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Brief-writing tips: for the Illinois Appellate Court.

An appellate court law clerk offers pointers an insider's view of common brief-writing errors

Anyone can fall victim to one of the common mistakes that the appellate court sees on a regular basis. More often than not, your last chance to be heard will be through your appellate brief. Over 70 percent of cases appealed from the Illinois circuit courts do not reach the Illinois Supreme Court. (1)

Don't think your oral argument is more important or will have more impact than your brief because (1) oral arguments may not be granted in your case, and you will not find out either way until after your brief is filed, (2) you may not raise arguments that do not appear in your brief at oral argument, and (3) you might not be able to make the oral argument you intended because of the panel's course of questioning. While oral arguments can have an impact, it makes better sense to spend more time and effort on the brief.

The first thing to do before beginning work on your appellate brief is review the Illinois Supreme Court Rules that address the topic (SCRs 301 through 375). (2) Remember the Illinois Supreme Court's admonition in Bright v Dicke: "The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." (3)

Even experienced practitioners should review the rules for changes. Pay special attention to SCR 341, which requires that the brief contain key sections, including (1) a cover and index containing points and authorities, (2) an introduction that explains the nature of the action and the judgment appealed upon, (3) a jurisdictional statement, (4) the standard of review, (5) a statement of facts, (6) an argument, (7) a short conclusion including the requested relief, and (8) an appendix.

Dos and don'ts for the most important sections of an appellate brief are discussed below. Unfortunately, many common brief-writing mistakes represent a failure to follow the most basic rules.

The statement of jurisdiction

SCR 341 requires that the appellant include a brief statement of jurisdiction setting forth the supreme court rule or other law that confers jurisdiction upon the reviewing court, the facts of the case that bring it within the rule, the date that the order being appealed was entered, and any other facts necessary to demonstrate timeliness of the appeal. Because the lack of jurisdiction is fatal to an appeal, perhaps the single most important step in writing an appellate brief is the jurisdictional statement.

Time limits. The notice of appeal in civil cases, governed by SCR 303, vests jurisdiction in the appellate court. Under SCR 303(a), a party generally must file an appeal no more than 30 days after the entry of a final order. (4) SCR 303(a) also provides that the timely filing of a motion directed against the judgment defers the running of the 30 days, and the time for filing a notice of appeal is then 30 days from the resolution of the last timely and proper postjudgment motion. (5) In other words, a postjudgment motion extends the time for filing a notice of appeal.

Multiple claims. If multiple claims for relief are involved, SCR 304(a) applies, which is intended to discourage piecemeal appeals. SCR 304(a) provides that an appeal may be taken from a final judgment as to one or more but fewer than all of the claims if the trial court has made an explicit written finding that no just reason exists for delaying either enforcement or appeal. (6)

Rule changes. Be sure to check that the rule conferring jurisdiction has not been amended. For example, until recently, a premature notice of appeal did not confer jurisdiction on the appellate court. (7) On May 1, 2007, SCR 303(a) was amended to save appeals that would otherwise be premature by providing that when a timely postjudgment motion has been filed, a notice of appeal filed before the final disposition of any separate claim does not become effective until the order disposing of the separate claim is entered. (8)

Also, the timing of an amendment may raise questions of retroactivity. For instance, if an amendment affecting jurisdiction is passed during the pendency of your appeal, be prepared to provide supplemental briefing on this issue. On an appeal, the appellate court must decide the case in accordance with the law as it currently exists unless the law affects the vested rights of the parties. (9)

Variation among appellate districts. Research how the appellate district in which the appeal is filed interprets SCRs 303 and 304. Lately, the various districts have not always agreed on how these two rules mesh, and an entire article could be devoted to this subject.

As one court has noted, what constitutes an individual "claim" under SCR 304(a) is a "somewhat amorphous concept." (10) In particular, there is a conflict between the first and second districts about whether a SCR 304(a) certification is required to separately appeal an order disposing of postdissolution matters, where at the time of such order's entry other postdecree matters remain pending. (11) It is also unclear how these two rules will affect matters outside the postdissolution context.

Does jurisdiction exist? The appellee's first response to an appeal should be to double-check whether jurisdiction exists. In a rush to address the merits, many appellees waste time, money, and resources filing a lengthy brief when the entire case could have been resolved by filing a motion to dismiss for lack of jurisdiction. (12) All too often, neither party considers jurisdiction an issue, and the arguments are fully briefed, only to have the appellate court dismiss the appeal based on a lack of jurisdiction. (13) Recognize that jurisdiction is a shaky foundation that could crack at any time.

Standards of review

SCR 341 also requires that the appellant include a concise statement of the standard of review for each issue. In fact, you should structure your argument and research based on the appropriate standard of review.

The most common standards of review in the appellate court are "de novo," "abuse of discretion," and "manifest weight of the evidence." Of these, the least deferential is de novo review, under which the appellate court reviews the issue independently. This applies to pure questions of law, such as statutory interpretation, (14) contract interpretation, (15) motions to dismiss, (16) and motions for summary judgment. (17)

While the appellate court does not defer to the trial court's ruling on questions of law, it does defer on subjects where the trial court has wide latitude in fashioning a remedy or issuing a ruling. Under the abuse of discretion standard, the appellate court will not disturb the trial court's ruling unless it is arbitrary or fanciful or if no reasonable person would arrive at the same conclusion. (18) That standard applies to, inter alia, the admission of evidence, (19) a defendant's sentence, (20) the division of marital property, (21) and attorney fee. (22)

The manifest weight of the evidence standard is also deferential. It typically applies to factual findings, because the factfinder is in the best position to determine witness credibility, weigh the evidence, and draw inferences from the evidence. (23)

A finding is against the manifest weight of the evidence if the opposite conclusion is clear from the record or if the finding is unreasonable, arbitrary, and without a basis in the evidence. (24) The reviewing court uses a manifest weight of the evidence standard to review, among other things, a jury verdict, (25) a trial court's determination of a child's best interest, (26) and a trial court's award of compensatory damages. (27)

An appellee confronting de novo review should not rely exclusively on the trial court's reasoning. This may seem counterintuitive, because the trial court's reasoning resulted in its decision to rule in the appellee's favor in the first place. However, trial courts have been known to make rulings on questionable grounds or misinterpreted law. Even without such "red flags," the appellate court may decide that the trial court's reasoning is legally incorrect. With de novo review, the appellate court may affirm the trial court's ruling on any basis supported by the record, regardless of the trial court's reasoning. (28) Accordingly, appellees should provide multiple bases for affirming the trial court's decision.

The statement of facts

SCR 341 provides that the statement of facts "contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal."

Choosing a format. You must include all relevant facts and state them in a logical manner. Depending on your issue, a chronological format (factual and procedural events told in the order of occurrence), procedural history format (telling the story as it played out in court procedurally), or a separate factual and procedural format (separating the factual from the procedural events) may be best.

Your objective is to make sure the readers, who include appellate court justices and their clerks, understand how the case arose in the trial court, what happened there, and what issues you are raising on appeal. Keep in mind that your readers have not yet read the record.

For instance, a detailed account of each status call or hearing may not be necessary in an appeal of a damages award. However, dates and details on status calls or hearings are highly relevant in a case involving a speedy trial violation.

Bad facts. Avoid the temptation to hide a bad fact. The court will not be favorably impressed.

An egregious example is a recent unpublished custody case. There, the biological father appealed an order terminating his parental rights and awarding the minor child to the Department of Children and Family Services. The appellant's brief mentioned that the father was in the "county jail" and the child's mother passed away.

That the father was imprisoned for murdering the mother came out in the appellee's brief. While this was a bad fact for the father's case, it was not the sole determinant of the outcome. But the attempt to hide the fact hurt the appellant's credibility, something the prosecution pointed out repeatedly.

The argument

The argument is the meat and potatoes of the brief. Devote ample time to writing this section. Explain why the appellate court should accept your version of the law or facts. SCR 341(h)(7) states that the argument
 shall contain the contentions of the appellant
 and the reasons therefore, with
 citation of the authorities and the pages
 of the record relied on. Evidence shall not
 be copied at length, but reference shall be
 made to the pages of the record on appeal
 or abstract, if any, where evidence may be
 found. Citation of numerous authorities in
 support of the same point is not favored.
 Points not argued are waived and shall not
 be raised in the reply brief, in oral argument,
 or on petition for rehearing.


Cite and discuss relevant case law. Simply stating the issue, without more, may cause the court to waive your issue entirely. Analyze comparable or distinguishable cases to the facts of your case. Even if the court addresses your issue, you have lost the opportunity to persuade the court to apply favorable law to your case if you fail to discuss the cases. (29)

Explain to the court how your case is similar or different to the leading cases by comparing and contrasting key facts and explaining why the authority should apply in your favor. And do not relegate key points of your argument in a footnote. (30)

Avoiding adverse cases that are clearly applicable to your issue is unethical. It is also bad strategy to avoid discussing adverse cases because your opponent, or the court based on its own research, certainly will. At that point, you have lost credibility and wasted your chance to explain your point of view on the matter.

In one recent unpublished case, the appellant cited to a case or its outcome. The appellees, however, pointed out at great length that the cited case which involved the appellant's attorney, the same appellee, and the same issues as the present case, was directly on point and had been decided in favor of the appellee. The appellant lost his credibility, wasted his opportunity to address the nuances of the two cases, and allowed his opponents to extensively discuss the applicability of the cited case and appellant's noticeable omission.

Narrow the issues. Before you spend your time and your client's money writing an appellate brief, take the time to cull weak arguments. When you throw in the kitchen sink, your stronger arguments are diluted and you waste your and the readers' time.

That said, be sure not to omit important points and issues. Points not argued are waived and may not be raised in the reply brief, at oral arguments, or in a petition for rehearing.

Headings. When it comes to the headings on your argument, let's start with what not to do.
 DO NOT MAKE THE HEADING A
 LONG RUN-ON SENTENCE CONTAINING
 EVERY ARGUMENT,
 FACT, AND RELEVANT CASE YOU
 DISCUSS BECAUSE THE TEXT,
 NOT THE HEADING, SHOULD
 CONTAIN THOSE THINGS AND
 THE HEADING SHOULD SIMPLY
 INTRODUCE THE DETAILED INFORMATION
 SO DO NOT PACK
 YOUR ARGUMENT INTO A LONG
 BOLDFACED AND UNDERLINED
 AND ALL-CAPITAL-LETTERED
 SENTENCE THAT IRRITATES
 THE VERY READER WHO IS DECIDING
 YOUR APPEAL.


Instead, consider using an outline approach. Here's an example. The argument is that the trial court abused its discretion in three of its rulings on evidentiary issues by improperly admitting witness John Doe's testimony, improperly barring expert testimony, and improperly admitting a prior conviction.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN THREE EVIDENTIARY RULINGS

A. Testimony of John Doe

B. Testimony of Expert Witness

C. Prior Conviction

Or, you could introduce a multiple-issue argument this way.

I. ARGUMENT

A. The Trial Court Abused its Discretion in Three Evidentiary Rulings

1. Testimony of John Doe

2. Testimony of Expert Witness

3. Prior Conviction

B. Improper Closing Arguments Made by Prosecutor Require Reversal

C. Defendant was Denied Effective Assistance of Counsel

Reply briefs and motions

Two overused appellate-practice devices are reply briefs and motions. Under SCR 341(j), the "reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of the appellee." (Emphasis added.) Therefore, the purpose of the reply brief is not to rehash arguments already addressed in the appellant's brief, raise new arguments" or to make emotional pleas or personal attacks against the appellee. A reply brief is often unnecessary unless the arguments raised in the appellee's brief require a response.

The court has seen an increase in motions filed pursuant to SCR 341(h) attacking the opponent's statement of facts and argument. In some instances, a party recites an opponent's statement of facts verbatim and asks the court to strike all or a large portion of it.

These motions are rarely granted. Still, attorneys expend valuable resources filing them and force the appellate court to wade through pages of requests that have virtually no chance of success. After much time and effort, the court often dispenses with the motions in a sentence or paragraph. (32)

Subjecting the appellate court to numerous motions dilutes the arguments presented in the briefs, and excessive motions unnecessarily delay in resolving the appeal. For more, read Justice Easterbrook's cogent discussion in Custom Vehicles, Inc v Forest River, Inc on why motions to strike are "unnecessary," "pointless," and "never granted." (33)

Serious business

Brief writing is serious business, and the stakes for you and your client are high. Take care to follow the supreme and other court rules and, just as important, the rules of good advocacy and common sense.

(1.) J. Timothy Eaton, William R. Quinlan, and Robert L. Stern, Resolving Conflicts in the Illinois Appellate Court, 78 Ill Bar J 182 (1990).

(2.) 210 Ill 2d Rs 301-375.

(3.) 166 Ill 2d 204, 210, 652 NE2d 275, 277-78 (1995).

(4.) In re Estate of Russell, 372 Ill App 3d 591, 594, 866 NE2d 604, 607 (2d D 2007).

(5.) Id.

(6.) In re Estate of Stark, 374 Ill App 3d 516, 522, 872 NE2d 1011, 1016 (4th D 2007).

(7.) In re Marriage of Gaudio, 368 Ill App 3d 153, 158, 857 NE2d 332, 335 (4th D 2006).

(8.) 210 Ill 2d R 303(a)(2), eff May 1, 2007.

(9.) McGinley v Madigan, 366 Ill App 3d 974, 981, 851 NE2d 709, 716 (1st D 2006).

(10.) Stark at 523, 872 NE2d at 1017.

(11.) In re Marriage of Ehgartner-Shachter, 366 Ill App 3d 278, 284, 851 NE2d 237, 243 (1st D 2006).

(12.) CE Design, Ltd v Mortgage Exchange, Inc, 375 Ill App 3d 379, 872 NE2d 1056 (2d D 2007).

(13.) People v Trimarco, 364 Ill App 3d 549, 550, 846 NE2d 1008, 1010 (2d D 2006).

(14.) In re Jamie P., 223 Ill 2d 526, 532, 861 NE2d 958, 962 (2007).

(15.) Avery v State Farm Mutual Automobile Ins Co, 216 Ill 2d 100, 129, 835 NE2d 801, 821 (2005).

(16.) Hadley v Illinois Dept of Corrections, 224 Ill 2d 365, 370, 864 NE2d 162, 165 (2007) (CCP [section] 2-615 motions); DeLuna v Burciaga, 223 Ill 2d 49, 59, 857 NE2d 229, 236 (2006) (CCP [section] 2-619 motions).

(17.) Dept of Public Health v Wiley, 218 Ill 2d 207, 220, 843 NE2d 259, 267 (2006).

(18.) People v Anderson, 367 Ill App 3d 653, 664, 856 NE2d 29, 38 (1st D 2006).

(19.) People v Wheeler, 226 Ill 2d 92, 132, 871 NE2d 728, 750 (2007).

(20.) People v Hauschild, 226 Ill 2d 63, 90, 871 NE2d 1, 16 (2007).

(21.) In re Marriage of Hubbs, 363 Ill App 3d 696, 699-700, 843 NE2d 478, 482-83 (5th D 2006).

(22.) Grate v Grzetich, 373 Ill App 3d 228, 231, 867 NE2d 577, 579 (3d D 2007).

(23.) Best v Best, 223 Ill 2d 342, 350-51, 860 NE2d 240, 245 (2006).

(24.) Lyon v Dept of Children & Family Services, 209 Ill 2d 264, 271, 807 NE2d 423, 430 (2004).

(25.) York v Rush-Presbyterian-St. Luke's Medical Center, 222 Ill 2d 147, 178-79, 854 NE2d 635, 652 (2006).

(26.) In re Marriage of Matchen, 372 Ill App 3d 937, 946, 866 NE2d 683, 691 (2d D 2007).

(27.) Bell Leasing Brokerage, LLC v Roger Auto Service, Inc, 372 Ill App 3d 461, 473, 865 NE2d 558, 568 (1st D 2007).

(28.) Id at 469, 865 NE2d at 566.

(29.) People v O'Malley, 356 Ill App 3d 1038, 1045, 828 NE2d 376, 382 (2d D 2005); Huff v Enterprise Rent-A-Car Co, 307 Ill App 3d 773, 777, 718 NE2d 235, 238 (4th D 1999).

(30.) Lundy v Farmers Group, Inc, 322 Ill App 3d 214, 218, 750 NE2d 314, 318 (2d D 2001) (appellate court, on its own motion, struck the defendant's footnotes because they contained substantive material that should have been included in the body of the brief, and such inclusion would have caused the brief to violate page restrictions).

(31.) The Film & Tape Works, Inc v Junetwenty Films, Inc, 368 Ill App 3d 462, 471, 856 NE2d 612, 621 (1st D 2006).

(32.) People v Niezgoda, 337 Ill App 3d 593, 595, 786 NE2d 256, 258 (2d D 2003).

(33.) 464 173d 725 (7th Cir 2006).

Maria Pellegrino

Maria Pellegrino (mpellegrino@court.state.il.us) of Chicago graduated from Chicago-Kent College of Law and is a law clerk to Justice John J. Bowman in the Illinois Appellate Court, Second District. Michele Slupinski and Anjali Huff, also clerks to Justice Bowman, contributed to this article.
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Author:Pellegrino, Maria
Publication:Illinois Bar Journal
Date:Aug 1, 2008
Words:3290
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