Until Cannon rules on the jury instructions, Smith has no grounds for an appeal. That's Smith ace in the hole, getting her to rule so he can go whine to the 11th.However by raising it now, it becomes a pre-trial issue because the Judge issued an order for jury instruction inputs and due to the erroneous interpretation of the law, she has opened herself up for an interlockery appeal and the 11th Circuit baring the action.
The PRA decision is an option for Trump defense to pursue at trial.
FYI- Katie Phang is a legal correspondent and contributor on NBC and MSNBC