Drafting a URAP Rule 5 Interlocutory Petition: A Line-by-Line Guide for Utah Practitioners

The strategic question — whether to file an interlocutory petition at all — is addressed in the pillar article on interlocutory appeals in Utah. This article begins where that one ends. You have evaluated the ruling, assessed the standard, and decided to file. Now the question is execution. You have 21 days from entry of the order. Here is what the petition needs to say, how each component should be drafted, and what separates petitions that get read carefully from petitions that get denied on the first pass.

The Petition Is Not a Motion — That Distinction Shapes Everything

Practitioners coming from trial work consistently make the same mistake: they draft the Rule 5 petition as if it were a motion for reconsideration addressed to a higher court. It is not. A motion argues that the court below got it wrong and asks for correction. A petition for interlocutory review argues something categorically different — that the legal question the court addressed is important enough, contested enough, and urgent enough that the appellate court should agree to take it up now, before final judgment, rather than in the ordinary course.

The petition must satisfy the appellate court on the threshold question — should we hear this at all — before it can begin to persuade on the merits. Petitions that skip the threshold and dive straight into arguing the merits read as motion practice. They fail Rule 5 because they never actually address it. That framing distinction should govern every component that follows.

The Statement of Facts

Rule 5(b)(1) requires a statement of the facts necessary to understand the question presented. The operative word is necessary. This is not the facts section of an appellate brief. It is not a narrative of the full case history. It is the minimum context a judge who knows nothing about this case needs to understand the legal question being presented.

Draft it by working backward from the question. What does a reader need to know to understand why this legal issue arises in this case? Those facts go in. Nothing else does. A facts section that runs four pages tells the panel that counsel has not identified what actually matters. A facts section that runs one tight page — with precise record citations — signals that counsel knows the case and knows what this petition is about. Length is itself a signal, and the wrong length sends the wrong one.

Common failures: extensive background on claims unrelated to the interlocutory order; recounting the procedural history of earlier motions; arguing the facts rather than stating them. The facts section of a Rule 5 petition should read like a neutral briefing document. Enough context. Nothing more.

The Question Presented

Rule 5(b)(2) requires a statement of the question to be decided. This is the most important sentence in the petition. It is what the appellate court will use to characterize the case internally. It is what the clerk will use to flag the petition for the panel. It is what the panel will read first.

The question must be legal, not factual. “Whether the district court abused its discretion in weighing the preliminary injunction factors” is factual framing. “Whether a plaintiff seeking a preliminary injunction must demonstrate irreparable harm through non-speculative evidence when the alleged harm consists entirely of lost future revenue” is legal framing. The second version presents a question the appellate court can resolve by clarifying a legal standard. The first asks the court to re-weigh evidence — which it will not do on an interlocutory petition.

The question must be precise. Vague or compound questions signal that counsel has not yet identified the actual legal issue. A petition with three questions presented is usually a petition that has not committed to its strongest argument. Pick one question. Frame it precisely. Build the petition around answering it.

The question should implicitly signal why the ruling involves substantial rights and merits resolution now rather than after final judgment. A well-framed question presents an issue where the answer is not obvious, where the legal standard is genuinely unsettled, or where getting it wrong now causes harm that cannot be remedied later. If the question reads as having an obvious answer, it has not been framed to capture the genuine legal uncertainty that the Rule 5 standard requires.

The Statement of Relief Sought

Rule 5(b)(3) requires a statement of the relief sought. This is the shortest component, but it should be specific. “Reversal of the district court’s order” is less useful than identifying precisely what you want the appellate court to do if it grants review and rules in your favor. If you want reversal and remand with specific instructions, say so. If you want reversal that results in dismissal, say so. The relief statement frames what success looks like and helps the appellate court understand the stakes.

The Reasons for Immediate Appeal — The Heart of the Petition

Rule 5(b)(4) requires a statement of the reasons why an immediate appeal should be permitted. This is where the Rule 5 standard must be directly and specifically addressed. It is also where most petitions are weakest.

Under Rule 5(g), the appellate court will grant the petition if it appears that the order (1) involves substantial rights and may materially affect the final decision, or (2) that determination of the correctness of the order before final judgment will better serve the administration and interests of justice. These are two alternative pathways — not a conjunctive test. A strong petition identifies which pathway applies and makes the argument directly. A petition that satisfies both is stronger still.

On the first pathway — substantial rights and material effect on the final decision: map the causal chain from reversal to outcome. How does reversal affect what happens next? If reversal ends the case, say so explicitly and explain why. If it narrows the case fundamentally, show that. Vague assertions that the appeal will ‘streamline’ the litigation carry no weight. The connection between the ruling and the final outcome must be specific and direct.

On the second pathway — better serving the administration and interests of justice: this is the irreversible-harm argument. Identify the specific harm, explain why it accumulates from continued litigation rather than from an adverse judgment, and explain why post-final-judgment review cannot undo it. For privilege cases, this is direct — disclosure cannot be undone. For immunity cases, articulate precisely why the protection from the burden of litigation is forfeited by continued proceedings. For preliminary injunctions, show the ongoing damage from the wrongly granted or denied order. Do not assume the panel will supply the reasoning. They will not.

In both cases: do not assert the standard is satisfied — demonstrate it. Cite conflicting authority. Identify statutory language that generates genuine interpretive ambiguity. Show the panel the doctrinal tension that makes the question contestable. A petition that says ‘the district court erred’ has not addressed either pathway. A petition that shows why the question is unsettled and why resolution now prevents concrete, irreversible harm has.

The Order and Memorandum Decision

Rule 5(b)(5) requires copies of the interlocutory order and, if separately issued, the memorandum decision. Include clean copies of both. If the district court issued an oral ruling followed by a written order, include both. A common error: including only the minute entry when a formal order has been entered, or vice versa. The appellate court needs the signed order. The minute entry is not the order.

After Filing: Response, Ruling, and What Comes Next

The opposing party has 14 days to file a response — but only if the appellate court requests one. Under Rule 5(f), no response is received unless the court asks for it. In significant cases the court typically does request a response; expect one. The appellate court may rule on the papers alone — which is the most common outcome — request supplemental briefing, or in rare cases schedule oral argument. Most petitions are decided within a few weeks of full briefing.

If the petition is granted, the case proceeds as a standard appeal on a briefing schedule the appellate court sets. The issues on appeal are those identified in the petition — not new issues introduced in the briefs. Frame the petition’s question with that constraint in mind. If the petition is denied, the district court proceedings resume and the issue is preserved for post-final-judgment appeal under Rule 5(e).