When Litigation Presents Issue of Key Importance, Try Certification

Any in-house counsel knows there are critical points in ongoing litigation when key legal issues come to the fore that can determine the course of the case. A favorable decision on a key issue may reduce damage exposure or the cost of litigation. But if the company finds itself with an adverse decision—one that leaves issues in the case that should have been disposed of, or expands potential damages—you may begin to think about creative solutions. When you’re in federal court, is there a way to take an immediate appeal, or to get an authoritative answer on a significant state law question?

There are indeed avenues available in these types of situations: certification of an immediate appeal to the federal appellate court under 28 U.S.C. Section 1292, or certification of a state-law question to a state high court. Either type of certification process involves a fair amount of legwork. However, these processes can sometimes be an economical way to cut to the key issues in a case. And, certification may result in a quicker and more definitive ruling than proceeding with the normal federal court litigation process.

Certification of an interlocutory appeal