PUBLISHED LEGAL ARTICLES

10 THINGS TO KNOW ABOUT DIRECT APPEALS

Here is my list of 10 important points to keep in mind about preparing appeals of right to the Appellate Court of Illinois, including advice about handling a case in circuit court in order to preserve issues for appeal 1. VERBATIM TRANSCRIPTS AND BYSTANDER’S REPORTS Innumerable appeals are made more difficult or not pursued at all because of the failure to ensure the attendance of court reporters at court proceedings. In these situations, the losing party in the trial court must prepare either a document called a bystander’s report ...

Practical Appeals Advice
Part 15 - I DON’T DO POST-TRIAL MOTIONS” OR “I WASN’T PAID FOR THAT WORK”: THE PERILS OF CASTING THE CLIENT ADRIFT IN CIVIL CASES I. INTRODUCTION

In my immediately previous article, I discussed the perils of premature abandonment of the client’s criminal case by his or her trial attorney. In the following discussion, I address the parallel problem of failing to diligently present post-trial motions in ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2013.

Practical Appeals Advice
Part 14 - “I DON’T DO POST-TRIAL MOTIONS” OR “I WASN’T PAID FOR THAT WORK”: THE PERILS OF CASTING THE CLIENT ADRIFT IN CRIMINAL CASES I. INTRODUCTION

I appreciate the confidence of many experienced attorneys who have sought my advice on preparing their clients’ cases for appeal in the wake of adverse trial determinations. These able advocates advise me that ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2012.

PRACTICAL APPEALS ADVICE
Part Thirteen - Petitions for Rehearing & Petitions for Leave to Appeal I. INTRODUCTION

My previous articles in this series provided advice to the occasional appellate advocate regarding the steps required to successfully prosecute an appeal. This advice commenced with the factors to consider in deciding whether to appeal and continued through the briefing process of a direct appeal to ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2012.

VARIANCE: A VARIATION ON REASONABLE DOUBT

Occasionally rule 23 orders, though not precedential, contain important legal lessons. One of the most singular lessons teaches that the appellate attorney has a valuable role to play in fashioning the arguments in the brief. In fact, the end-product of an appeal may look quite different from its anticipated form when the client first discussed the case with appellate counsel. ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2010.

PRACTICAL APPEALS ADVICE
Part Twelve - Briefing the Hard Stuff

I. INTRODUCTION Because you read previous articles in this series and diligently digested all the information about pre-briefing and briefing the easy stuff (fn. 1), you are ready to tackle the statement of facts and the legal issues. This is partly a creative lawyering task and partly an organizational task that requires you to put your facts and authorities in ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in September, 2010.

PRACTICAL APPEALS ADVICE
Part Eleven - Briefing

I. INTRODUCTION In my last article, I brought you to the point where all the preliminaries to brief writing had been completed, including the vital components of familiarizing yourself with the rules of appellate procedure, abstracting the record, and researching the legal issues as thoroughly as possible. A discussion of all the points of good writing would consume a small ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in August, 2010.

PRACTICAL APPEALS ADVICE
Part Ten - Preparation for Briefing

I. INTRODUCTION Experienced brief writers know that roughly 80% to 90% of the work involved in preparing and filing a brief occurs before the appellate lawyer actually begins to argue the legal issues by putting keystrokes to computer screen. For this reason, the entirety of this article will deal with those steps subsequent to docketing and ordering the record, (fn. ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in July, 2010.

PRACTICAL APPEALS ADVICE
Part Nine - Motion Practice in the Reviewing Courts

My last article in this series addressed the steps you need to take immediately following the filing of the notice of appeal to deal with stays of the circuit court judgment, docketing the appeal, ordering the record, and other notice and administrative issues. (fn. 1) This article explains the scope of motion practice in the reviewing courts and provides practical ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2009.

PRACTICAL APPEALS ADVICE - Part Eight - MAKING THE APPEAL EVEN MORE PERFECT

We left off the saga of practical appeals advice about two years ago when I lost the person who guided my formative years. She would want me to find my bearings again by continuing this series. I. APPELLATE LIFE AFTER FILING THE NOTICE OF APPEAL Many clients misunderstand the nature of the appellate process. They wonder if the reviewing court ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in February, 2009.

STATE INTERLOCUTORY APPEALS: OVERTURNING 30+ YEARS OF PRECEDENT - SO FAR!

Late in 2006, I received a referral from a local attorney to defend his victory in Kendall County on a suppression motion that the State was seeking to overturn on appeal. At that time, I thought my work in People v. Brent Marker would be restricted to the unexceptional task of upholding the discretion of the trial judge to grant ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2008.

COULD THE KANE COUNTY BAR REALLY BE 150 YEARS OLD?

I'm not trying to be an iconoclast (for once) on the subject of the ancient legal roots of the local bar. In fact, as you'll understand if you read on, I discovered proof of the existence of an active local political group dating from the years immediately before the American Civil War. But when I first heard about the sesquicentennial, ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2008.

PRACTICAL APPEALS ADVICE - Part Seven - MORE PERFECTING OF THE APPEAL

The most recent article in this series discussed the impact of post-judgment motions on appealability and the deadline for filing notices of appeal in civil and criminal cases. This part continues the discussion of the manner of perfecting the appeal. IV. WHO CAN FILE A NOTICE OF APPEAL? A. CIVIL CASES Obviously, an appeal seeks to redress perceived error in ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2006.

PRACTICAL APPEALS ADVICE - Part Six - PERFECTING THE APPEAL

Previous articles in this series discussed the required preliminary steps before filing an appeal, especially the requirements for post-judgment motions. This part answers the most common questions relating to the filing of the notice of appeal in both civil and criminal cases. (fn. 1) The filing of the notice is the sole jurisdictional step in perfecting an appeal. (fn. 2) ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2006.

PRACTICAL APPEALS ADVICE - Part Five - PREPARATORY STEPS TO THE APPEAL (CROSS-APPEALS)

Parts Three and Four in this series of articles discussed the requirements for filing motions for reconsideration and post-judgment motions in civil and criminal cases in preparation for filing the notice of appeal. This part describes equivalent requirements for filing cross appeals in both civil and criminal cases. MOTIONS FOR RECONSIDERATION & POST-JUDGMENT MOTIONS IN CROSS-APPEALS A. WHAT IS A ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in August, 2006.

PRACTICAL APPEALS ADVICE - Part Four - PREPARATORY STEPS TO THE APPEAL (CRIMINAL CASES)

Parts One and Two in this series of articles discussed some basic considerations in deciding whether to appeal a ruling of the circuit court. Part Three addressed some of the requirements for filing motions for reconsideration and post-trial motions in civil cases. This part continues the discussion of the previous article concerning the equivalent requirements for filing motions for reconsideration ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in July, 2006.

PRACTICAL APPEALS ADVICE - Part Three - PREPARATORY STEPS TO THE APPEAL (CIVIL CASES)

INTRODUCTION Parts One and Two in this series of articles discussed some basic considerations in deciding whether to appeal a ruling of the circuit court. Part Three addresses the requirements for filing motions for reconsideration from interlocutory orders and post-judgment motions in civil cases. MOTIONS FOR RECONSIDERATION OF INTERLOCUTORY ORDERS & POST-JUDGMENT MOTIONS IN CIVIL CASES A. APPEALABILITY The trial ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in June, 2006.

APPELLATE JURISDICTION: WHAT'S LEFT AFTER WAUCONDA AND LYLES?

I. WAUCONDA AND LYLES I interrupt my multi-part series on practical appeals advice to discuss the impact of two recent Supreme Court decisions on the jurisdictional aspect of appellate practice. In Wauconda Fire Protection Dist. v. Stonewall Orchards, LLP, 214 Ill.2d 417 (2005), the Supreme Court excused the filing of a deficient affidavit of intent to seek leave to appeal, ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in February, 2006.

PRACTICAL APPEALS ADVICE - Part Two - TO APPEAL OR NOT TO APPEAL

December's article discussed the factors an attorney should consider in deciding whether to appeal a civil or criminal case. This month, I discuss the advice you should give to your client and other avenues to obtain relief from a judgment other than a direct appeal.** Advice to Client Do not assume that clients understand the basic concept of an appeal ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2006.

PRACTICAL APPEALS ADVICE - Part One - TO APPEAL OR NOT TO APPEAL

I. INTRODUCTION In a previous article, I encouraged dabblers not to venture into the minefields of appellate practice.1 I should add that the more appellate work comes my way, the more I confront unexpected situations and exceptions to the rules of appellate practice. Without backtracking from my earlier advice, I know that some very adept attorneys will still prepare an ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2005.

DOUBLE OPPORTUNITY TO APPEAL DOUBLE JEOPARDY CLAIMS

I. INTRODUCTION Most of the articles I write for Bar Briefs focus on appeals from final judgments because they are the most common types of appeals by far. In criminal cases, the imposition of the sentence is considered the final judgment, so that appeals from convictions are not permitted until the sentence has been imposed. However, in certain situations, the ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2005.

ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part Five)

Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Parts Two and Three expanded on those general principles by providing specific examples of actions that circuit courts may take in criminal and civil cases following the filing of a notice of appeal. Part Four outlined the doctrine of re-vestment and its effect on ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in May, 2005.

ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part Four)

Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Parts Two and Three expanded on those general principles by providing specific examples of actions that circuit courts may take in criminal and civil cases following the filing of a notice of appeal. Part Four outlines the doctrine of re-vestment and its effect on ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2005.

ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part Three)

Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Part Two expanded on those general principles by providing specific examples of actions that circuit courts may take in criminal cases following the filing of a notice of appeal. Part Three provides specific examples of actions that circuit courts may take in civil cases ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in February, 2005.

ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part Two)

Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Part Two builds on those general principles by providing specific examples of actions that circuit courts may take in criminal cases following the filing of a timely, properly drafted notice of appeal. Part Two ACTIONS TRIAL COURTS MAY TAKE IN CRIMINAL CASES FOLLOWING THE ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2005.

ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part One)

I. INTRODUCTION This topic addresses a widespread and fundamental misunderstanding of the intricacies of appellate jurisdiction in Illinois, which can be summed up in this fictitious quotation: "The court cannot take any further action because the plaintiff (or defendant) has filed a notice of appeal. This is an issue that the Appellate Court must address. Call the next case." In ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2004.

DOING WHAT YOU LOVE TO DO

The return of the modern Olympic Games to Athens this summer provided us with the opportunity to view some of the sites and experience some of the inspiration of the city widely regarded as the fountainhead of Western civilization. In dozens of less publicized events occurring all across America this fall, the power of an idea born over 2,500 years ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2004.

POST-SENTENCING MOTIONS IN CRIMINAL CASES (PART TWO) OR "I THOUGHT I WAS FINISHED WITH THIS CLIENT"

I. INTRODUCTION Part one of this topic published earlier this year addressed the jurisdictional questions and the procedural requirements pertaining to post-sentencing motions. In addition, I discussed the advisability of filing a second notice of appeal in the same litigation in certain circumstances. This second part deals with the substantive requirements for preparation and presentation of the written post-sentencing motion.1 ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2004.

RECKLESSNESS VERSUS NEGLIGENCE OR WHEN IS A TRAFFIC ACCIDENT A CRIME?

I. INTRODUCTION We all know that traffic collisions may result in both criminal law and civil law consequences. In some cases, the line between a criminal act and a civil tort is not always clear. Recently, the Second District accepted my argument that the State failed to prove my client's guilt of the offense of aggravated reckless driving when he ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2004.

POST-SENTENCING MOTIONS IN CRIMINAL CASES (PART ONE) OR "I THOUGHT I WAS FINISHED WITH THIS CLIENT"

I. INTRODUCTION The meanderings of a felony case through the justice system can require many months of effort. The pre-trial phase of the prosecution may include hearings on a variety of topics ranging from joinder to judgment. Subsequently, counsel must prepare for voir dire, trial and sentencing. Quite naturally, trial practitioners in criminal court conclude that the imposition of sentence ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in June, 2004.

STIPULATED BENCH TRIALS PRESERVE THE RIGHT OF APPEAL (IF YOU DON'T STIPULATE TO TOO MUCH)

I. INTRODUCTION In most criminal cases, the contending parties arrive at a plea agreement to dispose of all the charges. However, on occasion, the defense may want to preserve a pre-trial issue or a legal question pertaining to an affirmative defense, where the sufficiency of the evidence to prove guilt is not otherwise in doubt. Alternatively, the defense may want ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2004.

POST-JUDGMENT MOTIONS IN CIVIL NON-JURY CASES: DON'T SWEAT THE SMALL STUFF ANY MORE?

Prior to initiating an appeal, litigants in civil non-jury cases sometimes want one more opportunity to convince the trial judge of his or her error following the entry of an adverse judgment. Occasionally, the motivation is simply delay, either because the client wants more time to think about whether to appeal, or more time is needed to find an appellate ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2003.

"I'LL GET STUCK WITH THE APPEAL IF I FILE THE NOTICE OF APPEAL" - A FABLE

Some trial attorneys who refer appeals to my office believe that taking the sole required step to perfect appellate jurisdiction also requires them to prepare the brief and complete all stages of the appeal. I do not want to disparage the concern about getting stuck with an unwanted legal task. However, I will try to convince the doubters that they ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in September, 2003.

BRIEFING REQUIREMENTS OR 10 REASONS YOU SHOULD REFER A CASE FOR APPEAL - PART TWO

In my last article, I began consideration of this attitude of attorneys who do not normally handle appeals to file an appellate brief: I can handle the appeal myself without referring it to another lawyer. Here are some additional reasons that you should refer the case to a lawyer experienced in preparing the necessary documents: 5. Introductory sections of the ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on January, 2003.

BRIEFING REQUIREMENTS OR 10 REASONS YOU SHOULD REFER A CASE FOR APPEAL - PART ONE

The preparation of an appellate brief is fraught with many difficulties, especially the brief of the appealing party (the appellant). Some attorneys who do not normally prepare appellate briefs adopt this attitude when confronted with this task: I can handle the appeal myself without referring it to another lawyer. I want to respond to this approach by presenting a short ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on January, 2003.

JURY SELECTION - DICTUM CAN BE IMPORTANT

Introduction This past March, the Appellate Court issued a full opinion concerning jury selection in a criminal case originating from Kendall County. The case of People v. McCormick, 328 Ill.App.3d 378 (2nd Dist., 2002), ruled that the defense had failed to demonstrate that the right to exercise peremptory challenges had been diluted by a voir dire method called a "struck ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on July-August, 2002.

HOW MANY LAWYERS DOES IT TAKE TO FILE A CRIMINAL APPEAL

Although the title sounds like a tasteless joke from the 1980's (or was it the '70's??), this article illustrates the perils of lack of communication between trial and appellate counsel. Also, I will discuss some of the rules governing the timing of filing of notices of appeal in criminal cases. A recent Second District Rule 23 order dealt with a ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on March, 2002.

CIVIL AND CRIMINAL APPEALS - Timetables for Perfecting Appeal

In recent years, a large volume of litigation has addressed the issue of the timely filing of both civil and criminal notices of appeal. Various amendments to the Supreme Court Rules have now clarified the timetables for perfecting appeals, particularly the problems which arise when post-judgment motions are filed either before or after the filing of the notice of appeal. ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on November, 2000.

THE FIRST STEP IN AN APPEAL: Keeping Track of Error During the Trial

"This post-trial motion has been prepared without the benefit of a transcript of the trial proceedings. The plaintiff/defendant hereby incorporates all other allegations of error which have not been specifically noted in this motion." All experienced appellate practitioners have frequently read paragraphs in post-trial motions similar to the language just noted during the course of their careers. Apparently, the trial ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on May, 1999.

THE COLOR OF COCAINE: The Results of Field Tests are not Alone Sufficient to Prove the Presence of a Drug Beyond a Reasonable Doubt

I represented the defendant on the appeal of his criminal conviction for the offense of possession of a controlled substance in the case of People v. Hagberg. The Appellate Court in Elgin published its opinion reversing the conviction on December 9, 1998, which is cited at 703 N.E.2d 973. The identification of the substance at trial as cocaine was based ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on May, 1999.

STRATMAN v. BRENT - Slander: "Mentally disturbed" is not an innocent phrase - Release: Check the print that isn't at all fine

In a previous article, I discussed a recent Second District opinion regarding the application of statutory and common-law immunity to statements made to a prospective law enforcement employer by a chief of police. In this article, I will explain the Appellate Court's interpretation of the "innocent construction" rule of Illinois slander law as applied to an accusation that a person ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on November, 1997.

STRATMAN v. BRENT - A police chief could not claim either statutory or common-law immunity from suit when labelling a former police officer mentally disturbed in an interview with the officer's prospective employer.

The Appellate Court recently issued a published opinion reversing the dismissal of a Kane County slander suit filed by a former police officer of the City of Aurora against former Police Chief Robert Brent. The officer, Joseph Stratman, alleged that he was slandered when then-Chief Brent labelled him a mentally disturbed individual in interviews conducted by the FBI and ...
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association on October, 1997.