Virginia State Court Appeals Have Exploded
The landscape of Virginia appeals has dramatically changed in the last three years. Prior to 2022, most civil cases had to petition the Supreme Court of Virginia for appellate review—meaning, a litigant had to ask for permission to even get an appeal on the docket before the full court.
That has all changed. Now, nearly all cases—criminal, civil, and everything in between—are first appealed to Virginia’s intermediate appellate court, the Court of Appeals of Virginia (“CAV”). Not only can all cases be appealed to the CAV, but litigators no longer have to ask permission to appeal and instead have an automatic right of appeal.
The result has been an explosion in the number of appeals to the CAV, resulting in a crowded and back-logged docket. But what if you can’t wait that long for appellate relief? Fortunately, among these changes, are two new routes to appeal an interlocutory order.
Waiting for the Final Order
Before diving into interlocutory appeals, it is important to understand the ordinary appeals process. Generally, a party cannot appeal from Virginia’s trial courts to the CAV until the trial court enters a “final order.” See Va. Sup. Ct. R. Rule 1:1; 5A:6. A “final order” means the case is over—all claims and pleaded relief have finished.
This often puts litigating parties in a bind. Let’s say, for example, you (erroneously) lost a plea in bar, demurrer, or motion to dismiss on just one of the claims at issue in a lawsuit. A party would then have to wade through all of discovery and trial on any remaining claims for over a year before it could seek an appeal of that erroneous decision. This is where interlocutory appeals come in.
Two Paths, Two Very Different Processes
Virginia provides two main avenues for interlocutory appeals:
(1) to the CAV under Virginia Code § 8.01-675.5 for general matters, or
(2) to the Supreme Court of Virginia under Virginia Code §§ 8.01-626 and 8.01-670.2 for preliminary injunctions and immunity decisions.
Appealing Interlocutory Decisions to the CAV: Flexible but Formidable
Appealing an interlocutory order to the CAV has no subject-matter limitation—any trial court decision on any issue can be appealed. The procedural hurdles, however, are significant. You must first convince the circuit court to certify the order by demonstrating four elements:
- Substantial ground for difference of opinion exists
- No clear, controlling Virginia appellate precedent exists
- The issue is dispositive of a material aspect of the case
- Interlocutory appeal serves the parties’ best interests
Va. Code § 8.01-675.5(A). But even if the circuit court grants certification, the CAV has discretion to accept or reject it. And even if granted, the interlocutory appeal takes no docket priority, meaning resolution can take the normal appellate turn-around time—routinely a year or more.
That being said, there are advantages that make this route worthwhile. First, while the appeal takes no docket priority, a party can still get an appellate decision earlier than waiting for a final order and raising the trial court’s error in the course of normal appeal. Second, both the trial court and the CAV can issue a stay of the active litigation. See Va. Code § 8.01-675.5. This stay can benefit the party seeking to slow down litigation. Third, the CAV’s decision on an interlocutory appeal is appealable to the Supreme Court. By their very nature, CAV interlocutory appeals involve large, unsettled questions of law—interlocutory appeal provides the potential for both appellate courts to weigh in on these novel questions of law while saving the parties the time and expense of full litigation.
Appealing Interlocutory Decisions to the Supreme Court: Limited Scope, Lightning Speed
In stark contrast, an interlocutory appeal at the Supreme Court is simple and quick. After receiving a trial court interlocutory decision, an appealing party may file a petition to the Supreme Court within 15 days, and the opposing party has 15 days thereafter to respond.
The Supreme Court takes it from there. It can issue a decision on those papers alone or order additional briefing and even oral argument. The result? The Court has resolved interlocutory appeals on average within two to four months of a trial court decision. See, e.g., Leggett v. Sanctuary at False Cape Condominium Association, Inc., 303 Va. 128 (2024); Sch. Bd. of Stafford Cnty. v. Sumner Falls Run, LLC, 903 S.E.2d 242, 243 (Va. 2024); but see Newport News School Board v. Z.M., __ Va. __, 915 S.E.2d 56 (2025) (resolving the petition in about seven months after ordering additional briefing and oral argument).
But there’s a catch: this Supreme Court interlocutory appellate process is limited to trial court decisions regarding (1) preliminary injunctions or (2) immunity, including sovereign, absolute, and qualified immunity. Va. Code §§ 8.01-670.2, -675.5. So, if your case involves one of these issues—or an issue determinative of an injunction or immunity—this process is right for you.
The Bottom Line
The CAV interlocutory route suits parties with a genuinely novel legal issue and the time and resources to seek appellate relief. By comparison, the Supreme Court route offers high‑speed decisions for any party on the losing side of an injunction or immunity decision.
In either case, interlocutory appeals offer parties sooner-rather-than-later decisions without having to wait for a final order.
