PRACTICAL APPEALS ADVICE - Part Eleven - Briefing

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in August, 2010

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 volume and lies beyond the scope of my expertise. However, I will provide you with the most important pointers for good brief preparation that I have acquired in the past 30+ years.

Keep in mind that the appealing party, the appellant, has lost the case in a dispositive motion or at trial. (fn. 1) You now bear the burden of demonstrating why your client should have won, or at least should not have lost and is entitled to another opportunity to win. From a practical standpoint, courts are not disposed to force the winning party to re-litigate the case, especially after a full trial on the merits. While serious error occurring in circuit court can lead to overturning your loss, you must focus intensely on the legal reasons for reversal or remandment.

In addition, I recommend against raising every conceivable issue on appeal that was litigated in the lower court and preserved for review. In my opinion, throwing everything against the wall to see what sticks marks you as a glorified paralegal rather than an attorney. Part of your job is to make judgments about which claims have little chance of success and eliminate them from the appeal, just as you make similar judgments in circuit court. If you're not persuaded by the advice of a country lawyer, then consider these comments of a former justice of the Supreme Court of the United States:

"One of the first tests of a discriminating advocate is to
select the question, or questions, that he will present orally.
Legal contentions, like the currency, depreciate through
over-issue. The mind of an appellate judge is habitually
receptive to the suggestion that a lower court committed
an error. But receptiveness declines as the number of
assigned errors increases. Multiplicity hints at lack of
confidence in any one…. [E]xperience on the bench
convinces me that multiplying assignments of error will
dilute and weaken a good case and will not save a bad one." (fn. 2)

II. DON'T SWEAT --- THE SMALL STUFF FIRST

Isn't getting over that first hump of initiating the work the hardest part? Don't we all hesitate to dive into a large project because it seems like such an imposing and endless task? I try to get over these mental blocks by nibbling away at the edges of briefing, starting with the quick and easy parts of the document. As required by sub-sections (d) and (h) of Supreme Court Rule 341, keep the following sections in the order listed below.

A. COVER PAGE

The cover page needs to contain a caption with the case number in the Appellate Court. fn. 3) The first number will be the number of the appellate district in the which the appeal is pending. So, for our district, every appeal number starts with "2" for the Second District in Elgin covering most of northern Illinois. For the Third District sitting in Ottawa (site of the first Lincoln-Douglas debate), every appeal number starts with "3", and so on. The names of the parties follow as they appeared in circuit court with their designations both in the trial court and the Appellate Court. For example, Fred Jones, Plaintiff-Appellee v. John Smith, Defendant-Appellant. You need to indicate the circuit and county from which the case originates, the case number in the trial court, and the name of the judge. Below the caption you title the document as "Brief and Argument for Defendant-Appellee," for example, as the case may be. Then indicate your name, address, phone number and an indication that you are "Counsel for Defendant-Appellant." At the bottom of this page, it is customary to state "Oral Argument Requested" so that no further motion is necessary to make this request. (fn. 4) Though most cases are not called for argument in the Appellate Court, it is customary for the Supreme Court to hear all cases accepted for appeal.

Should you always request oral argument? I continue to do so out of habit and the thought that the client is entitled to his day in court. Most of the time, the Appellate Court will dispense with argument and let you off the hook. But on occasion the judges want to clarify certain points or probe the limits of your reasoning. I would not want to tell my losing client that the Court misapprehended part of my brief after I failed to request oral argument.

B. POINTS AND AUTHORITIES

The next section is called "Point and Authorities" and simply lists the argument headings and the cases, statutes and other authorities cited in the brief, with page numbers for all of these entries. You cannot complete this section until the brief has reached final form and you know the exact wording of the argument headings and the authorities cited in the body of the brief. When you finish writing, just copy this information from the brief and insert it in this section. Certain portions of the brief are not counted for the page limitations, including the points and authorities. (fn. 5) To clarify the length of your brief, do not paginate the cover page. In addition, place page numbers on the points and authorities in some format different from the body of the brief. For example, use small Roman numerals (i, ii, iii, etc.) for this section and use Arabic numerals for the rest of the document. Remember that this information must be included for all legal arguments in the order appearing in the brief. The rule requires citing cases in the order of their importance, but I would not take the trouble to scramble their order from the sequence in the brief.

C. NATURE OF THE CASE

There follows a brief summary of the appeal entitled "Nature of the Case." (fn. 6) In this paragraph, you first indicate the type of appeal being presented. You might state, "This action concerns an appeal from a grant of summary judgment" or "This action concerns an appeal from the Defendant's conviction for the offense of first degree murder." You should indicate whether a trial occurred, whether a jury or bench trial was involved, and the sentence in a criminal case. Then conclude the paragraph with a statement whether any issue has been raised regarding the sufficiency of the pleadings and, if so, the nature of the question.

D. ISSUES PRESENTED FOR REVIEW

Customarily, you transfer each argument heading into an issue presented by adding the word "whether" to the start of the heading. Thus, your argument heading claiming that "The State failed to prove Mr. Brown guilty of the crime of armed robbery because…" becomes "Whether the State failed to prove Mr. Brown guilty…"

E. JURISDICTION

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 facts because the Appellate Court will use this information to prompt an inquiry as to whether it has jurisdiction over the appeal. So, in a civil case, you would need to recite at least (1) the date that the final 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 need less than all 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 verdict or 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.

There are other variations on the jurisdictional theme for criminal cases involving guilty pleas, for civil cases involving appeals from judgments not disposing of all parties and issues, and for a variety of interlocutory appeals. You need to consult the applicable Supreme Court Rule to make sure that you stated all the pertinent jurisdictional prerequisites. (fn. 7) In most records, the required documents will be found in the court file (a/k/a common law record), which makes this task relatively easy. You can then cite the page number for each of the required elements of jurisdiction (e.g., R. C17). On occasion, orders will not be entered and you must check the transcripts for the dates and pages demonstrating that you are presenting a timely-appealed case (e.g., R. 210-221).

While appellate practitioners sometimes grow weary of the "boilerplate" aspects of the introductory sections of a brief, the jurisdictional section is a good check on the appealability of your case. If you review these documents early in the appellate process, well in advance of the preparation of the record, you can often correct jurisdictional problems by filing an amended notice of appeal or by returning to the trial court to make an order final and appealable. In criminal cases, the rules even permit the filing of a late notice of appeal six months beyond the normal deadline. (fn. 8) Remember that the filing of the notice of appeal is the only jurisdictional step in the appeal, (fn. 9) so getting it right is crucial to the survival of your case.

F. STATUTES OR CONSTITUTIONAL PROVISIONS INVOLVED

You don't need to quote all statutes or constitutional provisions that will be raised in your arguments. Instead, you only need to quote those provisions whose interpretation is crucial to resolution of the appeal. So, in a challenge to the voluntariness of a statement taken following the administration of Miranda warnings, you need not quote the 5th Amendment to the federal constitution or its state counterpart because the case will not interpret Miranda. Instead, you will omit this section because your argument will focus exclusively on the facts and existing law applicable to the issue of voluntariness.

G. CONCLUSION AND CERTIFICATION

For now, let's skip the meat of the brief, the statement of facts and legal arguments, and continue with the easy parts at the end of the document. The conclusion immediately follows all legal arguments and states in concise form the precise relief requested from the Court. In other words, state whether you are requesting a new trial, vacation or reversal of the judgment, remandment for further proceedings, or some other specific relief. Neophytes often unduly prolong the conclusion by reiterating their arguments, thereby repeating earlier sections and boring the reader. Just keep to the point by stating in one or two sentences exactly the relief you seek. Immediately below the conclusion, place your name, address, etc., just as it appears on the cover page.

On the same page or a separate page you need to prepare a certification that the length of the brief conforms to Supreme Court Rule 341(b). Currently, the initial brief of the Appellant and the Appellee's brief are limited to 50 pages. Reply briefs cannot exceed 20 pages in length. If you just cannot squeeze all your brilliance into these limitations, then you need to file a motion to exceed the page limits. (fn. 10)

H. APPENDIX

The appellant's brief must contain an appendix, which includes copies of certain important documents, 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. (fn. 11) 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, preparing in advance for these nit-picking requirements can save a great deal of time.

The rules contain a list of the necessary documents for the appendix. All you need to do is copy them from the record and number them in order of filing. Thus, your table of contents to the appendix will be page A1, your documents will start with page A2, then the tables of contents follow the documents.

Some circuit clerks prepare a list of all documents filed in the court file when they prepare the record on appeal. If so, just copy these pages from the record rather than preparing your own document for the table of contents to the common law record. After all, this is the official record of the circuit court. But you will still need to prepare a table for the witnesses.

My next article will discuss preparation of the meat of your brief.

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 Just a reminder: Cross-appellants may have lost a substantive issue as well, prompting the filing of a notice of cross-appeal.

fn. 2 Justice Jackson, "Advocacy Before the United States Supreme Court," 25 Temple Law Quarterly 115, 119 (1951)

fn. 3 Follow along with the form below:

NO. 2-0?-????

IN THE APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT
___________________________________________________________
PEOPLE OF THE STATE ) Appeal from the
OF ILLINOIS, ) Circuit Court of the
) ????? Judicial Circuit,
Plaintiff-Appellee, ) ????? County, Illinois
)
vs. ) NO.:
)
?????????????????, ) Honorable
(first name & last initial for juveniles) ??????? ????????,
Defendant-Appellant. ) Judge Presiding
___________________________________________________________

BRIEF AND ARGUMENT FOR DEFENDANT-APPELLANT

Larry Wechter
Law Office of Larry Wechter
1770 S. Randall Road, Suite A
Geneva, IL 60134
630/232-4354

COUNSEL FOR DEFENDANT-APPELLANT

ORAL ARGUMENT REQUESTED


Footnotes

fn. 1 Supreme Court Rule 352(a)

fn. 2 Supreme Court Rule 341(b)(1)

fn. 3 Sub-section (h)(2) of Supreme Court Rule 341

fn. 4 See the last issue of Bar Briefs, "Preparation for Briefing"

fn. 5 Supreme Court Rule 606(c)

fn. 6 Supreme Court Rules 301, 606(a)

fn. 7 Supreme Court Rule 341(b)(2)

fn. 8 See the last issue of Bar Briefs, "Preparation for Briefing"

fn. 9 Supreme Court Rules 301, 606(a)

fn. 10 Supreme Court Rule 341(b)(2)

fn. 11 See the last issue of Bar Briefs, "Preparation for Briefing"