When Discretionary Review Is Worth the Fight
A single trial court ruling can force disclosure of trade secrets, certify a class action, impose crippling sanctions, or halt business operations overnight.
But what if the ruling isn’t “final”? Are you simply stuck with it until the entire case ends?
Not necessarily.
In Washington, businesses may seek discretionary review—sometimes called an interlocutory appeal—when a trial court’s non-final order causes serious harm that cannot wait for final judgment. While appellate courts grant discretionary review sparingly, in the right case it can dramatically shift the litigation landscape.
What Is Discretionary Review in Washington?
Under Washington Rule of Appellate Procedure (RAP) 2.3, a party may petition the Court of Appeals to review a non-final order when specific conditions are met.
Generally, discretionary review may be granted when:
- The trial court committed obvious or probable error that substantially affects the case;
- The order substantially alters the status quo or limits a party’s ability to proceed;
- The ruling renders further proceedings useless; or
- Waiting until final judgment would cause irreparable harm.
Unlike a standard appeal after final judgment, discretionary review is not automatic. It requires persuading the appellate court that immediate intervention is justified.
The standard is demanding—but it is not unreachable.
When Should a Business Consider an Interlocutory Appeal?
Most adverse rulings do not justify immediate appellate intervention. In many cases, waiting for final judgment is the most efficient strategy.
However, certain trial court decisions are so disruptive—or so strategically damaging—that waiting is not realistic.
Common examples include:
- Compelled Disclosure of Trade Secrets
Once confidential information is disclosed, the damage cannot be undone. If a trial court orders production of proprietary data, discretionary review may be the only meaningful protection.
- Class Certification Orders
Class certification can transform an ordinary dispute into a bet-the-company case. The resulting settlement pressure often increases exponentially, regardless of the underlying merits. Seeking discretionary review can significantly alter leverage early in the litigation.
- Severe Discovery Sanctions
Sanctions that strike key defenses, exclude critical evidence, or otherwise cripple a company’s litigation posture may warrant immediate appellate scrutiny.
- Preliminary Injunctions
Orders that halt operations, freeze accounts, or mandate costly compliance measures can inflict immediate operational harm. In some cases, waiting for trial is not viable.
In each of these scenarios, the core question is not simply whether the court erred—it is whether the business impact is so significant that delay would cause lasting damage.
The Strategic Calculation
Seeking discretionary review involves both legal and business risk.
First, most petitions are denied. Preparing the petition requires time, resources, and careful framing.
Second, strategic consequences matter. A denied petition may embolden the opposing party. A granted petition, by contrast, can reset settlement dynamics, narrow issues, or end the case entirely.
Discretionary review is not about appealing every unfavorable ruling. It is about selecting the moments where the stakes justify early appellate intervention.
Is Discretionary Review Worth Considering? Ask These Questions:
- Does the ruling expose confidential or proprietary information?
- Does it eliminate a core defense or claim?
- Does it materially increase settlement pressure?
- Would reversal significantly change the litigation posture?
- Is the harm irreparable if review waits until final judgment?
If the answer to several of these is yes, an interlocutory appeal may deserve serious evaluation.
Why Early Appellate Strategy Matters
One of the most common mistakes businesses make is treating appeals as an afterthought. Appellate issues are often shaped—and preserved—at the trial court level.
The window to seek discretionary review in Washington is short. Failing to act promptly can eliminate the option entirely.
At Tomlinson Bomsztyk Russ, we view discretionary review as a strategic business decision, not just a procedural maneuver. We assess:
- The likelihood of meeting RAP 2.3 standards;
- The broader litigation and settlement implications;
- The operational and financial impact on the company; and
- Whether immediate review strengthens or weakens long-term positioning.
Our focus is not simply whether an order is wrong—but whether challenging it now advances the client’s business objectives.
Sometimes, Appealing the “Unappealable” Is the Right Move
Trial courts do not always get it right. And some rulings simply cannot wait until the end of litigation.
Discretionary review in Washington is rare by design. But when a non-final order threatens long-term business interests, early appellate intervention can protect leverage, reduce risk, and in some cases change the outcome of the case entirely.
If your company is facing a disruptive trial court order, do not assume you must wait for final judgment. The opportunity to seek discretionary review is time-sensitive.
Contact Tomlinson Bomsztyk Russ to evaluate whether an interlocutory appeal or petition for discretionary review makes strategic sense for your business.