In many different contexts, a losing party cannot appeal as a matter of right, but may be able to seek leave to take a discretionary appeal. In federal court, these motions include petitions for certiorari to the U.S. Supreme Court; for en banc review; for interlocutory appeal from class certification decisions under Federal Rule of Civil Procedure 23(f); and for leave to take an interlocutory appeal under 28 U.S.C. §1292(b). In New York courts, they include motions for leave to appeal to the Court of Appeals, either directed to the Appellate Division or the Court of Appeals itself.
Petitions for discretionary appeal are unique, specialized forms of appellate advocacy. In most appellate briefing, the end goal is to convince the appellate court to adopt the legal rule favoring your client. But the focus of a petition for leave to appeal is different. Leave to take a discretionary appeal is the exception, not the rule, and the question for the court in each case is not primarily whether the decision appealed from is right or wrong, but whether the case or issues presented for appeal justify expending scarce appellate-court resources. This article provides an overview of common strategies for seeking (and opposing) discretionary appeal.
