Interlocutory appeals are on the rise in Texas state courts. So are mandamus petitions and other types of original appellate proceedings. The opportunity to “go to the booth” for a second look by a court of appeals, like instant-replay review in the NFL, is fraught with strategic implications. Apart from merits review of a challenged ruling, interlocutory proceedings can delay discovery and trial settings. They also can impose additional litigation costs on the opposing party, sometimes even injecting the risk of fee-shifting. When a ticket to early appellate review of an unfavorable trial ruling is available, these factors may make the journey seem irresistible.
While interlocutory review provides an important procedural safeguard that can prevent wasted time and money resulting from a consequential pretrial ruling, it comes at great cost to the efficient operations of courts. A detour from the ordinary progression of a trial court proceeding does not disrupt just that case, but it also impedes the orderly processing of appellate dockets. For every accelerated interlocutory proceeding, there is an equal and opposite effect on the court’s ability to timely resolve ordinary appeals from final judgments. What litigants and courts seem not to fully appreciate is the substantial efficiency gained by promoting well-timed mediations of interlocutory disputes.
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