Approaching the Appeal

©By William Lazarus

Trial lawyers are masters at pounding the facts and persuading the jury.  Oral advocacy dominates the trial. A skillful advocate builds the evidence, raising the drama as the trial develops. The resulting emotional impact, as well as the evidence itself, drives the verdict.

Appeals are a different creature. The brief is the thing. Oral argument is commonly not part of the picture. Even when such arguments are allowed, the brief’s dispassionate arguments focused on application of legal principles to the facts will, in all likelihood, decide the case.

“Cases are not won at oral argument; they are only lost,” writes Senior United States Circuit Judge Ruggero J. Aldisert in his book, Winning on Appeal. Having read the briefs, appellate judges will commonly seek to flesh out particular issues in which they take interest. Attorneys are frequently left with little time to address the issues as they prefer. Trial lawyers long persuaded of the merits of their case and determined to emphasize particular points rather than discuss issues of precedent and factual matters troubling the judges may transform a winning case into a loser. Dialogue and a willingness to explore subtle points of judicial inquiry are the ticket to winning the judges over. A closing argument to the jury will not work with the appeals court.

Preparing the oral argument, however, will bring focus, or, hopefully, a renewed focus on critical points that may not have received adequate emphasis in the brief. Since oral arguments are short, attorneys are forced to distill the key points of their arguments. But the focus and distillation may be lost as questions are posed by the judges sitting on the bench. So, do not depend upon oral argument to bring clarity and organization to your argument. Your brief must do that. Before writing, consider the main point to emphasize, and, as a rule, address that point first, unless you have a particular reason to move the argument down. Before giving relatively low play to a key argument, discuss the reasons you wish to do so with a colleague to help ensure you are not making a mistake.

It might be best to drop peripheral arguments altogether, says Cook County Judge Martin Moltz, who spent many years an appellate attorney before taking the bench himself. Moltz recalls a burglary case he handled when he was an appellate prosecutor. The defense had a “dead bang winner” on an evidentiary point. But “counsel didn’t know any better,” Moltz says. “He buried it as issue four in an eight-issue brief” and lost the appeal. “That was a classic example where somebody was trying to throw in everything. …If you’ve got one good winning point, go with it,” Judge Moltz says. “There’s nothing wrong with a one issue brief.” Or, perhaps three issues make sense, but not six, says Judge Aldisert:

“When faced with a brief that raises no more than three points, I breathe a sigh of satisfaction and conclude that the brief writer really may have something to say. I probably react in the same manner, or perhaps to a slightly lesser degree, when four or five points are presented. Beyond this point, I must confess, a small beast bearing the name of intolerance begins to nibble at my habitually disinterested judgment.”[1]

Jurisdictional complexities

Before writing a focused brief, and before an oral argument is even a possibility, a long road must be travelled. The first step on that road is to determine whether jurisdiction exists for an appeal. While a final judgment, or the final judgment upon rehearing, will start the 30-day clock ticking on an appeal in Illinois courts, the question of whether the judgment is, in fact, final or whether jurisdiction otherwise exists takes analysis. The rules are many, and the rules themselves are subject to change. They need to be reviewed when a brief is undertaken.

Remember that finality of judgment as to particular issues or to a party in a multi-party case is not enough to create jurisdiction on appeal, unless the trial court adds the language that there is no just reason for delay.[2] An order not citing the rule and only noting it was “final and appealable” did not create jurisdiction for an appeal.[3] Without the “no just reason for delay” language, it is wise to count all the issues — including counterclaims — and the parties to ensure that each has been decided by the trial court.

Even without a final judgment, cases may still be appealed under certain other circumstances. Supreme Court Rule 306 details five types of orders which can be appealed on petition, including, for instance, an order in the administration of a receivership, an order granting a new trial, and an order granting or denying transfer on grounds of forum non conveniens.

Some interlocutory appeals are allowed as a matter of right, including orders granting, modifying or dissolving an injunction and orders appointing a receiver.[4] These appeals must be noticed within 30 days, except in cases of ex parte orders, which require first going to the trial court for vacation of the order, and temporary restraining orders, which must be appealed, along with any supporting petition, within two days of the entry of the order. The appellant’s docketing statement in interlocutory appeals as of right under SCR 307(a) are to be filed within seven days of filing the notice of appeal; As to other appeals filed as a matter of right, the appellant has 14 days to file the docketing statement following the notice, along with any unpaid filing fee.[5]

Certain interlocutory appeals can be allowed by permission, with a trial court finding that its order involves “a question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation…”[6] In such cases, the appellate court will decide whether it will permit the appeal, after reviewing the application and the answer opposing it. The docketing statement is due upon submission of the application.

Also, the forum itself must be kept in mind. While parties have 30 days to file post-trial motions that toll the notice of appeal deadline in Illinois state courts, wait that long to seek a new trial in federal court and you’ll be 20 days too late.[7]

A seemingly simple, sometimes treacherous rule

Jurisdiction is conferred upon the appellate court only through the timely filing of a notice of appeal. Illinois Supreme Court Rule 301 appears simple, but it can be treacherous. The motion must be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, …within 30 days after the entry of the order disposing of the last pending post-judgment motion.” SRC 303(a) (emphasis added) If the portion of a post trial motion “directed against the judgment” is dismissed, the remaining portion will not continue to toll the due date for the notice of appeal.[8]

A judge has no authority to extend the 30-day jurisdictional time limit for filing a notice of appeal, and attorneys are not excused from following filing requirements merely by a judge’s recommendation of a procedure beyond his authority.[9] An agreement between attorneys to allow a second extension of time to seek rehearing was deemed inadequate to secure jurisdiction where the resulting faxed extension request did not comply with the rules.[10]

Post jury trial motions limit the appeal

After a trial, the first step in an appeal commonly comes in post-trial motions, before the appeal itself. In the case of a jury trial, Illinois Supreme Court Rule 366(b)(2)(iii) provides,  “A party may not urge as error on review of the ruling on the party’s post-trial motion any point, ground, or relief not specified in the motion.” Thus, the post-trial motion will frame, and limit, a subsequent appeal. (The rule is different with a non-jury trial.  SRC 366(b)(3)(ii) provides, “Neither the filing of nor the failure to file a post-judgment motion limits the scope of review.”)

The point is to not tarry. If you are going to appeal the jury’s verdict, do the planning immediately in its wake. If you wait until after your post trial motion to give full consideration to all the points you wish to appeal, you likely will find yourself unnecessarily limited in the points you can raise. Also remember that you will be limited by the record. The jury instructions and the evidentiary objections raised prior to and during trial will frame the appeal. Consider discussing these matters with someone who concentrates on appeals.  Another perspective, with an eye to the likely appeal in a big case, may make all the difference down the line.

Approaching the appeal

Where summary judgment has been granted, the record likely will be straightforward. The briefs and evidence presented to the trial court judge and the statements of uncontested facts, and the answers disputing those statements, will frame the issues. The situation becomes far more complex after trial.

A review of all the orders of the court, in conjunction with pre-trial and post-trial motions, should be undertaken early. This, including the jury instructions conference, and court rulings on any contested instructions, will provide an initial grounding as to likely issues for an appeal.

The record should be reviewed in its entirety, with detailed notes taken in an electronically searchable document. A searchable, digital transcript of the proceedings can be of immense help in scouting issues before and after review of the record.

First spot the issues, then narrow the scope

An intense examination of the record will enable the appellate attorney to develop a firm grasp of the case and the issues that should be considered. After the entire record is reviewed, it is time to brainstorm. But identification of possible issues for the appeal is just that. An appeal devoted to addressing every conceivable issue in a case is an appeal in trouble.

After the potential issues have been identified comes the critical work of narrowing the issues. Weak arguments are likely to bore the Court, and will tend to pull down the strong arguments. The everything-but-the-kitchen sink approach likely will lead skeptical judges to conclude that none of the arguments are worthy.

A second set of eyes can be immensely helpful in the work of framing the issues. Trial counsel played the gladiator in presenting the issues with passion and persuasion to jurors. But appellate judges don’t think like most jurors. The approach must differ, and an outside opinion can lend perspective necessary to making the approach on appeal work.

Dealing simply with complexity

The brief itself should be written in a straightforward fashion, communicating complex matters in an easy to understand format. Judge Aldisert in Winning on Appeal, discusses the “avalanche of appeals” and notes, with realistic humor, the “brief-reading environment” where distractions at the office, and at home, often vie for the attention of judges who commonly face reading well over 1,000 briefs each year.

The point is that the briefs must grab the judges’ attention and hold it. Good writing is key to achieving that. To keep the judge’s attention, the brief must be concise and clear. It also must be logical and accurate. Needless repetition, obscure constructions, circuitous and rudderless arguments, an overload of issues, irrelevant facts, convoluted syntax, lack of focus and disorganization serve to spur the judge to put the brief down for another day — a day which likely will never come. Worse still, misrepresented facts and case law will undermine counsel’s credibility, causing the judge to cease paying attention, or pay attention with a jaundiced view of the arguments. While even in these circumstances the attorney’s position may still prevail — even a great brief will not ensure that a bad case is won and vice-versa — the brief that lacks credibility and that makes claims contrary to the facts and the law will only serve to undermine the client’s case.

Set aside time

Preparation of an appellate brief takes time to review the full record, time to think about that record, time to organize, time to pare the argument to the essentials, and time to put present the argument cogently and to rewrite. Preparation takes painstaking research, and a willingness to address subtle legal distinctions. It takes time to focus, without continuous distractions from pending cases. While some trial lawyers are up to the task, many would far prefer to tackle the next trial than wade through the shoals of the appeal.

[1] Winning on appeal, Revised First Edition, p. 119.

[2] SCR 304(a).

[3]Coryell v. LaGrange, 245 Ill.App.3rd 1, 7 (1st Dist. 1993)

[4] SCR 307.

[5] SCR 312.

[6] SCR 308(a).

[7] Fed.R.Civ.P. 59(b)

[8] Berg v. Allied Sec., 193 Ill. 2d 186, 189 (Ill. 2000)

[9] Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (Ill. 1994)

[10] Lowenthal v. McDonald, 367 Ill. App. 3d 919, 923 (Ill. App. Ct. 2d Dist. 2006)