PRACTICAL APPEALS ADVICE - Part Ten - Preparation for Briefing

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

I. INTRODUCTION

Experienced brief writers know that roughly 80% to 90% of the work involved in preparing and filing a brief occurs before the appellate lawyer actually begins to argue the legal issues by putting keystrokes to computer screen. For this reason, the entirety of this article will deal with those steps subsequent to docketing and ordering the record, (fn. 1) but prior to writing the brief. Please note that while most of the advice in this article and those to come focuses on the briefing requirements for appellants (the first party to file a notice of appeal), those same requirements apply to cross-appeals where the appellee (the second party to file a notice of appeal) is placed in the position of an appellant. (fn. 2)

II. THE FUNDAMENTAL FOCUS OF APPEALS

In my experience, most clients think that an appeal involves a generalized, unfocused complaint about the fairness of the proceedings in circuit court. You need to explain to them that the sine qua non of any appeal consists of one or more legal issues focusing on discrete aspects of the trial court proceedings. You must determine whether to raise issues concerning error in rulings on motions in limine, the admission or exclusion of particular evidence, the giving or withholding of certain jury instructions, and so forth.

With few exceptions, the strength or weakness of any appeal depends upon the factual background underlying the legal arguments and the thoroughness of the effort of trial counsel. But, as discussed below, some trial records either raise issues not previously litigated or issues that require you to reformulate the argument of the trial attorney. Regardless of whether the issue has been raised previously, remember that reviewing courts will not grant a new trial or reverse a judgment because you simplistically claim the hearings or trial were "unfair." (See section V below for more details)

III. FAMILIARITY WITH SUPREME COURT AND APPELLATE COURT RULES

Though the title of this section may initially seem like tedious toil, you need not read or memorize all appeals rules to write one brief. You can narrow your focus depending on whether the appeal is civil or criminal in nature and you can concentrate on different aspects of appeals in small bites. Preparing an appeal absent basic familiarity with just a dozen rules is like trying a lawsuit without knowing the legal elements of proof or the rules of evidence.

A. CIVIL APPEALS

The rules governing civil appeals appear in the 300 series of the Supreme Court Rules. Rules 301 through 308 deal with appellate jurisdiction. You need only review in detail the rules pertaining to your type of case, that is, an appeal under Rule 303 from a final judgment on all issues, an appeal under Rule 304 from a final judgment not disposing of the entire case, an appeal from an order granting or denying the motions specified in Rule 306, etc. (fn. 3) The next most important rules for most practitioners headed to the Appellate Court deal with the docketing statement(fn. 4), the record on appeal (fn. 5), and briefs (fn. 6). An hour or two spent reading and re-reading these few rules will be an invaluable aid when you begin your work.

B. CRIMINAL APPEALS

The rules governing criminal appeals appear in the 600 series of the Supreme Court Rules. First, note that many procedural aspects of civil appeals governed by rules from the 300 series are incorporated into criminal appellate practice by virtue of Rules 610 and 612. Choose your appropriate jurisdictional provision between Rules 603 and 606 for most cases or among Rules 651 and 660 through 663 for special cases, such as post-conviction appeals and cases from juvenile court. Then examine the rule pertaining to the record on appeal(fn. 7), the detailed provisions of Rules 610 and 612, and the cross-referenced civil rules.

C. APPELLATE COURT RULES

In most cases, the Supreme Court Rules provide you with an adequate road map. But you should be aware that there are Uniform Rules applicable to all appellate districts except Cook County and that each district promulgates its own "local" or "administrative" rules or orders. If you use Westlaw, the Uniform Administrative and Procedural Rules for the 2nd through 5th Districts and some of the individual district rules can be located within the "Illinois Court Rules" database fn. 8). The rules of all appellate districts, including their administrative orders, but excluding the uniform rules, can be found at the Supreme Court website (fn. 9). These rules need to be consulted when preparing emergency motions, when dealing with the inclusion of exhibits in the record on appeal, and other matters.

IV. WHAT'S IN A BRIEF?

The Appellant's brief contains several sections as detailed in Supreme Court Rule 341(h). Sub-section (i) of the same rule eliminates some of these requirements for the Appellee and sub-section (j) explains the minimal requirements for reply briefs. Some of these provisions are self-explanatory and the rule contains examples of how to word various sections to aid you on your journey. I will provide further aid in the next couple of articles in this series. In general, be aware that you need to take careful notes when reading the record to be able to provide page citations in the statement of jurisdiction, the statement of facts, and the arguments.

Also, Rule 342(a) requires the attachment of an appendix to every appellant's brief, which must include copies of the basic pleadings, orders and notice of appeal (fn. 10). In addition, you must supply a complete table of contents to the documents in the common law record. Some circuit clerks take this monkey off your back by supplying a table of contents in the record on appeal. In that case, you may copy the clerk's table, number it as part of the appendix, and attach it to the end of the brief. If you must perform this task, I see no necessity in listing every single piece of paper in a long record. As long as you name each important pleading and all other papers pertaining to your legal issues, the brief will not be refused if you fail to list every subpoena or remand order in the record.

Further, the appendix must include the names of all witnesses and the pages on which their direct, cross and redirect examinations begin. The preparation of the witness information for the appendix is a straightforward task if you recorded the required page numbers as you read. But failing to take this step can only lead to frustration while you search for this information at the same time you try to complete the substantive portions of the brief.

My habit is to type on my computer in paragraph form a summary of the arguments and testimony as I go, noting the page numbers of the record at the beginning of each paragraph. In addition, I bold the page numbers and names of the witnesses each time a new direct, cross or redirect examination begins. This provides an easy reference later when preparing the list of witnesses for the appendix.

V. BEGIN WITH POST-TRIAL AND POST-SENTENCING MOTIONS

Now that you have familiarized yourself with the basic focus of an appeal, the applicable rules and the required contents of a brief, where do you begin? Atop your desk is the record on appeal, which you received from one of two sources: (1) The clerk of the circuit court mailed the documents to your office after filing a certificate in lieu of the record with the Appellate Court, or (2) The clerk of the Appellate Court mailed you the record after receiving it from the circuit clerk (fn. 11). You noticed that the record is divided into two or three parts, namely, (a) the common law record (a/k/a documents filed in the trial court), (b) the report of proceedings (transcripts of hearings and trial), and (c) documentary exhibits (no drugs, guns, etc.)

Your starting point harks back to section II above to frame the issues on appeal. After all, you need to cull out of the hundreds of pages lying before you those portions of the record bearing on your legal issues. Abstracting the contents of the record is a considerably different task when eyeing an issue hinging on the denial of a motion to dismiss based on the running of limitations versus the denial of a motion for judgment notwithstanding the verdict. In the former instance, your efforts in reviewing the record will be concentrated primarily on the facts proving the dates of the accrual of the cause of action and the filing of the suit. This constitutes a relatively limited factual background compared to the record of the entire trial. In the latter situation, you need to record all the material facts developed at the trial, which requires a detailed recitation of those facts in the brief to support your legal argument.

Therefore, you should first review all post-trial and post-sentencing motions in the record, especially if you were not the trial attorney. If you wish, you can examine the transcripts of any arguments on those motions. You may not eventually advance in your brief all the issues contained in those documents. However, in most cases, you will not argue issues lying beyond the claims of error contained in those motions. Starting your review with the end of the case first will provide you with the necessary focus for the rest of your work.

Let me add a note of caution here: In criminal cases in particular, I regularly identify arguments not raised in the trial court that have a significant bearing on the appeal. This can happen either because the trial attorney failed to notice and argue a legal issue or because she made the right argument, but failed to apply the correct legal characterization to that argument. For example, I once obtained a reduction in the degree of some of my client's convictions in a drug case. In that situation, the State mixed up its exhibits and proved an inadequate weight of the drugs to sustain a higher class felony conviction. In another recent appeal, defense counsel argued the failure to prove the client's guilt beyond a reasonable doubt, but the more precise legal characterization of the proof problem was the existence of a variance between the charge and the evidence. Sometimes these problems require an argument that trial counsel rendered ineffective assistance to his client, which cannot be raised by the trial attorney.

Therefore, do not fall into the trap of limiting the scope of your review of the record exclusively to the contents of the post-trial and post-sentencing motions. This is especially important in criminal cases, where you have more leeway to raise legal questions not included in the post-trial or post-sentencing motions. Leave yourself open to a creative approach to the appeal in those relatively infrequent instances when the unexpected issue drives the writing of the brief. My experience in an active appellate practice teaches that overlooked issues in circuit court can change the ultimate outcome of the case. (fn. 12)

VI. ABSTRACTING THE RECORD

Following review of the post-trial and post-sentencing motions, you have seated yourself before the record with your fingers poised over your computer keyboard (for those tolerably good typists) or with your mouth placed adjacent to a recording device. How do you get past the physical obstruction of that 500 or 1,000 page record and the psychological barrier of starting down the long brief-writing path? First, you need to keep in mind that there is no quick and easy way to produce a professional product. You charged your client thousands of dollars for this work and you owe her a duty to spend sufficient time on the multiple tasks involved. You need to isolate yourself from the distractions of modern life, including cell phones, e-mail messages, video games, and the like. You don't need to devote every waking hour of every day to this responsibility and breaks are permissible to watch Jeopardy or to study ancient Greek participles. But trying to absorb all this information while answering phone calls in between running to multiple court appearances will inevitably lead to frustration as the filing deadline approaches.

I suggest that you start at the beginning after reviewing the end products just discussed and that you move back and forth between the common law record and the report of proceedings. In other words, when a court filing has an accompanying transcript for the same date, review the two sections of the record together. Then proceed to the next contemporaneous court filing and transcript (and perhaps exhibits) until you finish reviewing the entire record.

Another helpful hint is to make notes of questions or issues that occur to you as you traverse the record. Some preliminary questions may result in clarification just by further reading and some issues may require legal research at a later date. Unless you have a photographic memory, you cannot recall all these details days, weeks or months later without written notes. And interrupting review of the documents repeatedly to perform research will cause you to lose the necessary continuity to finish this phase of your work.

It is a common occurrence for transcripts to be omitted from the record, usually due to inadvertence. If you have a court order for a specific date but no transcript, be sure to contact the court reporter whose name appears on the order to obtain the document. Even if you think it's just a continuance, you should order the transcript because sometimes other substantive or procedural matters are discussed at brief status conferences.

VII. LEGAL RESEARCH

Perhaps the most time-consuming, but vital, aspect of brief writing is the quality of the legal research. I cannot tell you how many times I thought my case was weak after substantial effort on Westlaw, only to find the argument greatly strengthened after persisting to the nth degree in reading the case law. In this age of litigation pursued at the drop of a hat, you are not going to prevail by citing general, boilerplate principles of law. Instead, you must be sure that you have narrowed the issue to your factual circumstances and that you have located cases possessing the greatest factual resemblance to your client's appeal. What is the point of expending all the necessary time and money for an appeal if you cannot refer to an appropriate application of the law to your facts?

Teaching thorough methods of research could consume an entire treatise, so I will only emphasize a few points here. First, even if you are a bibliophile dinosaur like me, you can teach yourself how to use computer-based research. This method is infinitely more useful and thorough than trying to use books. The computer will provide you with as broad or narrow a search of cases as you request from it. You can repeatedly play with the scope of your search without overwhelming your desk with heavy tomes.

Second, while West headnotes can be very useful, do not rely on them exclusively. The people who assign headnotes to appellate decisions do not always classify them under the same topics or topic numbers. For this reason, it is important to supplement headnote-based research with more work based on the key concepts of your legal problem. For example, in a recent appeal, I researched a statutory speedy trial issue hinging on a defense motion for substitution of judge. While the best-known cases hold that defense substitution motions always toll the speedy-trial term, the unusual facts included a re-assignment of the case on the next to last day of the term on the initiative of the trial judge. After using the headnote system by searching under to(110k577.10(8)) /p substitut! and other similar inquiries, I formulated other queries without using headnotes, including "speedy trial" /p continu! /p "court's motion" or reassign!. By using a variety of different combinations of headnotes and terms, I was able to find significant cases extending from 1906 to 2009. These efforts enabled me to argue that the court system was responsible for the delay because the trial judge made the re-assignment prompting the substitution motion solely because of his busy trial schedule. (fn. 13)

Another research task is determining the correct standard of review of each legal issue. Supreme Court Rule 341(h)(3) requires that the brief include a statement of the standard of review for each issue with citation to authority. The Third District also requires that this part of the discussion appear under a separate heading at the beginning of each argument. (fn. 14)

As you record the results of your research, make sure you attend to some nitpicking details. The Supreme Court requires that you utilize the official citations to cases, that is, referring to Ill.2d or Ill.App.3d. If you wish, you can add cites to N.E.2d, but this is not required. In addition, the rule requires that case citations include the pages within each case pertinent to the question at issue (fn. 15). So, for example, you might cite to the case of People v. Hagberg, 192 Ill.2d 29, 32-34 (2000), for the proposition that a field test may not suffice to prove beyond a reasonable doubt the presence of a controlled substance in a powder, depending on the other testimony in the case. You may, but need not add to the cite a reference to 733 N.E.2d 1271.

My next article will discuss the writing 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.

Footnotes

fn. 1 See Bar Briefs, February 2009, "Making the Appeal Even More Perfect"

fn. 2 See Bar Briefs, August 2006, "Preparatory Steps to the Appeal (Cross-Appeals)"

fn. 3 See Bar Briefs, June 2006, "Preparatory Steps to the Appeal (Civil Cases)"; Bar Briefs, July 2006, "Preparatory Steps to the Appeal (Criminal Cases)"; Bar Briefs, August 2006, "Preparatory Steps to the Appeal (Cross-Appeals)"

fn. 4 Supreme Court Rule 312

fn. 5 Supreme Court Rules 321 through 329

fn. 6 Supreme Court Rules 341 through 343

fn. 7 Supreme Court Rule 608

fn. 8 See IL-RULES/court rules/uniform administrative and procedural rules appellate courts; IL-RULES/court rules/appellate court rules, second district; IL-RULES/court rules/administrative and procedural rules of the Illinois Appellate Court, Fourth District

fn. 9 www.state.il.us/court/AppellateCourt

fn. 10 See the next article in this series on briefing.

fn. 11 Supreme Court Rule 325

fn. 12 See Part Twelve in this series to be published later for more information on raising issues not preserved by trial counsel.

fn. 13 The case is still pending on appeal.

fn. 14 Third District Administrative Order 48

fn. 15 Supreme Court Rules 6, 341(g)