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

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

The preparation of an appellate brief is fraught with many difficulties, especially the brief of the appealing party (the appellant). Some attorneys who do not normally prepare appellate briefs adopt this attitude when confronted with this task:

I can handle the appeal myself without referring it to another lawyer.

I want to respond to this approach by presenting a short list of some of the nagging problems that must be addressed when preparing an appeal. These briefing requirements can develop into a routine if you handle appeals on a regular basis, but they are frequently time-consuming problems when tackled only once in a blue moon. If your time can be spent more productively in other ways, then referring the case to someone more experienced in the field is likely to produce a better brief and perhaps a better result on appeal.

1. Cross-appeal

Most commonly, the non-appealing party (the appellee) is only trying to defend the judgment in the trial court. However, in some instances, particularly more complex civil cases, the appellee will need to file its own appeal, called a cross-appeal. The cross-appeal is initiated in the same manner as the principal appeal by filing a notice of appeal with the clerk of the circuit court. This notice must be filed within 10 days after service of the appellant's notice of appeal or within 30 days from the entry of judgment, whichever is later. (See Supreme Court Rule 303a3) The key question is whether a cross-appeal is needed in order to defend the judgment of the trial court. The substance of this issue exceeds the scope of this article, but suffice it to say that the matter may require some research in order to avoid loss of your position on appeal.

2. Docketing the appeal

Filing the notice of appeal (or cross-appeal) has merely preserved your right to eventually have the Appellate Court review your arguments. But another step must be taken to place the case on the court's calendar. Within 14 days of filing of the notice of appeal (or cross-appeal), each appealing party must file a docketing statement. The form for this paperwork is contained in Supreme Court Rule 312(a). The docketing statement must be accompanied by a filing fee, as well as copies of the requests previously directed to the circuit clerk and the court reporters to prepare the record on appeal. Appellees must also file an appearance and submit a fee. The failure to file the docketing statement will prompt the clerk of the court to issue a warning that the appeal will be dismissed for failure to comply with this filing requirement.

3. Filing a complete record

The requirement to file a complete record on appeal may seem quite obvious, but on occasion the expense of an appeal may prompt litigants to try to submit less than all of the transcripts. This laudable effort to control the cost of litigation must be approached carefully by appellants in particular, because of the rule that gaps in the record are held against the appealing party. In other words, if you have not been careful to include all relevant transcripts pertaining to the issues raised on appeal, then the Appellate Court will assume that the missing transcripts supported the judgment below. If you have not requested preparation of the entire record at the outset of the appeal, then you can supplement the record by an appropriate motion later.

4. Motions

Yes, the Appellate Court does hear and rule on motions. However, motions are only handled via paperwork, not personal appearances. Generally, motions are governed by Supreme Court Rule 361. Different procedures apply to motions filed in the Appellate Court as compared to the Supreme Court. The moving party can expedite the decision on a motion to which opposing counsel has expressed agreement by including the fact of the agreement in the motion. Since the Appellate Court Clerk's office handles so many motions, burying the statement of agreement in the motion may not be effective. For this reason, I send a cover letter to the clerk to alert that office to the agreement, with a reference to Rule 361(a). Some additional specific requirements must be followed for obtaining an extension of time to file a brief. See Rules 343(c) and 610.

If you still think that you should handle the appeal on your own, keep in mind that we have only touched on some aspects of the preliminary paperwork to docket the appeal. The next article will discuss important aspects of the actual brief for those hardy souls who wish to persevere with their original intention of filing the appeal.

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.