With the recent introduction of Illinois’ new appellate e-filing system, questions abound among participants, including lawyers, staff, and court staff. To foster a collegial forum in which all ALA members and nonmembers can openly discuss difficulties encountered and solutions discovered, the Appellate Lawyers Association is pleased to announce a new Facebook group, “Unofficial Illinois Appellate E-Filing Tips,” which can be accessed here.

While this group is not ALA-affiliated, our membership will benefit from the chance to ask questions and offer answers. The ALA encourages you to share this announcement with your colleagues and friends—all are welcome.

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

Appellate practitioners who want to avoid sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) should consult the First District’s decision in Oruta v. Biomat USA, Inc., 2017 IL App (1st) 152789, which provides a good example of what not to do. The decision also reminds practitioners of a potential resource for combating obnoxious litigants.

On January 14, 2013, the circuit court dismissed with prejudice plaintiff Oruta’s pro se claims against defendant Biomat USA, Inc. In September 2015, however, the plaintiff moved to file a service of summons against the defendant. The court denied that motion on September 29, 2015, noting that the court had dismissed the plaintiff’s claims against the defendant 32 months earlier. The plaintiff immediately filed a notice of appeal and filed an amended notice on May 20, 2016. Both notices of appeal, as well as the plaintiff’s appellate brief, stated that the circuit court entered a final judgment years earlier on January 23, 2012. That being said, the notice of appeal identified the 2015 order as the judgment being appealed.

The reviewing court found the plaintiff failed to demonstrate that the court had jurisdiction to entertain his appeal. If a final judgment was entered in 2012, the 2015 notice of appeal was filed well after the requisite 30-day filing period set forth by Illinois Supreme Court Rule 303(a) (eff. Jan. 1, 2015). Similarly, the plaintiff’s brief set forth no basis for the reviewing court to exercise jurisdiction over the 2013 order. Furthermore, the 2015 order was not appealable, as a final judgment was allegedly entered in 2012. Accordingly, the court agreed with the defendant’s sole contention that the appeal should be dismissed for lack of jurisdiction. Yet, the reviewing court found more was required.

Rule 375(b) authorizes a reviewing court to impose sanctions against a party or his attorney after determining that an appeal or other action is frivolous, not in good faith or primarily taken for an improper purpose. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Additionally, the court can impose sanctions on its own motion. Id. An appeal is generally frivolous where not arguably warranted by law and not grounded in fact. Id. Moreover, harassment, the needless inflation of costs and unnecessary delay constitute improper purposes. Id.Sanctions are within the court’s discretion and may be imposed against pro se litigants under egregious circumstances. Oruta, 2017 IL App (1st) 152789, ¶ 11.

The reviewing court observed that the pro se plaintiff was a serial filer of frivolous appeals, having filed at least seven others, and had repeatedly crossed the line. In an opinion filed the year before, the court had described the plaintiff’s prior improper appeals “so that issues do not repeat themselves,” thereby suggesting that the plaintiff may suffer future consequences for repeating his mistakes. Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 4. Clearly, the plaintiff did not learn his lesson. The reviewing court gave the plaintiff 30 days to show cause why sanctions should not be imposed. The court considered barring the plaintiff from further filings without prior leave of court. Justice Lampkin concurred only in the judgment.

While it remains to be seen whether the plaintiff will be sanctioned, unscrupulous lay persons and practitioners beware: appellate practice is no game.

Beginning July 1, both the Illinois Supreme and Appellate Courts will ONLY accept electronically filed notices of appeal, docketing statements and appearances from the parties’ attorneys.  Additionally, the reviewing courts will ONLY accept electronically filed records on appeal from the Clerk of the Circuit Court of Cook County.

In order to e-file with the reviewing courts, attorneys must register at the Illinois Courts’ website. There, attorneys can also find other resources about e-filing and instructions on how to e-file.

Also beginning July 1, the Clerk of the Circuit Court of Cook County will ONLY accept the submission of trial exhibits, reports of proceedings and supplemental records through its online portal. From this portal, the Clerk will transmit the pertinent records directly to Illinois Supreme and Appellate Courts.

The portal is available on the Clerk’s website along with additional resources and instructions.

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

On Thursday, June 22, the Appellate Lawyers Association installed Evan Siegel as its 50th President. The installation luncheon was held at the Union League Club in Chicago and began with 49th President Joanne Driscoll's opening remarks, which also recapped a wonderful bar year for the ALA. 

Following President Driscoll's remarks, Karen DeGrand introduced Evan, emphasizing how once he joined the ALA, he immediately became involved with the Association's events, including writing an opinion for the 2007 Moot Court Competition. Karen discussed how over the years, Evan had made a tremendous impact within the ALA, including most recently his push to improve the ALA's website and its social media presence. After speaking to Evan's various professional accomplishments, she described Evan out of the workplace as a world traveler, avid cyclist, family man and voracious reader. At the conclusion of her introduction, she swore Evan in as the ALA's 50th President. 


Evan began his installation speech, thanking those in attendance for the privilege to serve as the ALA's President. Evan discussed his 12-year involvement with the ALA and some of the highlights of his experiences. He talked about the ALA's core components of collegiality, civility, and collaboration and how those components guide not only the ALA, but also the appellate law world. 

Evan informed the ALA that his agenda for the upcoming bar year will focus on three main goals: (1) "continue to be engaged in the use of new technologies that modernize the practice of appellate law and bar association membership;" (2) "become an active partner with other bar associations;" and (3) "serve as a bridge between federal and state appeals practice, with a renewed emphasis on programming that informs and educates the bar about the workings of the Seventh Circuit and the Illinois Supreme Court."

Evan also previewed three events for the upcoming bar year. On October 20, the ALA will host a program on the Seventh Circuit’s recent major decisions, featuring Judge Gary Feinerman of the Northern District of Illinois, Michael Scodro, partner at Mayer Brown, and David Franklin, Illinois Solicitor General. On November 15, the ALA will host "Patterns and Practice: How Analyzing the Illinois Supreme Court Can Boost Your Appeals,” an event featuring Kirk Jenkins, who uses analytics to study and explain the workings of the Illinois Supreme Court and other courts of final appeal in the nation’s largest states. On December 7, the ALA will host a roundtable luncheon featuring the Justices of the Illinois Supreme Court. 

Evan's installation was also featured in the Chicago Daily Law Bulletin (behind a paywall). 

Everyone in the ALA looks forward to another successful bar year with Evan as our president. We also thank Joanne Driscoll immensely for her contributions this past year, as well as everyone else in the ALA who contributed.

By Louis J. Manetti
Attorney, Codilis and Associates, PC

The facts section of a brief can—and should—lend itself to the overall advocacy of the brief. The advocate who writes it as a necessary-but-unimportant regurgitation of events misses a valuable opportunity to persuade. Appellate experts give reoccurring advice to maximize the statement of facts.

Drafting an effective statement of facts is crucial to an appellate lawyer’s advocacy. Chief Justice William Rehnquist said, “[t]he brief writer must immerse himself in this chaos of detail and bring order to it by organizing[.]” Ross Guberman, Point Made 93 (2d ed. 2014). The facts section is the lawyer’s opportunity to organize in a compelling way: to cull the determinative facts from the chaos of the cold—and often long—record. Legal writing guru Bryan Garner and Supreme Court Justice Antonin Scalia stress the importance of facts: “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case.” Antonin Scalia & Bryan A. Garner, Making Your Case 9 (2008). 

In his seminal work, Effective Appellate Advocacy, Frederick Wiener warns, “[t]he greatest mistake any lawyer can make, after he has written a fine brief on the law, is to toss in a dry statement of facts and send the thing off to the printer.” Frederick Bernays Wiener, Effective Appellate Advocacy 34 (revised ed. 2004). The strength of the facts section lies in its “selection and juxtaposition, without of course ever appearing to involve the irrelevant.” Id. at 36.

Like every other portion of the brief, the facts section should strive to persuade. Wiener instructs that the facts section, “should always be written in such a way as to advance the cause of the party on whose behalf it is prepared.” Id. Justice Scalia and Garner agree that the facts section must be designed to persuade: “[y]ou advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each.” Scalia & Garner, supra at 94. And the effective brief obeys the maxim of “show, don’t tell.” That is, the lawyer should resist the urge to characterize the facts and tell the court what they mean. “Devote your energies instead to combing through the record in search of facts that are so clear and so strong that they make your case on their own.” Guberman, supra at 67. 

As Garner puts it: “Think of your job as this: you’re trying to induce the judge to seethe in indignation while never revealing your own indignation.” Bryan A. Garner, The Winning Brief 600 (3d ed. 2014). It is more effective for the lawyer’s factual presentation to elicit a reaction than for the lawyer to tell the judges how they should be reacting. But there’s a crucial distinction—although the facts section should aim to persuade, it must not editorialize. “[A] court reading a Statement of Facts wants to feel that it is getting the facts, and not the advocate’s opinions, comments, or contentions.” Wiener, supra at 49.

Experts also emphasize that the facts must be unfailingly accurate. If the facts are inaccurate, the court “will lose faith in you[.]” Wiener, supra at 38. About inaccuracy, Justice Scalia and Garner stress, “[n]othing is easier for the other side to point out, and nothing can so significantly damage your credibility.” Scalia & Garner, supra at 93. What’s worse, a misstatement can cause the reviewing judges to question other assertions in the brief: “[f]alsus in uno falus in omnibus is a standard applied not only to witnesses by lawyers and juries, it is a standard applied to lawyers by appellate judges.” Wiener, supra at 95. 

And although Wiener was writing over sixty years ago it would be a mistake to believe that modern appellate tribunals would be more forgiving of factual errors. Just three years ago, the First District Appellate Court noted a basic and inexcusable inaccuracy: the plaintiff’s brief reported that a defendant’s answer admitted his loan was in default, when in fact the answer contained no such admission. PNC Bank, N.A. v. Mathin, 2014 IL App (1st) 133061-U, ¶ 12 n.1. Justice Hyman—citing to Wiener’s book—wrote a concurrence lamenting that the misstatement had cast a shadow over the rest of the brief. Id. ¶¶ 31-34 (Hyman, J., concurring).

Part of being accurate is tackling bad facts head-on. Bad facts, “will come out anyway,” warn Justice Scalia and Garner, and “if you omit them you simply give opposing counsel an opportunity to show the court that you’re untrustworthy.” Scalia & Garner, supra at 95. As Wiener puts it, if the lawyer omits significant facts, “the opposition will rub your nose in them.” Wiener, supra at 39. Ross Guberman, the president of Legal Writing Pro, suggests blunting the damage of bad facts by beginning the sentence with “although” “to subordinate the bad fact to its more favorable context[.]” Guberman, supra at 82.

Also, seemingly minor stylistic choices can make the facts section more forceful and clear. For instance, subheadings can break an otherwise unwieldy section into digestible parts, “so that the reader can more easily grasp the relevance of what he reads.” Wiener, supra at 36. Guberman points out that good factual subheadings put verbs in the present tense, which is “another way to give your headings a conversational feel.” Guberman, supra at 74. Additionally, lawyers should refrain from listing every single date of an event or document in the record. “Using an exact date signals to the reader that it is important—that the reader should remember it for future reference.” Id.The Legal Writer: 40 Rules for the Art of Legal Writing 61-72 (2d ed. 2003)). Justice Scalia and Garner expound on this: “if you spell out every date, you confuse the reader and bog down the story.” Scalia & Garner, supra at 96. Instead, achieve narrative continuity by using relative phrases like “the next day,” and “three months later.” 

Finally, use the litigants’ names—or at least a label other than their assigned role in the case. Advocates should avoid using the labels “appellant” and “appellee” because it “is bound to confuse; mistaken references are inevitable; and the designations simply reflect the happenstance of the outcome below and do not characterize the parties’ positions in the context of the controversy on appeal.” Wiener, supra at 95. Garner elaborates: “use real names for both parties and let your arguments do the talking. And if your goal is to cast a negative light on your opponent, you’ll have more success by using names anyway[.]” Garner, supra at 244.

The statement of facts can be a powerful narrative that prompts the reviewing judges to decide in the litigant’s favor. Through selection, juxtaposition, and the usages frequently urged by top authorities, the advocate should aim to write the facts “so that the court will want to decide the case in your favor after reading just that portion of your brief.” Wiener, supra at 37. A lawyer who writes a dry statement of facts as an afterthought does so at his or her peril.

According to a press release from the Illinois Supreme Court today, "The Illinois Supreme Court Clerk's Office will join the eFileIL e-filing community on Thursday, June 15. Filers for the state's highest court will need to access the eFileIL filing platform at efile.illinoiscourts.gov and become a registered user through one of the authorized service providers. Supreme Court filers will no longer be able to use the i2File platform as of 11:59 p.m. on Wednesday, June 14."

 

The full press release can be viewed here.

The Appellate Lawyers Association now offers CLE programs online for credit. As part of the ALA’s continuing efforts to bring programming to our members, the ALA now has two recorded programs available online: one featuring Adam Liptak of the New York Times and the other featuring Dean Erwin Chemerinsky, who this July will become the Dean of the University of California Berkeley School of Law.

In Liptak’s program, he offered his reflections on the Supreme Court’s last decade, discussed the challenges and rewards he faces as a national legal reporter, and shared stories from the front lines covering our nation’s highest court. Liptak’s program was recorded live at the Union League Club of Chicago on January 21, 2016.

In Dean Chemerinsky’s program, he discussed five topics relating to the U.S. Supreme Court: the possible outcomes of a 4-4 split on the Court; the pivotal role of Justice Anthony Kennedy; the centrality of issues relating to race in many of the Court’s cases; the confirmation of Justice Neil Gorsuch; and the long-term picture for the Court. Dean Chemerinsky’s program took place at the Standard Club in Chicago on April 21, 2017.

Each program is available to members for $25 and can be watched on any device with Internet access, including a computer, smart phone, tablet, or TV. Viewers will receive one hour of CLE credit for each program.

Instructions on how to purchase and view the programs are available here.

By Nate Nieman
Nieman Law Group

The juvenile appellant in U.S. v. Sealed Defendant Juvenile Male (4), No. 16-3311, (7th Cir. 2017), along with two other juveniles and an adult, allegedly robbed a CVS store in Indianapolis at gunpoint. They were charged in federal court with Hobbs Act Robbery and possession of a firearm during a robbery. The Government sought to transfer the juveniles’ cases for adult prosecution under 18 U.S.C. § 5032. In order to transfer a case under 18 U.S.C. § 5032, the transfer must be “in the interest of justice,” which the court determines by making certain findings related to the offense and the juvenile offender.

The Government moved to have the juveniles examined by government psychologists to provide evidence showing that it would be in the interest of justice to try the juveniles as adults. The juveniles objected, arguing that the examinations, which would be conducted without their lawyers present, violated their Fifth and Sixth Amendment rights. The magistrate disagreed and ordered the juveniles to submit to the examination without their lawyers present. The district court agreed with the magistrate, and the juvenile appellant in this case filed an interlocutory appeal, arguing that the examination would violate his constitutional rights.

The Seventh Circuit never reached the merits of his appeal because the court dismissed the appeal after determining that it was without jurisdiction to hear it. The court has jurisdiction only over final decisions from the district court. 28 U.S.C. § 1291. A final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). However, the court also noted that “There does exist a ‘small class’ of nonfinal orders that ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). These are called “collateral orders,” and they are “immediately appealable if three elements are satisfied: the nonfinal order must ‘(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.’ ” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)).

In determining whether the district court’s order allowing the defendants to be examined by the psychologists without their lawyers present was an immediately appealable collateral order, the Seventh Circuit focused on the third factor—whether the district court’s order allowing this evaluation was “effectively unreviewable” on an appeal from the final judgment of the underlying action. An order is “effectively unreviewable” only when it involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860 (1978). The court determined in this case that the district court’s order allowing the examination was not “effectively unreviewable” under this standard, explaining that “Had M.G. waited to appeal until after the district court had issued an order granting the government’s motion to transfer under 18 U.S.C. § 5032, then we would be able to consider the merits of his argument now,” citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an appealable collateral order).

In other words, the defendant would have had to submit to the government psychologist’s examination and then the court would have to enter a transfer order under 18 U.S.C. § 5032 before the defendant could file an interlocutory appeal challenging the transfer order itself. The court cited cases from three other circuits where defendants had done just that. See Juvenile Male, 554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d Cir.). Because the defendant in this case did not wait until the transfer order was entered before filing his interlocutory appeal, the order allowing the defendant to be examined by the government psychologist was not considered appealable and the Seventh Circuit dismissed his appeal without considering the merits.

By Stephen Soltanzadeh
Associate, Ancel Glink

The First District Appellate Court recently held that a motion for a new trial did not toll the 30-day period for filing a notice of appeal where the record was inconclusive as to the motion’s filing date, even where the prosecutor verbally agreed to “waive” the 30-day requirement for posttrial motions and consented to the defendant filing the motion later than 30 days after judgment.

In People v. Hall, 2017 IL App (1st) 150918, a jury determined that the defendant was a sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. (2014), and the trial court entered an order committing him to the care of the Department of Human Services. The trial court entered judgment on May 14, 2014, after which the parties discussed scheduling posttrial motions with the court. In that discussion, the Assistant State’s Attorney stated that she would “waive the 30 days,” meaning that she would “not object if it’s after the 30 days if it’s all right with the Court.” Defense counsel followed up by asking the court for “June 20,” and the court stated that it would “set that down for any post-trial motions.” The trial court then issued a written order stating that judgment was entered and that the defendant would be transported to court on June 20, 2014, “for further status on this matter.”

At the June 20, 2014 hearing, defense counsel requested leave to file a motion for new trial. In response, the trial court set a date for arguments on posttrial motions. Transcripts from subsequent hearings indicated that a new trial motion was ultimately filed, but it was not clear from the record when the motion was filed, and no file-stamped copy of the motion was included in the record. The court ultimately denied the motion on February 6, 2015, and defense counsel filed a notice of appeal on March 6, 2015.

The People moved to dismiss the appeal, arguing that the appellate court did not have jurisdiction because the new trial motion was not filed within 30 days of the entry of judgment. The defendant responded that the court extended the deadline after the People agreed to the extension, and that the People’s position that a defendant cannot rely on the word of a prosecutor ran counter to the Illinois Rules of Professional Responsibility, which give prosecutors special responsibilities.

The appellate court dismissed the appeal for lack of jurisdiction. It held that the record did not indicate when the posttrial motion was filed, and thus the defendant failed to demonstrate that it was timely, leaving the court without jurisdiction to hear the appeal.

In so holding, the court initially explained that it does not have jurisdiction over an appeal unless the notice of appeal was filed within 30 days of the entry of judgment, or, if a timely posttrial motion was filed, within 30 days of disposition of the motion. It further explained that a posttrial motion must be filed within 30 days of the entry of judgment unless that time is extended by the court. Hall, 2017 IL App (1st) 150918, ¶ 13 (citing 735 ILCS 5/2-1202(c), Ill. Sup. Ct. R. 303(a)(1)).

Turning to the case before it, the appellate court acknowledged that the record was “uncertain” as to whether the trial court had granted the defendant an extension of time to June 20, 2014 to file a motion for a new trial. Hall, 2017 IL App (1st) 150918, ¶ 14. But the appellate court held that even if the trial court had granted an extension, the appellate court lacked jurisdiction because the record did not indicate when the motion for a new trial was filed. Explaining that, as appellant, the defendant bore the burden of preparing a complete record, the appellate court construed the lack of a file-stamped copy of the motion against the defendant and held that he failed to establish that the notice of appeal was timely, leaving the court without jurisdiction over the appeal.

“For the sake of completeness,” the appellate court also noted that the revestment doctrine did not apply because the defendant could not meet all three factors of the revestment doctrine test: that both parties “‘(1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.’” Hall, 2017 IL App (1st) 150918, ¶ 17 (quoting People v. Bailey, 2014 IL 115459, ¶ 25). The court concluded that although the defendant could meet the first two requirements, he could not meet the third because the People actively opposed the motion for new trial and defended the underlying judgment. Accordingly, the appellate court held that the conduct of the Assistant State’s Attorney did not revest the trial court with jurisdiction to hear the defendant’s posttrial motion.

On May 8, President Donald Trump nominated Notre Dame University Law School Professor Amy Coney Barrett to the United States Court of Appeals for the Seventh Cirucit. 

According to the White House's press release, Barrett currently serves as the Diane and M.O. Miller II Research Professor of Law at the Notre Dame University Law School where she teaches federal courts, constitutional law and statutory interpretation. Prior to becoming a faculty member at Notre Dame, Barrett clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Laurence H. Silberman of the United States Court of Appeals for the D.C. Circuit. She also worked as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., and served as a visiting associate professor at the George Washington University Law School and the University of Virginia Law School.