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

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2009

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 advice regarding filing requirements.

I. SCOPE OF MOTION PRACTICE

The Supreme Court Rules governing appellate practice in civil and criminal appeals (fn. 2) do not limit the type of motions you can file. Similar to motion practice in the trial courts, only the requirements of your particular case and the limits of your imagination confine the subjects of appellate motions. However, because the record is limited to proceedings already conducted in the trial court, most motions fall into routine requests for relief from the Appellate Court or the Supreme Court, as discussed in sections II to IX below.

II. BASIC MOTION REQUIREMENTS

Supreme Court Rules 361 and 610 prescribe the basic requirements for filing motions. As you might expect, you must present motions in writing. If the record on appeal has not been filed in the reviewing court by the time you file your motion, a supporting record must accompany the document, along with an affidavit to substantiate the truth of any facts lying outside the record. As a practical matter, most motions tend to be filed either before the filing of the record on appeal or after one of the parties has withdrawn the record from the reviewing court clerk's office. Therefore, you may need to copy certain pages from the record to attach to your motion so that the Court can review those documents. In other instances, such as requesting an extension of time to file your brief, you will not need any supporting documents. Instead, you can simply allege the facts to support your prayer for relief and attach an affidavit. For example, you could allege delay in obtaining transcripts from court reporters, the extraordinary length of the record, the large number of legal issues presented, or other professional obligations to justify your request for an extension to file your brief.

Opposing counsel on appeal may agree or not object to your motion. If so, you should advise the clerk of the reviewing court of this fact in a cover letter accompanying the motion. In addition, you should label the motion as "agreed" or "unopposed" and allege the agreement or lack of objection in a separate paragraph in the motion. Advising the Court of this fact will shorten the normal 10-day waiting period before the Court rules on the motion. (fn. 3) If you cannot reach an agreement with opposing counsel, you can still shorten the waiting period to 5 days by making service on the attorney personally or by fax, rather than by mail. In the 2nd District, motions not designated as emergencies or as agreed are ruled on once each week.

Your motion must be accompanied by a proof of service and a proposed order. The order should be phrased in the alternative as "allowed" or "denied." In addition, you can add specific language for any relief you request. For example, you can suggest a date certain for an extension request and include the date in the proposed order. The clerk in Elgin will advise you by written order of the ruling on the motion, but will not provide information on pending motions over the phone.

Although the non-moving party may answer an opponent's motion, replies are not allowed except by order of the Court. Contrary to motion practice in circuit court, oral arguments on motions are not allowed unless ordered by the Court. Practically speaking, reviewing courts almost never schedule oral arguments on motions, so you need to be sure that your document is clear, complete and self-explanatory. Finally, you may think the Court overlooked an important aspect of a motion denied at an earlier stage of the appeal or that it should reconsider its initial ruling made prior to submission of your brief. You can request reconsideration of the issue in a subsequent motion and ask the court to address the question again along with the other briefed issues. While successive motions are disfavored, they can change the outcome of the case if you have a strong enough issue. (fn. 4)

III. MOTIONS TO FILE LATE NOTICES OF APPEAL (fn. 5)

Oops! You miscalculated the 30-day time limit for filing the notice of appeal, but you caught your mistake shortly after the time expired. Yes, there is a loophole for this failure to properly invoke appellate jurisdiction. (fn. 6) First, you prepare a late notice of appeal, then you rush to your local courthouse and file it, then you attach a copy of the file-stamped notice to your motion. In your motion, candidly admit your counting error and allege that the appeal has merit. File the motion with all due haste, hopefully only a short few days after the deadline expires, and the reviewing court may forgive you and allow the motion. (fn. 7) The rules recognize that even experienced appellate counsel can make mistakes and that parties deserve decisions on the merits.

IV. EMERGENCY MOTIONS

The first rule concerning emergency motions is to avoid calling any request for relief an emergency. You must realize that at the appellate stage of the case, few problems require the Court's swift resolution. Supreme Court Rule 361(g) provides some guidance on the designation of emergencies, such as providing that motions for bail pending appeal are properly termed emergencies. (fn. 8) I would label any motion to file a late notice of appeal as an emergency. (See section III above) On the other hand, Rule 361(g) provides that extension motions for filing the brief are not considered emergencies. The 2nd District routinely includes an admonition in its first order scheduling due dates to file extension motions at least two weeks before the filing deadline for the brief.

For genuine emergencies make sure that the name of the motion includes the designation of "emergency." You must state the grounds for requesting immediate relief in the documents. Second District Rule 107 also requires the motion to state the date by which the Appellate Court is requested to act, the relief sought in the circuit court, and the nature of the emergency.

V. CASE-DISPOSITIVE MOTIONS

Supreme Court Rule 361(h) provides a mechanism for requesting dismissal of an appeal at an early stage of the case in order to avoid the effort and expense of briefing on the merits if the Court lacks appellate jurisdiction. As noted in section II, normally you would attach a supporting record consisting of the final, appealable order and the notice of appeal, plus whatever other documents support your argument that the notice was filed too late. Alternatively, you could attach non-final orders demonstrating that the appeal was filed prematurely. Typically, you will need to cite case law supporting your request for relief. Finality and appealability of circuit court orders remains a fertile source of litigation, (fn. 9) so make sure that your opponent's right to appeal is or is not a foregone conclusion as one of your first tasks as an appellee. Please recall my earlier advice that you can request reconsideration of the denial of this type of motion when filing your brief.

VI. MOTIONS RELATED TO THE RECORD ON APPEAL

In the unhappy event that you did not engage a court reporter to attend trial court level proceedings, you may need to obtain either an agreed statement of facts from your opponent or seek approval of a bystander's report by the circuit judge. Though these (poor) substitutes for transcripts are typically sought after the filing of the notice of appeal, you must obtain them in the circuit court. The trial court retains jurisdiction to approve this part of the record after the filing of the notice of appeal. (fn. 10) If you represent the appellant in the usual contest over the record, his or her trial counsel (fn. 11) must complete the much-hated tasks of preparing a summary of the unrecorded proceedings, serving it on your opponent, attending any necessary contested hearing on its accuracy, and obtaining the required court order. Once approved, the document should be included in the record by the clerk if this task is completed before the clerk certifies the record or you may need to supplement the record later by filing a motion in the reviewing court.

You can spare yourself all this agony by arranging for the presence of a court reporter at all significant trial court hearings. After all, any case adjudicating the right to a person's freedom or a substantial financial dispute is worth the modest expense of a court reporter. In our area, you can obtain their services for a minimum charge of only $150.00 for two hours of attendance. If the client is too cheap to pay, advise him that this attitude could make any appeal an even more uphill battle than is already the case for appellants.

You may also need to request an extension of time for completion of transcripts by court reporters. When a particular reporter is busy recording other hearings and trials, the seven weeks allowed for completion of the record by Supreme Court Rules 326 and 608(c) may not allow enough time, especially if your transcripts run to hundreds or thousands of pages. Just as with motions to extend the filing of briefs, these extensions are controlled by Supreme Court Rules 361(f) and 610, discussed in the next section.

VII. EXTENSIONS OF TIME TO FILE BRIEFS

Supreme Court Rules 361(f) and 610 contain more requirements for requesting extensions than for other types of motions. First, the motion must be supported by your affidavit. Second, you must state the number of previous extensions granted and the reasons for those earlier requests. I interpret this provision to require the recitation of extensions granted to your opponent as well. Citing the other party's extensions may actually help you to demonstrate that your request is justified by the length of the record, the complexity of the issues, and so forth. In criminal cases, you must allege the date on which you were retained or appointed to the case, the date of filing the record on appeal, and the reasons for your request.

In the 2nd District, the Court routinely grants one extension of 35 days to file briefs. As long as you have some good reason for the need for additional time and do not abuse the process by filing endless requests, you may be granted more than one extension. It is good practice to recite the names and case numbers of other litigation or appeals detaining you if the reason you need an extension is your heavy workload. Eventually, the Court will enter an order informing you that its latest extension is final. Experienced appellate attorneys also know that the courts of review may also grant motions to file briefs instanter up to two weeks beyond the "final" deadline. (fn. 12)

The most important advice I can share on this topic is to make sure you can set aside large blocks of uninterrupted time before you accept a retainer for an appeal. If you want to produce a professional product, you need to count on the fact that even the simplest appeal with the shortest record is bound to take at least two dozen (24) hours of your time from start to finish. Most cases worth appealing take much longer to complete professionally.

VIII. OTHER MOTIONS

A. MOTION TO DISMISS APPEAL

For whatever reason, the appellant may desire to dismiss an appeal at an early stage of the case. Supreme Court Rules 309 and 612(a) permit the trial court to dismiss an appeal prior to the filing of the record in the reviewing court. After that time, any such motion must be addressed to the Appellate or Supreme Court under the authority of Supreme Court Rule 361.

B. SUPPLEMENTING THE RECORD

As you review the record, you may find that some documents are missing. This occurs frequently with respect to exhibits. Supreme Court Rule 329 permits you to supplement the record even after the clerk certifies it by the initial deadline for completion, that is, seven weeks after the filing of the notice of appeal.

C. CITING SUPPLEMENTAL AUTHORITY

Maybe you've been living right and the United States Supreme Court renders an unanimous decision on your legal issue after you file your brief. Or, in more mundane circumstances, another "lower" reviewing court issues an opinion assisting your cause. You should file a motion to cite this authority in support of your argument. It is good practice to supply the Court with four (4) copies of a recent decision not yet published in the official reporters. (fn. 13)

D. MOTION FOR RELEASE FROM CUSTODY OR FROM BAIL

Supreme Court Rule 604(a)(3) provides that the defendant shall not be held to bail or in custody pending appeals initiated by the prosecution, unless the State shows compelling reasons for continued detention or bail conditions. In some few criminal cases, the defendant's conviction is reversed on appeal, while the mandate may not issue for weeks or months afterwards. I recommend the immediate filing of a motion for release from custody or bail because the entry of an opinion in the reviewing court clerk's office is not picked up by the jailer or the circuit court clerk. You must initiate the requisite action to enforce the provisions of this rule to complete the representation of your client.

E. USE YOUR IMAGINATION!!!

IX. MISCELLANEOUS PRACTICE TIPS

Supreme Court Rule 361(b) informs you of the different requirements for Appellate Court versus Supreme Court motions. In the Appellate Court, you need to file an original and three copies of your motion, along with the proposed order and proof of service. The Appellate Court is always considered to be in session for purposes of motion practice.

In the Supreme Court, the requirements differ depending on whether the Court is currently in session. In order to determine whether the Court is in session, call the clerk's office in Springfield at telephone number 217-782-2035. Also, be sure to ask if the Court is considered in session as of the date your motion arrives in Springfield and not just the date you place it in the mailbox. If in session, file the original motion and one copy with the clerk, along with proof of service and the proposed order. If not in session, you may be able to serve only the justice in your appellate district with one copy at his or her district office, with the original sent to Springfield. Or you may need to serve each justice with copies, depending on the importance of the motion. The personnel in the clerk's office are quite courteous and helpful. They will save you time rather than trying to figure out these arcane details on your own.

My next article will discuss preparation of briefs in the reviewing courts.

 

Larry Wechter is the primary of the Law Office of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134 - phone: 630/232-4354 - fax: 630/232-4362 - e-mail: larry.wechter@sbcglobal.net. Larry served in the Appellate Prosecutor's office for three years, prosecuted felony cases in Kane County for 5 years, and has been in private practice since 1987.

fn. 1 See my article published in Bar Briefs, February 2009

fn. 2 300 series (civil appeals), 600 series (criminal appeals)

fn. 3 See Supreme Court Rule 361(b)

fn. 4 See People v. Marker, 382 Ill.App.3d 464 (2nd Dist., 2008), overruled at 223 Ill.2d 158 (2009)

fn. 5 See Supreme Court Rules 303(d) & 606(c)

fn. 6 This type of loophole differs from the one highlighted in an old "Wizard of Id" cartoon. As the condemned man stands on the scaffold with a rope around his neck, he asks the king about the loophole mentioned by his lawyer. The king responds, "You're wearing it."

fn. 7 See Bank of Herrin v. Peoples Bank of Marion, 105 Ill.2d 305, 306 (1985) and LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863, 865 (1st Dist., 2000)

fn. 8 Also see 2nd District Rule 107 for emergency appeals in this district.

fn. 9 See People v. Marker, 382 Ill.App.3d 464 (2nd Dist., 2008), overruled at 223 Ill.2d 158 (2009)

fn. 10 See Supreme Court Rule 323(c) & my article published in Bar Briefs, January 2005

fn. 11 If you were not trial counsel, you cannot prepare the report because you are not personally familiar with the hearings that must be summarized.

fn. 12 See Supreme Court Rules 343(c), 361 & 610

fn. 13 This is the number of copies of non-Illinois authorities you are supposed to supply to the reviewing court at oral argument. (See Uniform Appellate Rule 8)