Ten Tips to Improve Your Case on Appeal
A reviewing court can be an intimidating place, especially for the occasional appellate practitioner. Here are ten practical tips to put you at ease and strengthen your case.
Illinois is home to not only a talented group of reviewing-court judges, but also some procedural quirks that may be unfamiliar to the occasional appellate practitioner. With that in mind, here are 10 practical tips on various issues – some critical and some subtle – to improve one’s chances in an Illinois reviewing court prior to the oral-argument stage.
1. Standard of review is the key
The success of many, if not most, appeals rises and falls on the standard of review. Yet many practitioners fail to adequately develop an argument for the standard that best serves their appeal, while others entirely fail to identify an appropriate standard.
Identifying the appropriate standard of review should be a practitioner’s first task, and it should be considered before the notice of appeal is even filed. Most reversals occur on questions of law that are reviewed de novo, meaning no deference is given to the trial court’s ruling.
A prospective appellant who cannot persuasively argue that de novo review is appropriate might want to reconsider the appeal. Other standards of review, such as “clearly erroneous,” “abuse of discretion,” or “contrary to the manifest weight of the evidence” are more difficult for an appellant because they trigger deference to the trial judge. Trial judges are rarely found to have abused their discretion, and findings of fact are seldom contrary to the manifest weight of the evidence.
Conversely, an appellee should always push hard for a standard of review that defers to a trial judge’s ruling. This is especially true when the trial judge makes credibility determinations or other factual findings that are not typically overturned.
Finally, remember that an appeal with multiple issues might involve multiple standards of review. Thus, if a favorable standard of review cannot be established for the case as a whole, consider whether a favorable standard applies for particular issues.
Similar concerns apply to petitions for leave to appeal (PLAs) filed with the Illinois Supreme Court. Of the thousands of PLAs filed every year, the ones most commonly accepted involve de novo review. Specifically, the Illinois Supreme Court is primarily interested in issues of great legal importance, cases involving a conflict between appellate panels, cases requiring exercise of the court’s supervisory authority, and cases of a unique nature.1 PLAs raising challenges to credibility determinations, discretionary rulings, or factual findings are often denied.
Thus, a divorce litigant who files a PLA contending that the trial judge abused her discretion in setting spousal maintenance might be wasting time and money, as might the criminal defendant who contends that the trial judge erroneously believed the victim’s testimony. Such cases are rarely accepted.
2. Improve your appendix
An appellant’s brief must include, as an appendix, a copy of the order under review, an index to the record on appeal, any materials that form the basis for the underlying ruling, and other items enumerated by rule.2 Many appellants fail to satisfy this requirement, possibly because they don’t grasp its practical purpose.
If an appeal involves an important document (such as a contract, will, lease, or insurance policy), it should be appended to the brief because the record on appeal is sent only to the authoring justice’s chambers. Unless another justice specifically asks to see it, it might stay there until after the ruling is issued.
For example, in the first district, it’s unlikely the record on appeal will be shuffled up and down the hallway so that each member of the three-justice panel can examine it. In the other appellate districts, where justices’ offices could be hundreds of miles apart, three-judge review of the full record is even less likely. In a case before the seven-member Illinois Supreme Court, that bulky record containing the smoking gun document is probably not going to be shipped from Chicago to southern Illinois and all points in between.
The Illinois reviewing courts are moving toward an electronic record transfer system, but that program has not been fully implemented. Accordingly, include critical items in the appendix. Be careful, though – if a document is not part of the official record, attaching it to a brief is improper.3
Regardless, attaching a key document to an appellate brief gives the reviewing court immediate access during oral argument, which cannot be said for an electronic copy. Good appellate lawyers must ensure that important documents are in the record on appeal and the appendix.
3. Untimely notice of appeal? There’s still hope
Generally, a notice of appeal under Rule 303 must be filed “with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from.”4 Too often, practitioners file their notice late, either unwittingly or perhaps hoping neither the court nor the appellee will notice.
Make no mistake, an untimely notice of appeal is almost always discovered. The court might discover it immediately and dismiss an appeal on its own motion, or it might find out only after the attorneys have spent countless hours (and clients’ dollars) briefing and arguing the appeal.
But tardiness is not always fatal. Even a litigant who fails to exercise the absolute right to file a Rule 303(a) appeal within 30 days may request leave to file a late notice of appeal.5 Such motions must present a reasonable excuse and be filed within 30 days of the original deadline (i.e., 60 days from the original ruling). Analogous provisions exist for criminal appeals, which the state used in its appeal in the Drew Peterson case.6
The rules likewise provide a procedure to file untimely PLAs in the Illinois Supreme Court.7 Thus, an attorney representing an appellee may be wise to avoid filing a motion to dismiss an untimely appeal until 60 days have passed since the appealable ruling, because doing so alerts the appellant to the problem while a cure remains possible.
4. Consider a stay or expedited appeal
Many litigants incorrectly conclude that filing an appeal is all it takes to preserve their rights on appeal. Unfortunately, they often ignore the importance of seeking a stay in the trial court, the appellate court, or both. The failure to seek a stay may result in a case being rendered moot, or perhaps in a pyrrhic victory with no chance of substantive relief.
One example is In re Tekela,8 which involved a mother whose parental rights were terminated. She filed a notice of appeal but did not seek a stay, thereby permitting her children to be adopted during the pendency of the appeal.
Eventually, the first district entered an order reversing the termination. Shortly thereafter, however, the appellate court learned for the first time that the children had already been adopted and living with a new family for roughly a year and a half.
On further appeal, the Illinois Supreme Court held that since Illinois law requires any attack on an adoption to be made within a year, and because the mother did not seek a stay of the termination order, the mother’s appeal was rendered moot. The court also noted that the mother could have, but did not, request that the case be placed on an accelerated docket9 and be given an expedited briefing schedule.10
Subsequent changes to the Supreme Court Rules addressed several of the issues in Tekela, but the changes generally pertain only to children and parental rights. Appellants in other cases should still consider whether a request for a stay or expedited review is necessary.
Practitioners should be aware of some twists on this topic in the context of interlocutory appeals. For example, discretionary interlocutory appeals taken under Rule 306 impose an automatic stay of trial court proceedings.11In other contexts, an interlocutory appeal generally does not divest a trial court of all jurisdiction or serve as a stay, but it does restrain the trial court from entering orders that change or modify the order under appeal.12Finally, if a stay is not possible or practical, consider requesting an expedited briefing schedule or an accelerated docket.13
5. No court reporter? No problem (maybe)
The appellant bears the burden of presenting the appellate court with a sufficient record for review, and the absence of an adequate record severely undermines the appellant’s case.14 Accordingly, an attorney who conducts an important hearing without a court reporter commits a serious mistake.
Nonetheless, if the parties can agree and stipulate as to what was said in open court, they can file an agreed statement of facts.15 If they’re unable to do that, a litigant may file a “bystander’s report.”16 This requires a person who was present to accurately memorialize the testimony. This person may be, for example, a party or the witness.
The bystander’s report must be served on all parties within 28 days after the notice of appeal is filed. Additional deadline requirements exist for proposed amendments to the report, and eventually it must be presented to the trial judge who heard the case.
The trial judge will then resolve any disagreements over whether the bystander’s report accurately memorializes the testimony, and then certify the bystander’s report so that the appellate court can consider it. While this is an imperfect and difficult process that has a higher risk of error than a verbatim transcript, it is better than presenting the reviewing court with no record of proceedings.
6. Understand that a brief is a critical opportunity
In some appellate districts, draft rulings are prepared by the justice or her law clerks and provided to the panel in advance of oral argument. In others, a clerk prepares a “bench memo” in advance of oral argument that sometimes resembles a ruling except instead of saying something like “the court finds…,” it says “the court should find.…” Assuming the memo is adopted by the authoring justice and other panel members, it is converted into a formal opinion. Of course, if the authoring justice or panel is not comfortable with the contents of the draft opinion or bench memo, it will be modified before being issued as a final opinion. The Illinois Supreme Court follows a different procedure, and practices may vary from one reviewing-court judge to another.
The existence of these documents (whether in the form of a draft opinion or a bench memo) underscores the importance of the parties’ written briefs. These documents are prepared by the justices’ law clerks prior to oral argument, justices give fair consideration to their clerks’ analyses, and these documents are the foundation for a final opinion. That said, I do not suggest that oral argument is unimportant or secondary; in fact, some judges place great emphasis on oral argument, and sometimes draft rulings are changed significantly in reaction to it.
Nonetheless, an appellate brief is the first and best opportunity to make your case. If you have a critical point to make, don’t save it for oral argument. Indeed, many cases are not orally argued. A party must request it, and the requests are not always granted.
Finally, appellants should take full advantage of their reply brief. Reply briefs are an opportunity to attack the appellee’s arguments and obtain the last word. They should not be used to merely regurgitate points already made.
7. Frame the issues and tell a story…accurately
During his confirmation hearings, Chief Justice John Roberts said, “I think all good judges focus a lot on the facts. We talk about the law, and that’s a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.”
The Chief Justice raises a good point. Suppose you’re representing an appellant in a negligence case. The court doesn’t need a primer on the elements of negligence, so don’t spend much time setting forth these elements. Instead, focus on why the facts of your case involve a duty, breach of duty, causation, and damages. Keep in mind four important caveats when crafting a statement of facts, however.
Avoid being argumentative. This is not to say you should not frame and present your facts in the best possible light. Nonetheless, providing a fair and objective recitation of facts is generally more effective than giving an editorial.
Carefully avoid misstating facts or presenting them in a misleading way. Few things are more damaging to your case than misleading the court. These first two caveats are not just practice pointers; they are requirements. Supreme Court Rule 341(h)(6) expressly requires a statement of facts “necessary to an understanding of the case, stated accurately and fairly and without argument or comment….”
Be concise and limit the “story” to relevant and dispositive facts. Don’t spend time making a statement of facts lengthy. Focus on making it effective.
Remember the standard of review. For example, if the trial judge found that the appellee’s testimony was not credible, an appellant should highlight that because credibility determinations receive considerable deference. In contrast, if the case involves de novo review of a contract dispute, any favorable language in the agreement should be highlighted, and the trial judge’s analysis is less important.
8. Remember, formatting rules exist for a reason
The amount of paper that flows across the desk of an Illinois Supreme Court Justice is extraordinary. For that reason, Supreme Court Rule 341 sets forth the physical requirements for appellate briefs, including the page limitations and other rules regarding margins, spacing, and the like.17 Attorneys must sign a certificate of compliance confirming that the submitted brief follows these requirements.18
Attorneys sometimes attempt to surreptitiously skirt these rules with subtle deviations, such as typeface that is 11.5-point rather than required 12-point, or by using margins that are .9 inches instead of 1 inch. However, such efforts are often identified by the clerk’s office, which will likely refuse to accept the brief in that condition. A lawyer who waits until the last day to file a brief only to have it rejected by the clerk may face an embarrassing conversation with a client. Note, too, that noncompliance with Rule 341 may lead to sanctions.19
One other point to consider on this issue, this one being from the court’s perspective: attorneys who are willing to slyly disregard or disobey formatting rules may be perceived as likely to misstate the facts or law or otherwise mislead the court. Don’t jeopardize credibility by failing to comply with Rule 341, especially because that rarely strengthens the brief. Indeed, most practitioners do not need 70 pages to present an effective argument, and those with truly complex appeals may file a motion to exceed the page limitation.
9. Cite the best authorities available
Attorneys asking a court to do something should always aid the court by providing an authoritative basis for the request. Citing the best authorities available seems like a common-sense approach, but lawyers in both the trial and reviewing courts often make one of six mistakes in citing authority. Here’s how to avoid them.
Cite authority. Written arguments sometimes lack citation to any authority whatsoever, which violates Supreme Court Rule 341(h)(7). Note, too, that Rule 341(h)(7) dictates that case citations be provided with a certain level of competency because “a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.”20
Cite cases that are relevant. Lawyers sometimes cite cases that do not support their position, that support their adversary’s position, or that have nothing to do with the case.
Avoid string cites when they are unnecessary. If an adversary argues that no court has ever awarded the relief you seek, citing a case from each appellate district is an effective way to overcome that argument. However, citing five cases for a basic proposition of law is an effective way to annoy the court.
Make sure the cited cases are good law. That involves more than just determining whether the case has been directly overturned. For example, many practitioners do not know that appellate court cases prior to 1935 are not binding precedent.21
Look for controlling precedent. Make every effort to cite to either the Illinois Supreme Court or, less preferably, the appellate district in which you are litigating. While it usually makes little difference, the reality is that “one district of the appellate court is not always bound to follow the decisions of other districts.”22
Succinctly explain the rationale. Lawyers sometimes cite a case without expressing a clear reason or rationale for the citation, or conversely, they spend an entire paragraph analyzing a case when less discussion will suffice. Consider whether a one-sentence parenthetical following a case citation would be sufficient or helpful.
10. Choose your battles wisely
One of the most important things a practitioner can do in the appellate court is to carefully choose the issues to appeal and how to best frame them. A lawyer on the losing end of a ruling might think that the trial judge committed a litany of errors and, occasionally, that happens. Seeking to convince the appellate court that every one of the trial judge’s rulings was erroneous is a good recipe for failure, because it’s likely that few, if any, constitute reversible error.
Worse yet, bogging down a reviewing court in unpersuasive minutiae will cause attorneys to expend significant “persuasion capital” and credibility better used on more critical issues. Therefore, instead of fixating on a dozen rulings the trial court got wrong, focus on the three or four most critical, most prejudicial, and most likely to warrant reversal.
Choosing one’s battles, however, requires caution. Points not argued on appeal,23 raised for the first time on appeal,24 or raised for the first time in a reply brief25 are generally waived or forfeited. Further, prudent attorneys will follow Rule 303(b)(2) by clearly specifying the judgment or order being appealed26 and will recognize that the Illinois Supreme Court routinely deems arguments as waived if they were not identified in the appellant’s PLA.27
Litigating in a reviewing court can be daunting for many attorneys, especially those who seldom do it. Ideally, these 10 tips will give the occasional appellate practitioners a higher level of comfort and understanding of the reviewing process and increase the effectiveness of their arguments.
Hon. John C. Anderson is a circuit judge in Twelfth Judicial District (Will County). He is a member of Illinois Supreme Court Rules Committee and a former law clerk to Chief Justice Thomas L. Kilbride.
- Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010).
- Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005).
- See, e.g., Harshman v. DePhillips, 218 Ill.2d 482, 503, 844 N.E.2d 941, 945-46 (2006).
- Ill. S. Ct. R. 303(a) (eff. June 4, 2008).
- Ill. S. Ct. R. 303(d) (civil cases) (eff. June 4, 2008).
- Ill. S. Ct. R. 606(c) (eff. Mar. 20, 2009).
- Ill. S. Ct. R. 315(b) (eff. Feb. 26, 2010).
- In re Tekela, 202 Ill. 2d 282, 780 N.E.2d 304 (2002).
- Ill. S. Ct. R. 311 (eff. Feb. 26, 2010).
- Ill. S. Ct. R. 343(c) (eff. July 1, 2008).
- Ill. S. Ct. Rs. 306(a)(1) through (9) and 306(c)(5) (eff. Feb. 16, 2011).
- See Witters v. Hicks, 338 Ill.App.3d 751, 755-56, 790 N.E.2d 5, 10 (2003).
- Ill. S. Ct. Rs. 311(b) (eff. Feb. 26, 2010) and 343(c) (eff. July 1, 2008).
- People v. Hunt, 234 Ill.2d 49, 58, 914 N.E.2d 477, 481 (2009).
- Ill. S. Ct. R. 323(d) (eff. Dec. 13, 2005).
- Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005).
- Ill. S. Ct. R. 341 (eff. July 1, 2008).
- Ill. S. Ct. R. 341(c) (eff. July 1, 2008).
- Ill. S. Ct. R. 375 (eff. Feb. 1, 1994).
- In re Marriage of Baumgartner, 237 Ill.2d 468, 474, 930 N.E.2d 1024, 1027 (2010).
- Bryson v. News America Publications, Inc., 174 Ill.2d 77, 95, 672 N.E.2d 1207, 1217 (1996).
- In re May 1991 Will County Grand Jury, 152 Ill.2d 381, 398, 604 N.E.2d 929, 938 (1992).
- Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008).
- Parks v. Kownacki, 193 Ill.2d 164, 180, 737 N.E.2d 287, 296 (2000).
- Salerno v. Innovative Surveillance Technology, Inc., 402 Ill.App.3d 490, 502, 932 N.E.2d 101, 113 (2010).
- Ill. S. Ct. R. 303(b)(2) (eff. June 4, 2008).
- Ill. S. Ct. R. 315(c)(3) (eff. Feb. 26, 1010); see also People v. McDonough, 239 Ill. 2d 260, 276, 940 N.E.2d 1100, 1111 (2010).