have to demonstrate to the court why your case merits review. Such review is granted in 10% or fewer of the instances in which it is requested.2

As a public policy, Washington law generally disfavors piecemeal appeals.3 But you can improve your chances of obtaining interlocutory review by obtaining from the trial court a certification for appeal as of right under CR 54(b)/RAP 2.2(d) or by certification under RAP 2.3(b)(4).

These mechanisms improve your chances of immediate review even though a final judgment has not been entered. This article explores how to accomplish that objective and also how to resist such interlocutory review.

CR 54(b)

In cases involving multiple claims or multiple parties, if the trial judge determines that a summary judgment order or order of dismissal under CR 12(b)(6) merits immediate review, under CR 54(b) the judge must provide in the order that there is no just reason for delay and an express direction that judgment should be entered. This is not a mechanical finding.

The court must affirmatively find that there is, in fact, some danger of hardship or injustice that will be alleviated by an immediate appeal.4 Factors for finding such hardship or injustice were discussed by the Supreme Court in Schiffman v. Hanson Excavating Co.,5 and include:


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