At a recent ceremony at the David S. Palmer Arena, Illinois Supreme Court Justice Garman was honored by having the county courthouse named in her honor—it will now be known as the Rita B. Garman Vermilion County Courthouse.

The Commercial-News reports the story.

At the ceremony, Justice Garman noted that early in her career opportunities “for a young woman lawyer were limited[.]” But she gained experience in both government and private practice. And eventually she became an associate judge, then an a circuit judge, then the presiding judge for Vermilion County. She was appointed to the Supreme Court in 2001 and served as the chief judge from 2013 to 2016. The Commercial-News reports that Justice Garman was the first chief justice to serve in every capacity in the state judiciary, and the first woman to hold each of those positions.

The article also reports that over 200 people, including local and state officials, attended the ceremony. Keynote speaker and former Illinois Governor Jim Edgar stated that 40 years ago, he never thought that the Vermilion County courthouse would be named for a judge who was a woman, but that, “How times have changed—and I must say, for the better.” Chief Justice Lloyd Karmeier—Justice Garman’s successor as chief justice—commended the Vermilion County Board and community for having the foresight to honor Justice Garman.

Justice Garman noted that that the ceremony and honor “have made me acutely aware that I am not an island. I am a piece of this community, just as every member of this audience is a piece of a larger whole.”

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

Chief Judge Wood recently issued a call to comply with a rule that requires parties to summarize jurisdiction. In Baez-Sanchez v. Sessions, Nos. 16-3784 and 17-1438, 2017 U.S. App. LEXIS 12306, at *1 (7th Cir. July 10, 2017), Chief Judge Wood released an opinion in two consolidated cases. Id. The chief judge expounds why the jurisdictional summary rule is important to the Court, explicitly reviews the rule’s requirements, and criticizes the widespread failure to follow all aspects of the rule. She states, “I am issuing this opinion in the hope that attorneys practicing in the Seventh Circuit, as well as our pro selitigants, will take heed and avoid these errors in the future.” Id. at *2.

The opinion explains that the Seventh Circuit screens all of its appeals to make sure that there are no jurisdictional problems—either in the district court or on appeal. Id. at *1-2. To screen cases, the Court relies on jurisdictional information that the parties supply. Id. at *2. The Court must have full and accurate jurisdictional statements because “for centuries it has been recognized that federal courts have an obligation—to assure themselves of their own jurisdiction.” Id. at *8 (quoting Kelly v. U.S., 29 F.3d 1107, 1113 (7th Cir. 1994)). Cases like Belleville Catering Co. v. Champaign Market Place, LLC, 350 F.3d 691, 693 (7th Cir. 2003) stress how seriously the Court takes jurisdiction. There, the appellee suggested that the Seventh Circuit should simply rule on the appeal’s merits—even though it was discovered that diversity jurisdiction was lacking—because it would establish finality, and surely the court had ruled despite jurisdiction in the past. Id. The Court emphasized that this statement “leaves us agog . . . . [t]he proposition that the Seventh Circuit has [ruled without jurisdiction] in the past—a proposition unsupported by any citation—accuses the court of dereliction combined with usurpation.” Id. The jurisdictional summary acts as a bulwark against these threats.

Federal Rule of Appellate Procedure 28, and its corresponding circuit rule unique to the Seventh Circuit, mandate what must be in a jurisdictional statement. Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *3. The appellant or petitioner must establish four things. First, appellants must show the basis for the district court’s jurisdiction. Id. at *3. This includes identifying the specific statute if federal question jurisdiction is involved, and showing the jurisdictional amount and citizenship—not residence—of each party if the case concerns diversity jurisdiction. Id. at *3-4. The opinion cautions that to articulate citizenship for an organization the litigant must work back through the ownership structure until either an individual human being or a formal corporation is identified. Id. at *7. Second, the jurisdictional statement must demonstrate the appellate court’s jurisdiction. Id. at *3. Third, it must articulate the dates showing that the appeal is timely—including the specific dates to show the judgment, any postjudgment motions and when they were resolved, and when the notice of appeal was filed. Id. at *3-4. Last, the statement must provide facts establishing the judgment’s finality or an exception to the final-judgment rule. Id. at *3.

The opinion then turns to appellees, who have their own “equally important” obligations under the rule. Id. at *6. The appellee must explicitly state whether the appellant’s jurisdictional summary is complete and correct. Id. Chief Judge Wood points out that “complete” and “correct” are not synonyms, and the appellee must verify that the appellant’s statement is both. Id. at *7. If it is not, the appellee must provide a complete jurisdictional summary. Id. at *6.

The opinion notes that “a distressing number of briefs filed in this court do not comply with the requirements” for jurisdictional statements. Id. at *2; see also The Practitioner’s Handbook for Appeals, at 134, located at http://www.ca7.uscourts.gov/forms/Handbook.pdf (reporting that the clerk’s office rejects about 10-15% of all submitted briefs because of rule violations). The appellees’ briefs submitted to the chief judge in the two consolidated cases illustrated this problem. In one case, the Attorney General of the United States’s brief reported that the petitioner’s “jurisdictional statement is correct.” Id. at *8-9. The statement was inadequate because it did not say anything about completeness. Id. at *9. The brief in the second case made “the mirror-image problem.” Id. That is, it declared that the appellant’s statement provided “a complete jurisdictional summary”—saying nothing about its correctness. Id. Hence, the Court struck both briefs and ordered the parties to file complying briefs within seven days. Id. at *10.

The chief judge’s frustration with the widespread failure to follow Appellate Procedure Rule 28 and its corresponding circuit rule was palpable. “There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws.” Id. at *9. For guidance, the opinion directs litigants to a jurisdictional checklist that the Court provides, http://www.ca7.uscourts.gov/forms/check.pdf, and the recently updated Practitioner’s Handbook for Appeals, http://www.ca7.uscourts.gov/forms/Handbook.pdf. Id. at *8. In closing, Chief Judge Wood expresses her hope that the opinion “will prevent the same problems from continuing to arise.” Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *10.

The Chicago Bar Association recently started a new initiative to help communities in Chicago suffering from pervasive gun violence. On November 3, 2017, from 9 a.m. to 12:30 p.m., the CBA will host “A Call To Action: Communities Suffering From Gun Violence Meet Lawyers Offering Help.”
 
At the meeting, 20 community representatives from various Chicago neighborhoods will meet with lawyers, seeking legal assistance in four specific areas: (1) mental health services; (2) police/community relationships; (3) faith-based community services; and (4) jobs for high-risk men and women.
 
During the meeting, community representatives will speak about the four areas of need. The lawyers in attendance will then have an opportunity to speak to these representatives to better understand their needs and determine how they can help meet those needs.
 
Planning meetings about the initiative will take place on Wednesday, August 23 and 30 at 12:00 p.m. at the Chicago Bar Association building.
 
If you are interested in volunteering your services, please e-mail Terry Murphy (tmurphy@chicagobar.org) and let him know the area you would like to volunteer with.

By Andrew Kwalwaser 
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In People v. Grigorov, 2017 IL App (1st) 143274, a panel of the First District of the Illinois Appellate Court granted a defendant's request for presentencing detention credit but found that it lacked jurisdiction over other claims that he raised for the first time on appeal.
 
In April 2014, the defendant, George Grigorov, pleaded guilty to aggravated driving under the influence of alcohol and driving on a revoked or suspended license. The circuit court sentenced him to concurrent prison terms of six and three years, respectively, with "all mandatory fines, fees, and court costs." He did not file a Rule 604(d) motion to reconsider his sentence or withdraw his plea, nor did he file a timely notice of appeal. In August 2014, however, he filed a petition pursuant to section 5-9-2 of the Unified Code of Corrections (730 ILCS 5/5-9-2 (West 2014)), requesting that the circuit court vacate $6,000 in imposed "assessments" due to his inability to pay. In September 2014, the circuit court denied the petition.
 
On appeal, the defendant abandoned his claim that his fines should be revoked due to his inability to pay and argued, for the first time, that (1) he should receive $975 in presentencing detention credit against his fines pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)), and (2) certain fines and fees were erroneously assessed.

As to his first claim of error, the appellate court granted the defendant presentencing detention credit. The court observed that, although the defendant's claims on appeal were "entirely new and unrelated" to his section 5-9-2 petition, section 110-14 of the Code of Criminal Procedure of 1963 allows the award of presentencing credit "merely 'upon application of the defendant.' " 725 ILCS 5/110-14 (West 2012). As the supreme court explained in People v. Caballero, 228 Ill. 2d 79, 88 (2008), a defendant can apply for credit "at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding." Based upon this language, the court found that the interests of justice permitted the defendant to raise his claim for presentencing detention credit for the first time on appeal from the denial of his section 5-9-2 petition.
 
As to the defendant's contention that certain fines and fees were erroneously assessed, the court declined to reach the merits of his argument for several reasons. First, the court found that it lacked jurisdiction over his claims because they were not raised in the trial court and, moreover, section 5-9-2 of the Unified Code of Corrections "only deals with fines, not fees." Second, the court observed that the defendant did not file a Rule 604(d) motion, a necessary step for attacking fines and fees on appeal. Third, the court held that, in light of the abolition of the void judgment rule in People v. Castleberry, 2015 IL 116916, unauthorized fees are not void. In so holding, the court followed a line of decisions reaching the same conclusion and rejected the defendant's reliance on the only opinion that has held otherwise, People v. McCray, 2016 IL App (3d) 140554.

Fourth, the court found that the plain-error rule did not apply because the fees imposed against the defendant were not defects that affected his substantial rights, but rather were mathematical mistakes that did not implicate his right to a fair sentencing hearing. Finally, the court noted that judicial economy did not favor considering the defendant's arguments on the merits because "notions of judicial economy, by themselves, cannot create jurisdiction where it does not otherwise exist." The court observed that judicial economy is best served when fines and fees are resolved at the circuit court level, particularly in situations like the case at bar, where the defendant is indigent and the possibility of collecting against him does not justify the resources expended in litigating the matter on appeal. 

On Monday, September 11, United States Supreme Court Justice Ruth Bader Ginsburg will speak at the Auditorium Theatre in Chicago with United States Court of Appeals Judge Ann Claire Williams.

Justice Ginsburg, who has served on the Supreme Court since 1993, will discuss her life and judicial career. Judge Williams has served on the Seventh Circuit since 1999 and recently assumed senior status.

Individual tickets go on sale on July 28 at 10 a.m. and are $35 for the general public.

Please visit here for more information.

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.