This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2005
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 occasional appeal. The next series of articles will provide practical advice for preparation of an appeal from start to finish. I will concentrate on the most common types of appeals, rather than delving into cases involving special causes of action that represent only a small fraction of the appellate case load. I hope this advice will help guide the effort to appeal by lawyers who do so only occasionally -- and also help to dissuade them from the task.
II. OVERVIEW OF ARTICLES IN THIS SERIES
This first article will address the considerations for the attorney and the client in deciding whether to file a direct appeal, as well as a short summary of other avenues of relief. Future articles discuss the following topics: Preparatory steps for an appeal (article #2); Perfecting an appeal (article #3); Docketing the appeal and preparing the record (article #4); Contents of the brief (article #5); Differing considerations for preparing civil versus criminal appeals (article #6); Motion practice on appeal (article #7); Specific civil appeals (article #8); Specific criminal appeals (article #9); and Appeals beyond the appeal of right (article #10).
Considerations for the Attorney
In some respects, evaluating a case for appeal resembles the lawyer's considerations in deciding whether to try a case. The main considerations follow: (1) Are the trial issues well preserved in the record? (2) How much money is at stake or how important are other rights that can be vindicated on appeal?; (3) How much will the appeal cost the client?; (4) How much attorney time will be consumed preparing the brief?; and (5) How much time will elapse until the Appellate Court issues a decision?
A. ARE THE ISSUES WELL PRESERVED IN THE RECORD?
You may be tempted to charge ahead with the appeal when the client expresses outrage at the judge or the system after losing a motion and/or trial. He or she may make noises about upholding some fundamental "principle" involved in his or her case. However, you should first consider which issues were so well preserved in the record that the Appellate Court will address them on the merits.
(1) CIVIL CASES
In order to preserve trial issues for appeal, civil cases require the entry of a timely objection when an opponent seeks to introduce the offending evidence. The filing of a motion in limine will not preserve an issue absent a contemporaneous objection to the evidence when it is introduced before the court or jury. This rule holds true even if the judge rules against your motion in limine on the merits following a full hearing.2 Remember that general objections to evidence in the trial court only preserve relevance issues. In other words, specific objections are required to preserve issues pertaining to the hearsay rule, competence of a witness, foundation, and so forth.3
A corollary of this rule is the requirement to make an adequate offer of proof of evidence you would have introduced if the judge had not excluded it. The record must contain the particular testimony or exhibits you would have elicited, even though it is refused.4 In a jury situation, the offer must be made outside the jury's presence. The best method of making an offer of testimony is by actually examining the witness because the presentation of a summary of that testimony may not adequately preserve the record.5
A similar rule pertains to jury instructions. Objections on the record are required to preserve issues regarding the contents of instructions given by the court and the text of refused instructions must be submitted as part of the record in order to preserve claims of error in their refusal.6
The second requirement for preserving trial issues is the filing and presentation of a post-trial motion in jury cases. The motion must be directed against the judgment by seeking a new trial, judgment notwithstanding the verdict, or other appropriate relief.7 Motions requesting relief that would not affect the judgment do not qualify as post-trial motions and will not extend the time for filing an appeal.8
The most common defects in post-trial motions that I have encountered are inclusion of "shotgun phrases" describing the issues that allegedly justify a new trial or other relief. By "shotgun phrases" I mean paragraphs like this:
"The trial judge erred by admitting evidence over the objection of the plaintiff and by excluding evidence that the plaintiff sought to admit at trial."
"The court erred in sustaining objections to the plaintiff's closing argument and overruling objections to the
defendant's closing argument."
The reviewing courts have ruled repeatedly that these phrases do not preserve anything for appeal. 9 You are wasting your effort and paper if these are your only claims of error. Instead, you must be specific about the particular evidence, arguments, or instructions involved. Try this instead:
"The trial judge erred in admitting the testimony of Mr. Smith concerning a statement attributed to Mr. Jones that he wanted his mother-in-law to inherit his estate, in violation of the Dead Man's Act."
"The court erred in giving the jury defense Instruction #15 that misstated the burden of proof applicable to comparative negligence."
Many lawyers indicate in their motions that the "shotgun phrases" referred to above are prompted by the absence of a trial transcript because they believe that the lack of a written record is an excuse for this phrasing of the post-trial motion. If you are seriously contemplating an appeal, then you need to order the transcript and obtain additional time to file the post-trial motion within 30 days of the entry of the judgment.10 Once you have the transcript in hand, you can be more specific with your claims of error.
Although post-trial motions are not required in civil bench trials11, I advise preparation of the motion anyway. I think it is good discipline for the eventual appeal and helps to identify those issues holding the most promise for appellate relief. You need not fear that the failure to include an issue in the post-trial motion waives the question for appeal because the contents of the motion do not limit the issues you can raise in the Appellate Court.12
For those attorneys more used to criminal cases, keep in mind that civil appeals do not permit the assertion of ineffective assistance of counsel claims. The remedy for an attorney who mishandles a trial is not an appeal containing an inadequate record, but rather a legal malpractice claim.
(2) CRIMINAL CASES
Most of the same rules regarding the preservation of evidentiary objections, offers of proof, and errors in the giving and refusing of instructions pertaining to civil cases apply equally well in criminal prosecutions.13 One dissimilarity from the rules applicable to civil cases is that a trial objection is not required if the issue was resolved via a motion in limine or a motion to suppress.14 Also note that the rules require the recording of the voir dire process in felony cases, even if the transcript is not ordered for the appeal.15
In contrast to civil cases, post-trial motions are always required in criminal matters, whether they were tried to the court or a jury.16 In addition, if you conducted a stipulated bench trial, you still must file a post-trial motion to preserve issues for appeal.17 Further, if you want to raise sentencing issues on appeal, you need to file and bring to hearing a post-sentencing motion.18
In criminal cases, the reviewing courts are more forgiving of the failure to properly preserve issues for review. Due to the constitutional protections at stake in criminal prosecutions, the Appellate Court and the Supreme Court may invoke the plain error rule to avoid the State's waiver claims.19 Also, if the appellate lawyer can demonstrate that the trial attorney was ineffective, then the failure to preserve an issue may not be fatal to the appellate claim.20
B. WHAT ARE THE STAKES?
In civil cases, the stakes most commonly involve a money judgment, but they can certainly impact ownership of real estate, the validity of a will or trust, or other issues. In criminal cases, while incarceration is the most common cause of concern, many clients seek vindication of their reputation or "clearing of their record" even if granted probation or convicted of a misdemeanor. Some clients suffer collateral consequences as a result of a criminal conviction, such as ineligibility for an educational loan, loss of employment, inability to possess a firearm, and so forth.
Just as the decision to accept or reject a settlement offer or a plea offer may be an intensely personal decision, so the decision to appeal may be unpredictable from the standpoint of an attorney who is not as emotionally involved in the case as the client. However, you need to distinguish between the client with the genuine desire to invest the resources required in an appeal from the person who will not pay to vindicate his or her "personal principles."
C. HOW MUCH WILL IT COST?
Though I can't reveal all my secrets, the effort and skill required to appeal justifies substantial legal fees. I have only rarely encountered a client who wants to pay legal fees based on an hourly rate. As a result, you will undoubtedly need to present the client with a flat fee for all appellate work, at least through the stage where the Appellate Court issues a decision in the case. After preserving the issues in a post-trial motion, you will need to file the notice of appeal, docket the case, order the record, review all transcripts and documents in the court file, research the legal issues, prepare the initial brief, prepare any necessary motions, occasionally reply to the appellee's response, and appear for oral argument on rare occasions.21
In addition, preparation of the record on appeal costs money. The clerk's fee is quite modest and rarely exceeds the $100.00 level, even for lengthy cases. However, court reporters charge in excess of $3.00 per page for transcripts of court hearings, so records involving lengthy motions and/or trials can easily cost in the thousands of dollars.
If you did not have a court reporter record the proceedings, you can save money in preparing the record, but you will spend a great deal of time composing a bystander's report or an agreed statement of facts.22 These alternatives are poor substitutes for verbatim transcripts, not to mention the fact that opposing counsel may vehemently disagree with your recollection of the facts. In that event, you will need to resolve any disagreements at a hearing, with the trial judge finally determining the accuracy of the record.
Naturally, you will need to balance the size of the judgment or the importance of the other legal rights at stake against the expense of the appeal. The client has the absolute right to make the decision to appeal or not to appeal rather than the attorney.23 Once again, both financial and personal factors enter into this decision.
D. TIME TO BRIEF THE APPEAL
The rules for civil and criminal appeals set forth timetables for completing the appellate process.24 If these steps leading up to the filing of the brief are all completed on time without any extensions, then the appellant's brief will be filed 14 weeks after the filing of the notice of appeal.25 The opposing party, known as the appellee, has another five weeks to prepare an answering brief, followed by two weeks to reply.26
The Appellate Court usually approves one extension for filing the brief without any hesitation. Further extensions may be granted due to a variety of circumstances. In criminal cases in particular, the State has been overloaded with appeals in recent years and may be granted extensions lasting several months to respond to an appeal of a criminal defendant.27
Please keep in mind that preparing the brief is a time-intensive, detail-oriented, research-focused, intellectually demanding task. Since appellate records often run for hundreds or thousands of pages and the rules require citations to specific pages of the record, this is not a project that lends itself to "winging it" over the weekend. Likewise, your effort will be given short shrift by the Appellate Court if your research is cursory and facile, rather than in-depth. In short, you will need large blocks of uninterrupted time. A polished brief cannot be written effectively unless you isolate yourself from phone calls, court appearances, and prospective clients whose retainers you need to keep your business thriving. Consider these time drains carefully before you brief the case.
E. TIME TO DECISION
Even if the appellate schedule is followed without any extensions of time, there is no deadline for the Appellate Court to issue a decision. Some cases receive priority, such as appeals involving issues of child custody.28 However, in the Second District, it is common for the Court to take four to six months to issue a ruling after all briefs have been filed.
This article will be continued in next month's edition of Bar Briefs.
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: firstname.lastname@example.org. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
1. See "Briefing Requirements or 10 Reasons You Should Refer A Case for Appeal" (Bar Briefs, January 2003)
2. Illinois State Toll Highway Authority, 163 Ill.2d 498, 502 (1994)
3. Cerveny v. American Family Insurance Co., 255 Ill.App.3d 399, 410 (1st Dist., 1993)
4. Sullivan-Coughlin v. Palos Country Club, Inc., 349 Ill.App.3d 553, 561 (1st Dist., 2004)
5. Green v. Union Pacific Railroad Co., 269 Ill.App.3d 1075, 1082-1083 (5th Dist., 1995)
6. Saldana v. Wirtz Cartage Co., 74 Ill.2d 379, 386-387 (1978)
7. Berg v. Allied Security, Inc., 193 Ill.2d 186, 189 (2000) (motions for leave to amend the complaint are not considered post-judgment motions); also see the amendments to Supreme Court Rule 303(a)(1) effective January 1, 2006
8. Welton v. Ambrose, 351 Ill.App.3d 627, 631-632 (4th Dist., 2004) (motion to clarify clerical or typographical errors); also see 735 ILCS 5/2-1202 & "Post-Judgment Motions in Civil Non-Jury Cases: Don't Sweat the Small Stuff Any More?" (Bar Briefs, October 2003)
9. Jackson v. Village of Caseyville, 214 Ill.App.3d 1058, 1060 (5th Dist., 1990); People v. Grant, 232 Ill.App.3d 93, 106 (1st Dist., 1992) (same rule for criminal cases); also see "The First Step in an Appeal: Keeping Track of Error During the Trial" (Bar Briefs, date of article 4)
10. 735 ILCS 5/2-1202(c), 2-1203(a)
11. 735 ILCS 5/2-1203(a), Supreme Court Rule 366(b)(3)(ii)
12. Supreme Court Rule 363(b)(3)(ii)
13. People v. Butler, 2 Ill.App.3d 531, 534 (4th Dist., 1971) (specificity of trial objections); People v. Wood, 341 Ill.App.3d 599, 604 (1st Dist., 2003) (offers of proof required); People v. Singmouangthong, 334 Ill.App.3d 542, 547-548 (2nd Dist., 2002) (particularity of offers of proof); People v. Almo, 108 Ill.2d 54, 66 (1st Dist., 1985) (jury instructions)
14. People v. Hudson, 157 Ill.2d 401, 434-435 (1994); People v. Redmond, 341 Ill.App.3d 498, 506-507 (1st Dist., 2003). I still recommend an objection at trial in addition to the pre-trial motion and post-trial motion, especially because the precise evidence presented at trial may not have been anticipated in the motion.
15. Supreme Court Rule 608(a)(9)
16. 725 ILCS 5/116-1(b); People v. Enoch, 122 Ill.2d 176, 185-190 (1988)
17. See People v. Jones, 311 Ill.App.3d 433, 435 (5th Dist., 2000) & "Stipulated Bench Trials Preserve the Right of Appeal (If You Don't Stipulate to Too Much)" (Bar Briefs, January 2004). Note these exceptions: Where the State does not object to an oral post-trial motion or agrees that the purpose of proceeding with a stipulate bench trial is preservation of review of a defense issue, the post-trial motion is excused. People v. Todd, 249 Ill.App.3d 835, 839-841 (5th Dist., 1993)
18. See People v. Reed, 177 Ill.2d 389, 392-395 (1997) & "Post- Sentencing Motions in Criminal Cases or 'I Thought I was Finished with this Client' (Parts One & Two)" (Bar Briefs, June & November 2004)
19. People v. Williams, 139 Ill.2d 1, 14-15 (1990)
20. People v. Simmons, 342 Ill.App.3d 185, 189 (2nd Dist., 2003)
21. See subsequent articles in this series for those additional steps in the appeal.
22. Supreme Court Rule 323(c), (d)
23. People v. Ramey, 152 Ill.2d 41, 54 (1992); Keck and Associates, P.C. v. Vasey, ___ Ill.App.3d ___, 834 N.E.2d 486, 489 (1st Dist., 2005)
24. See the 300 series for civil appeals and the 600 series for criminal appeals.
25. Supreme Court Rules 326, 343(a), 612(k)
26. Supreme Court Rule 343(a)
27. See Rules 343(c), 361 & 610 for the requirements when filing an extension motion.
28. Supreme Court Rule 306A