In his recent post for NC Lawyers Weekly titled “Interlocutory Orders Are Not Written in Stone,” Dan Gibson, a partner at DHW, sheds light on how to handle interlocutory orders effectively without resorting to appeal.

Gibson addresses a common question among lawyers: how to modify an interlocutory order you disagree with. He advises against using Rule 59 or Rule 60 motions for this purpose, noting that these rules apply to final judgments, not interlocutory orders. Rule 59 is particularly misleading because it might seem to extend the time for appeal, but this is not the case for interlocutory orders.

Instead, Gibson points to Rule 54(b) as the appropriate tool, which allows for the revision of any order before final judgment is made on all claims. This rule, mirroring Federal Rule 54(b), offers flexibility but is bound by the law-of-the-case doctrine. He suggests that to succeed in modifying an interlocutory order, one must show an intervening change in law, new substantial evidence, or a clear error leading to manifest injustice.

Gibson also highlights that while trial judges have discretion in modifying these orders, you should be prepared to provide a compelling reason for why the order should be reconsidered. Simply appealing the order might not always be the best route, and he advises always filing a petition for writ of certiorari if you do decide to appeal.

To read more please click here.