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

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2003

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 brief

The first few pages of the brief must contain certain types of information in a specified order, as required by Supreme Court Rule 341(e). First, under a section called "Points and Authorities", you must include the headings of the arguments presented in the brief, along with a list of all legal authorities referenced in each separate argument. This is followed by a general statement of the nature of the case, a list of the issues presented (which is generally a restatement of the argument headings in question form), a statement of the authority for invoking the jurisdiction of the Appellate Court, and quotations from any statute or constitutional provision essential to review of the contentions on appeal.

The jurisdiction section is the most important introductory portion of the brief, because it must recite the dates on which significant jurisdictional events occurred, along with references to the pages of the record. You should pay particular attention to these matters, because the Appellate Court will use this information to determine whether it may not have jurisdiction over the appeal. So, in a civil case, you would need to recite at least (1) the date that the judgment was entered, (2) the date of filing of any post-judgment motion, (3) the date of ruling on the motion, and (4) the date of filing the notice of appeal.

In a criminal case, the statement of jurisdiction may only need some of the following items, depending on whether the conviction, the sentence, or both are being appealed. If both aspects of the case are being challenged, then you would need to recite at least (1) the date that the finding of guilty was entered, (2) the date of filing of any post-trial motion, (3) the date of ruling on the post-trial motion, (4) the date of sentencing, (5) the date of filing any post-sentencing motion, (6) the date of ruling on the post-sentencing motion, and (7) the date of filing the notice of appeal.

6. Statement of facts

This is a very straightforward requirement for an appellant, as long as you do not inject argument into the brief at this point. The Appellate Court wants an objective and complete recitation of the facts that are germane to the legal arguments, not a statement that leaves out everything that is unfavorable to your position. I do not think that you need to include all the facts of the case if they will not have any bearing on either parties' arguments.

7. Standard of review for each issue

Is the issue reviewed on appeal de novo or under an abuse of discretion standard? Also, who has the burden of proof at trial or on appeal, must the court's decision be against the manifest weight of the evidence, etc.?

8. Official citations to case law

In the Second District, you may not simply cite to the Northeast Reporter or Illinois Decisions, although you can add these to your cites of cases. Instead, you must include the citations to the official Supreme Court or Appellate Court volumes. Also, you are required to include the pertinent page of the case on which the discussion of your legal point begins (for example, ___ Ill.2d ___ [first page of case], ___ [pertinent page] or ___ Ill.App.3d ___ [first page of case], ___[pertinent page]). You are also required to provide four copies of any non-Illinois cases to the Appellate Court when the brief is filed. Recently decided cases in Illinois must also be provided to the court if they are not yet reported.

9. Administrative orders

Each of the five districts of the Appellate Court promulgates its own administrative orders. In paragraph 8, I mentioned the Second District requirement of citations to official reports of case law. Another example is the Third District requirement limiting the statement of facts to 15 pages. The Second District also expedites appeals of custody judgments.

10. Appendix

The appellant's brief must contain an appendix, which includes a table of contents to the common law record (a/k/a circuit clerk's file) and a table of contents to the transcript of proceedings. If you weren't alert to this requirement when you started working on the brief, then you probably did not include in your notes the page numbers on which the testimony of all witnesses began for direct, cross-exam, redirect, etc. Once again, experience with these nit-picking requirements can save a great deal of time.

I thought of adding to this list the requirements for filing petitions for rehearing, affidavits in lieu of a petition for leave to appeal, leave to appeal to the Supreme Court and so forth --- but I think you get my point.

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.