I DON’T DO POST-TRIAL MOTIONS” OR “I WASN’T PAID FOR THAT WORK”: THE PERILS OF CASTING THE CLIENT ADRIFT IN CIVIL CASES

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2013

I. INTRODUCTION

In my immediately previous article1, I discussed the perils of premature abandonment of the client’s criminal case by his or her trial attorney. In the following discussion, I address the parallel problem of failing to diligently present post-trial motions in civil cases2.

II. THE THREAT OF WAIVER/FORFEITURE

The consequences of a reviewing court finding a forfeiture or waiver of your client’s appellate rights are as real, if not more so, in a civil case as in a criminal prosecution. Not only have you failed to preserve issues the client sought to raise on appeal, but there are no civil equivalents to the criminal concepts of plain error, fundamental fairness and other constitutional considerations helping to protect the client’s rights regardless of the lawyer’s default3. As a result, the client may have a direct action against you for your allegedly negligent performance. A legal malpractice suit entices the former client with a hoped-for pot of gold in the form of a money judgment to be satisfied by your insurer and/or from your own pocketbook. By contrast, the far more likely remedy in criminal cases finding that you were ineffective is a new trial. Remember that in criminal cases, defendants may not recover monetary awards from their ineffective attorneys unless they prove their actual innocence of the charge(s)4, not simply the failure of proof beyond a reasonable doubt or even the entry of an acquittal. Therefore, failing to present a post-judgment motion in a civil case carries far more potential to injure your reputation and your retirement plans than a similar failure in a criminal case.

III. CIVIL CASES - LEGAL MALPRACTICE

You may recall from the last article on this subject relating to criminal cases that prejudice to the defendant is presumed from the loss of the right to appeal, regardless of the merits of the claims of error. By contrast, in civil cases, the failure to preserve the client’s right to appeal only permits a monetary recovery if the client can prove that he or she would have succeeded in the underlying lawsuit5. At first blush, you might think this insulates you more effectively from an adverse result than the presumption applicable in a criminal case. But in this situation, you are in store for extended litigation to determine your negligence or lack thereof because of the ease of pleading a case involving the failure to file a notice of appeal.

My contention that the obligation to file a post-trial motion rather than abandon the client’s case applies with at least equal force to civil litigation as it does to the defense of criminal cases. The right to appeal from a final judgment in a civil case rests on the same constitutional basis as the right to appeal from a final judgment in a criminal case6. In addition, criminal law and procedure can be difficult enough for the layman to tackle. But civil procedure covers far more legal territory, with more complicated rules pertaining to finality and appealability (or partial appealability) of court orders. Therefore, I contest any claim that the amount of the legal fee or the terms of the fee agreement can dispense with the obligation to preserve issues for appeal.

As discussed in the last article, I advise counsel to inform the client of the option to appeal, to determine the person’s wishes about whether to fight on, and then to memorialize the conversation(s) in writing. A written acknowledgement that the client does not desire to appeal is advisable if he or she does not want to prolong the battle. This simple expedient will protect you against any tardy accusation that this information was never conveyed to the disgruntled former client and that you lost the right to appeal.

IV. DEADLINES IN CIVIL CASES

A. JURY TRIALS

Supreme Court Rule 366(b)(2)(iii) requires that a party appealing from a jury verdict must file a post-trial motion to avoid forfeiture of all claims on appeal. The deadline for filing the motion is 30 days after the entry of the judgment7. You can obtain an extension of time to file the motion, BUT THE EXTENSION MUST BE GRANTED, NOT SIMPLY REQUESTED, WITHIN THE 30-DAY DEADLINE8. If you simply file the motion within 30 days, but do not bring it to hearing and a decision granting relief within 30 days, then the court loses jurisdiction to allow an extension, creating another scenario risking the loss of the right to appeal9. You may obtain multiple extensions, but each subsequent extension must be granted within the time period allowed for filing the motion in the most recent court order10. These requirements apply equally to appeals and cross-appeals11. Exceptions to the requirement of filing a post-trial motion apply where the court grants a motion for directed verdict or where the appeal seeks review of an order entered after discharge of the jury12.

What about seeking reconsideration of the court’s ruling on an initial post-judgment motion? Supreme Court Rule 303(a)(2) provides that “[n]o request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed under this rule.” Supreme Court Rule 274 further states that “[a] party may make only one postjudgment motion directed at a judgment order that is otherwise final.” Therefore, if the court’s calendar will not permit you to obtain a ruling on the motion to reconsider within 30 days of the denial of your post-trial motion, then you are engaging in a futile act because of the requirement to file the notice of appeal within 30 days. In my opinion, the extremely remote possibility of changing the court’s mind after unsuccessful rulings at trial and on the post-judgment motion does not justify the danger of losing the right to appeal.

What if you won after trial, but your opponent’s post-judgment motion succeeded in changing the court’s mind? If the court has modified the initial final judgment order or has entered a different judgment or order, then Supreme Court Rule 274 grants you the right to file a post-judgment motion within another 30 day period13. In this situation, you have the opportunity to reverse the reversal of the judgment.

B. BENCH TRIALS

Supreme Court Rule 366(b)(3)(ii) does not require the filing of post-judgment motions in non-jury cases. Logically, this rule should apply to situations involving stipulated bench trials. However, I still recommend the filing of a post-judgment motion based on my usual admonition that clear articulation of the grounds for appeal will assist in formulating the arguments in the brief. You should not worry about waiving issues on appeal if you forget to include them in the motion because the language of the rule negates any possibility of waiver. If you choose to follow my advice, you must file the motion within 30 days after the entry of the judgment, unless you obtain an extension under the same restrictions discussed in subsection IVA above14.

I acknowledge that strategic considerations may prompt a litigant to avoid filing any motion at all. For instance, the trial court’s ruling might display some fundamental misunderstanding of the law or hostility to its fair application. In this scenario, the party may want to forego a post-judgment challenge to the decision to avoid giving the court the opportunity to “clean up” the adverse ruling. I hasten to state that these scenarios represent unusual exceptions to the run-of-the-mill appeal.

V. CONTENTS OF THE MOTION IN CIVIL CASES

Just as in criminal cases, you should include all pre-trial and trial issues in the motion that are not frivolous and that were raised in a timely fashion in the trial court in order to give appellate counsel maximum discretion in sorting out the wheat from the chaff. Each issue in the motion must be specific enough to identify the error allegedly occurring in the trial court. Thus, assertions such as “the trial court erred in refusing Plaintiff’s instruction #7” will be insufficient to preserve your legal issue15, while a claim that “the trial court erred in refusing Plaintiff’s instruction #7 where the evidence raised the issue of contributory negligence” will suffice16.

VI. CAN YOU AGREE TO DENIAL OF THE MOTION?

Definitely not!17 Consenting to denial of a post-trial motion constitutes a waiver of all errors alleged in the document. By consenting to denial of the motion, you fail to preserve the purpose of post-trial proceedings, which is to give the judge the opportunity to correct errors occurring earlier in the case.

VII. CAN YOU REST ON THE CONTENTS OF THE MOTION?

Why would you take this approach? However remote the possibility of overturning the judgment, your job is to advocate for your client and to make the best possible record for appeal. Though the arguments need not be extensive, they should reiterate your position. Who knows, maybe the judge will make a misstep in commenting on your argument and give you a leg up for a reversal?

The bottom line: Bite the bullet and file a post-trial motion.

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@larrywechterlaw.com. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

Footnotes

1 See Bar Briefs, December 2012, at 37-40.

2 Just as in the previous article, the premise of this discussion is that the client has expressed a desire to appeal -- or at a later date claims to have expressed this desire to his or her trial attorney.

3 But see Johnson v. Transport International Pool, Inc., 345 Ill.App.3d 471, 474 (1st Dist., 2003) for the reviewing court’s authority to consider an appeal lacking a post-trial motion where there are “concerns for potential deterioration of the integrity and reputation of the judicial process.”

4 Herrera-Corral v. Hyman, 408 Ill.App.3d 672, 674 (1st Dist., 2011)

5 Governmental Interinsurance Exchange v. Judd, 221 Ill.2d 195, 200 (2006)

6 1970 Illinois Constitution, Article VI, section 6; People v. Ross, 229 Ill.2d 255, 268-269 (2008)

7 735 ILCS 5/2-1202(c)

8 735 ILCS 5/2-1202(c)

9 Trentman v. Kappel, 333 Ill.App.3d 440, 441-443 (5th Dist., 2002)

10 Trentman v. Kappel, 333 Ill.App.3d 440, 441-443 (5th Dist., 2002)

11 Barry Mogul & Assoc., Inc. v. Terrestris Development Co., 267 Ill.App.3d 742, 755 (2nd Dist., 1994)

12 Barry Mogul & Assoc, Inc. v. Terrestris Development Co., 267 Ill.App.3d 742, 755 (2nd Dist., 1994)

13 Also see the second sentence of 735 ILCS 5/2-1202(c), which was enacted prior to promulgation of Rule 274.

14 735 ILCS 5/2-1203(a)

15 Brown v. Decatur Memorial Hospital, 83 Ill.2d 344, 347-353 (1980); Schultz v. Republic Insurance Co., 124 Ill.App.3d 342, 342-345 (1st Dist., 1984)

16 Hanke v. Wacker, 217 Ill.App.3d 151, 155-158 (5th Dist., 1991)

17 Page v. Estate of Page, 66 Ill.App.3d 214 (5th Dist., 1978)