"I'LL GET STUCK WITH THE APPEAL IF I FILE THE NOTICE OF APPEAL" - A FABLE

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

Some trial attorneys who refer appeals to my office believe that taking the sole required step to perfect appellate jurisdiction also requires them to prepare the brief and complete all stages of the appeal. I do not want to disparage the concern about getting stuck with an unwanted legal task. However, I will try to convince the doubters that they have nothing to fear when filing the Notice of Appeal. Alternatively, I offer another course of action rather than risk the client's wrath and a malpractice claim due to the failure to file the Notice of Appeal.

1. You won't get stuck - really! (fn. 1)

a. Importance of the Notice of Appeal

The filing of the Notice of Appeal is the only step in the appellate process that is jurisdictional. In other words, delays in filing other appellate documents can be remedied, but a late filing of the Notice deprives the litigant of the right to appeal. The Appellate Court routinely notifies appealing parties that they have failed to file paperwork on time, such as the docketing statement. But even late filing of the brief will not deprive the reviewing court of jurisdiction. The Notice is the only document filed late that will nix the right to be heard. (fn. 2)

b. Protecting the client

The most compelling reason for making sure that the Notice of Appeal is filed on time is to avoid any claim by the client that he or she has lost the right of appeal due to the attorney's failure to perfect the appeal. In the criminal law context, if the client has indicated a desire to appeal, then the lawyer's failure to do so results in a presumption of prejudice to the erstwhile appellant. In other words, regardless of the merits of the appeal, the omission to file the Notice in a timely fashion amounts to ineffective assistance of counsel. (fn. 3)

c. Ease of preparation

Usually preparation of the Notice of Appeal amounts to filling in the blanks on a single piece of paper, sometimes two pages for civil cases. The Supreme Court Rules provide forms for Notices filed in both civil and criminal cases. (fn. 4) There is no reason to vary from these forms and it is not considered bad form to adopt the forms. The Notice is convenient to file, since it is filed like any other document in your case at the office of the circuit clerk, not the clerk of the Appellate Court. The clerk will not charge a fee for filing the document either.

In civil cases, you need only provide the following:

(1) a caption;
(2) the designation of "Notice of Appeal";
(3) the judgment appealed from (include the date);
(4) the relief sought from the Appellate Court (such as reversal of the judgment); and
(5) a signature with address.

In criminal cases, you need only provide the following:

(1) a caption;
(2) the designation of "Notice of Appeal";
(3) the district of the Appellate Court (2nd District for Kane County);
(4) the client's name and address;
(5) names of crimes for which convictions were entered;
(6) the client's sentence; and
(7) a signature.

d. Mistakes are not fatal

One of the benefits conferred by the rules of appellate procedure is the ability to amend your Notice if you made a mistake in filling in the form the first time. Both the civil and the criminal rules permit amendment of the Notice within the original 30-day time limit for filing, without any requirement to obtain leave of court to amend. (fn. 5) The amendment will relate back to the time of filing of the original Notice by virtue of these same rules. For this reason, it is good practice to file the Notice in advance of the 30-day deadline. When errors come to you in the middle of a good night's sleep, you can correct them within the remainder of the 30-day period without fussing with motions and by preparing only one (or two) more piece(s) of paper.

e. Docketing

The appealing party must take added steps to place the appeal on the docket of the Appellate Court after the filing of the Notice of Appeal. Until the appeal is properly docketed, nothing has been filed by the litigant in the Appellate Court constituting an appearance. The filing of the Notice of Appeal is not the equivalent of an appearance in the Appellate Court. In fact, the Notice need not contain any information identifying an attorney for the appellant. Therefore, the filing of the Notice does not require you to complete the appeal.

f. Failure to obtain appellate counsel

What happens if the client wants to appeal, you think you are avoiding a problem by rejecting his or her request to file the Notice, and the client fails to locate an appellate attorney within the 30-day filing deadline? Or, shock of shocks, the client claims you agreed to file the Notice, even though you made no such promise? He or she has lost the right of appeal and needs to find someone other than himself or herself to blame for this situation.

g. Trial attorney's responsibility

In my opinion, the trial attorney has the primary responsibility to protect the client's right to appeal if that person has indicated a desire to do so. Far from avoiding responsibility, you may be exacerbating the situation by failing to spend the five minutes required to prepare the Notice of Appeal. Of course, the appellate lawyer can always prepare the document, provided the client retains counsel in time. But, the appellate lawyer will still need to contact the trial attorney to obtain some of the basic facts to include in the Notice. In my experience, the client does not understand the appeals process and frequently misstates the legal lingo that indicates the judgment has become final for purposes of appeal. While the trial lawyer may have questions on this score as well, at least he or she knows how to distinguish a conviction from a post-trial motion from a post-sentencing motion, etc.

However, once again, what if the client starts the process of locating an appellate advocate but fails to complete the process diligently? I always inform my prospective clients that they must notify me at least one week in advance of the filing deadline if they want me to represent them. I refuse to be responsible for the timely filing of the Notice when contacted within 48 hours of the deadline. Guess who the client will call again when I reject their request for representation?

2. You're not convinced

Perhaps you can achieve the best of both worlds, i.e., preserving the client's appellate rights and avoiding any implication that you will prosecute the appeal. You can prepare the Notice of Appeal in blank and hand it to the client for signature and filing. You might also include a line in the Notice referring to the appellate attorney and state "Pro Se". In this way, you will have a document, supported by a cover letter, demonstrating that you provided the client with the means to appeal to forestall that person from claiming you were negligent. Of course, you are still preparing the form and you are relying upon the client to find his or her way to the clerk's office in time to file by the deadline. In my view, you might as well protect both your client and yourself by filing the Notice and allowing the client to pursue all other steps in 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: appeals@corecomm.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

Footnotes

fn. 1 Doubters may skip immediately to section 2.
fn. 2 Sho-Deen, Inc. v. Michel, 263 Ill.App.3d 288 (2nd Dist., 1994)
fn. 3 Roe v. Flores-Ortega, 145 L.Ed.2d 985 (2000); People v. Hernandez, 283 Ill.App.3d 312, 669 N.E.2d 1326 (4th Dist., 1996)
fn. 4 See Rules 303(b) and 606(d)
fn. 5 See Rules 303(b) and 606(d)