By Larry Wechter
Here is my list of 10 important points to keep in mind about preparing appeals of right to the Appellate Court of Illinois, including advice about handling a case in circuit court in order to preserve issues for appeal.
1. VERBATIM TRANSCRIPTS AND BYSTANDER’S REPORTS
Innumerable appeals are made more difficult or not pursued at all because of the failure to ensure the attendance of court reporters at court proceedings. In these situations, the losing party in the trial court must prepare either a document called a bystander’s report pursuant to Supreme Court Rule 323(c) or an agreed statement of facts per Rule 323(d). A bystander’s report must accurately recite the testimony, arguments and rulings occurring at all important hearings in order to complete the record on appeal. Then the opposing party has the opportunity to object to the contents of the report and require a court hearing on the accuracy of the contrasting versions of the plaintiff and defendant. Even in the best of circumstances, this tedious process adds considerable time and expense to the preliminary requirements of an appeal. When in doubt, spend the relatively minimal amount of money required to hire a court reporter to preserve your client’s ability to present a meaningful appeal.
2. AVOID WAIVER AND FORFEITURE
With few exceptions, issues not properly preserved in the trial court cannot be argued to the Appellate Court. At each stage of the case when an issue arises, you need to make an objection or an offer of proof to avoid losing the appeal before it begins. Therefore, do not simply present a motion in limine before trial without objecting to the introduction of the evidence at trial and repeating the objection in a post-trial motion.
3. OFFERS OF PROOF
Perhaps the most frequently encountered error in the trial court is the failure of counsel to make an offer of proof when his or her proffered evidence has been rejected by the judge. It is NOT sufficient to preserve error in the rejection of evidence by presenting an argument on the matter to the presiding jurist. Instead, you MUST present an offer of proof that contains the anticipated testimony, preferably by examining witnesses on the stand as to the evidence they would have presented if allowed to do so. If the transcripts do not contain a more or less verbatim recitation of your anticipated evidence, then there is nothing for the Appellate Court to review.
4. POST-TRIAL AND POST-SENTENCING MOTIONS
Post-trial motions are required in all criminal cases in order to preserve issues for appeal, regardless of whether the case was tried to the jury or the court. Post-sentencing motions are also required in order to raise claims of error in sentencing in the Appellate Court. In civil cases, this type of motion is only required in jury trials, but it is good discipline to prepare them in cases tried to the court and its timely filing delays the deadline for filing the notice of appeal. Be sure to consult the rules and statutes regarding timely filing of the post-trial motion to avoid the numerous pitfalls involved in premature filing, late filing and repetitive filing.
5. TIMELINESS OF THE NOTICE OF APPEAL
The timely filing of the notice of appeal is the jurisdictional prerequisite to the Appellate Court hearing the case. Pitfalls exist in this area as well, so consult the rules and statutes for the differing treatment in criminal and civil cases. In addition, in some areas of law, such as divorce, the substantive law of that discrete area of practice can determine the finality of orders for purposes of appeal. When in doubt about whether events occurring after the filing of the notice require a second filing, just file again. If multiple notices pertain to the same case, you can always ask the Appellate Court to consolidate the appeal numbers assigned to each case into a single appeal.
6. TIME COMMITMENT
Even the simplest one-issue appeal with a short record of only 200-300 pages requires a substantial time commitment. I rarely devote less than two dozen hours to such appeals from the filing of the notice of appeal to the review of the appellate decision. If you don’t avoid the courthouse, turn off your electronic devices, and ignore your telephone calls for substantial periods of uninterrupted time, then your work product will not command the attention of the justices. The client is best served by a frank discussion of the effort required to produce a worthwhile brief, which justifies the substantial fee you will charge.
7. STATEMENT OF FACTS
DO NOT argue your side of the case in the statement of facts. This portion of the brief is reserved for an objective and complete statement of all facts bearing on the legal issues you raise for review. You must include citations to the record throughout this portion of the brief, at least in every paragraph of the statement. The reviewing courts are becoming stricter on this requirement. Recently, I read a published opinion that dismissed an appeal because of the complete failure to cite to the pages of the record when discussing the facts of the case.
8. CITATIONS OF AUTHORITY
In the argument section of the brief, make sure that you support your discussion of the legal issues with statutory and case citations. But do not overburden your reader with the infamous string citations of multiple cases for a single proposition of law. My practice is to choose one or two recent decisions to support non-controversial points. More thorough discussion of contested issues will require in-depth treatment of the facts of the case law, but once again, pick your best examples and then cite to additional authorities with brevity.
9. CHOOSE YOUR BEST ISSUES
An appeal does not become stronger with the multiplication of issues. If you bury the most promising question or two beneath a mound of frivolous or otherwise low percentage claims, you will actually reduce the attention drawn to your best arguments.
10. DO APPELLATE SECRETS EXIST?
For the most part, an appeal is only as good as the work presented in the trial court. If the groundwork is poor, say by failing to present offers of proof, objections, and comprehensive post-trial motions, then the appeal usually cannot rescue a sinking ship. However, one of the most interesting aspects of appellate practice is the challenge of finding issues poorly preserved in the trial court or not preserved at all, which can be transformed into compelling arguments in the reviewing court. While these opportunities do not occur every day, they present themselves on a regular basis to those practitioners with the background and experience necessary to identify them. If you file an appeal once in a blue moon, at least consult with someone more experienced to avoid obvious blunders. Do not hesitate to inquire from embarrassment -- experienced appellate lawyers usually enjoy this pro bono work for their colleagues.
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@LarryWechterLaw.com; website: larrywechterlaw.com. 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.