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

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

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 will "take" the appeal or reject it. They somehow get the idea that "filing the appeal" is the same as filing the notice of appeal. Though most lawyers know better, this article provides some guidance on taking the necessary steps to preserve your client's case prior to filing the brief --- if you dare to complete the task you started when you placed your name on the notice of appeal as the party's appellate attorney.

II. STAYS (fn. 1)

Another common client misconception is the idea that the filing of an appeal automatically stays a civil judgment or a criminal sentence. On the contrary, the filing of the notice of appeal has no effect on the enforcement of the judgment. (fn. 2) Instead, you must file a motion with the trial court requesting a stay in order to obtain this relief, which the Appellate Court may then review. Different rules apply to cases involving money judgments, non-money judgments, and criminal sentences. In general, the trial court should first rule on these requests before a higher tribunal will consider the issue.

III. NOTICE OF FILING THE NOTICE

Though the clerk of the circuit court is required to transmit your notice of appeal and any amended notice to the Appellate Court in Elgin (fn. 3), you still need to notify your opponent of the fact of the filing. Rule 303(c) requires you to give notice of filing a civil appeal or an amendment to the notice within seven (7) days of your visit to the local clerk's office. If you tempted fate by mailing the notice rather than delivering it in person, make sure you use the U.S. Postal Service, then count the date of mailing as the first day. (fn. 4) Just use a simple notice of filing with accompanying proof of service and attach a copy of the notice of appeal, just as you would give notice in circuit court of any other filing. The only difference is that you should file your notice of filing with the clerk of the Appellate Court. (fn. 5)

In criminal cases, though the circuit clerk has the responsibility to inform the State that you filed the notice of appeal (fn. 6), it is better practice to notify the Appellate Prosecutor yourself. In this way, the people handling the People's appeal get prompt notice of your involvement in the case. I find it best to be on good terms with my appellate opponents, keeping in mind that their cooperation is sometimes helpful in obtaining extensions of appellate deadlines. (fn. 7)

IV. DOCKETING AND ORDERING THE RECORD ON APPEAL

The imposing word "docketing" masks a very simple additional filing. Although the filing of the notice of appeal is the only jurisdictional step in the appellate process (fn. 8), you still need to formally place your case on the calendar of the Appellate Court. The rules ease the pain of this process by providing a form. All you need to do is fill in the blanks on the form and file it with the Appellate Court within 14 days of filing the notice of appeal. (fn. 9) Parties filing cross-appeals must also file this document. (fn. 10)

The docketing statement includes a certification that you requested the circuit clerk to prepare the record on appeal. In other words, you must write a letter to the circuit clerk requesting certification of the contents of the court file, referred to on appeal as the common law record (CLR). You must also write to each court reporter requesting that they transcribe the court proceedings you want included in the record, specifying the date(s) of those proceedings. In criminal cases, you must specifically request inclusion of the jury selection transcript. (fn. 11) In some counties, you can deal directly with a supervisor of all official court reporters so that one letter will suffice. This part of the record is referred to on appeal as the report of proceedings (ROP).

The docketing statement and accompanying letters to the local clerk and court reporters must be filed in Elgin (by mail if you wish) within 14 days of filing the notice of appeal or within 14 days of the grant of a motion to file a late notice. Special abbreviated deadlines apply to interlocutory appeals. (fn. 12) If you do not designate the entire record, your opponent can request in writing that you do so. (fn. 13) Also, do not forget to specifically request the clerk to include documentary exhibits if necessary to adequately present the issues on appeal. In general, exhibits consisting of physical evidence, such as drugs, guns, blood, etc., cannot be included in the record absent an order of the trial court or the Appellate Court. (fn. 14)

My experience has taught me that in criminal appeals you should request the preparation of all documents from the court file, all ROPs, and all documentary exhibits. This avoids application of the rule that the presentation of an incomplete record on appeal invokes a presumption against your position on the issues. (fn. 15) In addition, in cases where you were not the trial attorney, you may miss a legal issue on appeal if you fail to review all documents and transcripts. Arguments regarding speedy trial violations or claims of ineffective assistance have a nasty habit of unexpectedly appearing in pre-trial ROPs.

Civil appeals can present more complex situations, but they may or may not call for preparation of the entire record, depending on the issues you intend to raise. Cost can be an important factor in light of the $3+ per page charge for transcripts. But when in doubt, order everything and remind your client that you advised him of these costs when you discussed the appeal after losing in the trial court.

Though the rules permit a seven-day delay between notifying your opponent of the filing of the notice of appeal and the filing of the docketing statement, I prefer to prepare and file all this paperwork when preparing and filing the notice of appeal. Because these documents consist of forms, it is more efficient to get everything done at one time. Delaying completion of these ministerial tasks will not alone extend the deadline for completing the next step in the appeal - the filing of the record in the Appellate Court. (fn. 16)

V. BYSTANDER'S REPORTS (fn. 17)

We all know that many courtrooms are not staffed with official court reporters. Some counties have instituted recording systems in lieu of human beings to compensate for the lack of personnel. But in those cases where neither fleet fingers nor electronic devices have recorded the proceedings, here is my most important piece of advice: Charge a premium for your services in addition to the normal legal fee for the appeal Why? Because you will spend a substantial amount of time obtaining the approval of the bystander's report. This advice applies even though you do not need to prepare the report yourself due to the client's representation by different trial counsel.

In cases where you represented the client in the trial court, you will encounter the happy task of preparing this document, which is a substitute for court transcripts. You will need to reconstruct from your notes and memory the pertinent proceedings. Your recollection may be sketchy and both your opponent and the trial court can challenge its contents at a hearing. The rules require submission of the report to the opposing party within 28 days after filing the notice of appeal. You can always request an extension, but your memory will fade as more time passes. (fn. 18)

For appeals new to your caseload, you will need to cajole the trial lawyer into preparing the report. She may not feel a tingle of excitement when you call requesting this extra work, for which she may need to request an added fee from a disgruntled client. You may need to chase this lawyer to get the work done by the deadline and/or file a motion to get more time to have her complete the work. You can only appear alone to obtain approval of the report if everyone agrees on its contents because any dispute about its accuracy requires the attendance of the lawyer with first-hand knowledge of the proceedings. You may even need to suggest amendments to ensure the proposed report fully describes the facts germane to your appellate issues.

Can you get around these painful problems? Well, if you were the trial lawyer, you could have ordered a court reporter to attend the case, so you can't blame anyone else. Regardless of the client's previous representation, you can try to obtain an agreed statement of facts as a substitute (fn. 19), but good luck with convincing the winning party to agree. Or you can dismiss the appeal, because without some kind of record the reviewing court has nothing to review.

At least two exceptions exist to the presumption that the trial court heard sufficient evidence to support the judgment where the record fails to include a verbatim transcript, namely, (1) where only an issue of law is presented on appeal (fn. 20), or (2) an adequate substitute for an ROP is not available due to no fault of the appealing party. The first exception is more likely to occur in civil cases where motion practice is more extensive, though some issues in criminal cases may be resolved using either a bystander's report or an agreed statement of facts. (fn. 21)

As to the second exception, in criminal cases the State has the burden to show that a substitute for an ROP can adequately address the defendant's appellate issues after the defense makes a colorable claim of the need for the missing transcript. Each issue is reviewed individually to determine whether any substitute document is adequate, such as a bystander's report. For example, issues challenging the sufficiency of the evidence to prove the accused guilty beyond a reasonable doubt generally require verbatim transcripts. Where the transcript is unavailable through no fault of the defendant and the missing documents are material to the issue(s) raised on appeal, either a new hearing or a new trial is the appropriate remedy. (fn. 22)

My next article will discuss motion practice 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 as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

Footnotes

fn. 1 See Supreme Court Rules 305 & 609

fn. 2 See Supreme Court Rule 305(e) for an exception dealing with the termination of parental rights and Supreme Court Rule 609(a) for stays in death penalty cases.

fn. 3 Supreme Court Rules 303(a)(4) & 606(b)

fn. 4 See Supreme Court Rules 373 & 612(s); Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill.2d 326 (1989); and Wilk v. Wilmorite, 349 Ill.App.3d 880 (2nd Dist., 2004). But do not use a private mail carrier! Clark v. TAP Pharmaceutical Products, Inc., 371 Ill.App.3d 628 (5th Dist., 2002), vacated by supervisory order due to the unique facts of the case, at 201 Ill.2d 562 (2002).

fn. 5 Supreme Court Rule 303(c).

fn. 6 Supreme Court Rule 606(e)

fn. 7 See Supreme Court Rules 361(a) & 610

fn. 8 Supreme Court Rules 301 & 606(a)

fn. 9 Supreme Court Rules 312(a) & 606(g)

fn. 10 Supreme Court Rules 312(a) & 606(g)

fn. 11 Supreme Court Rule 608(a)(9)

fn. 12 Supreme Court Rules 312(a) & 606(g)

fn. 13 Supreme Court Rules 323(a) & 608(a)

fn. 14 Supreme Court Rules 321 & 608(a)(10); Second District Administrative Rule 103, effective 6/2/04. Also see the last paragraph of sub-section (a) of Supreme Court Rule 608 concerning the substitution of photographs for exhibits.

fn. 15 People v. Ramos, 295 Ill.App.3d 522, at page 525 (1st Dist., 1998)

fn. 16 Supreme Court Rules 326 & 608(c)

fn. 17 See Supreme Court Rules 323(c) & 612(c)

fn. 18 Supreme Court Rules 323(e) & 608(d)

fn. 19 Supreme Court Rules 323(d) & 612(c)

fn. 20 Metropolitan Condominium Assoc. v. Crescent Heights, 368 Ill.App.3d 995 (1st Dist., 2006)

fn. 21 People v. Majka, 365 Ill.App.3d 362 (2nd Dist., 2006)

fn. 22 People v. Stark, 33 Ill.2d 616 (1966); People v. Banks, 378 Ill.App.3d 856 (2nd Dist., 2007); People v. Majka, 365 Ill.App.3d 362 (2nd Dist., 2006); People v. Ramos, 295 Ill.App.3d 522 (1st Dist., 1998); People v. Seals, 14 Ill.App.3d 413 (1st Dist., 1973)