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"The Brief" - The ALA Blog

  • May 12, 2016 9:30 AM | Anonymous member (Administrator)

    The First District Appellate Court recently held that the circuit court’s denial of a nonparty’s motion to reconsider a judgment was not a final and appealable order, leaving the appellate court without jurisdiction over the nonparty’s appeal of the denial of the motion to reconsider. The appellate court held that an order denying a nonparty’s postjudgment motion is not final and appealable because it does not terminate the litigation or dispose of the rights of the parties. Rejecting the appellant’s alternative argument that she was appealing the underlying judgment, the court further determined that a postjudgment motion filed by a nonparty does not toll the time for filing a notice of appeal from the judgment.


    In MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, MidFirst Bank filed a complaint to foreclose a mortgage that became delinquent after the homeowner died. The complaint named the homeowner’s daughter, Devita McNeal, as the defendant, but only in her capacity as the executor of the estate. With the foreclosure action pending, the probate case was filed and McNeal was named as the estate’s independent executor. MidFirst Bank later prevailed in the foreclosure action on a summary judgment motion.

    In her capacity as executor, McNeal moved to set aside the judgment of foreclosure, and her motion was denied on January 7, 2014. On February 14, 2014, again in her capacity as executor, McNeal filed a motion to reconsider the judgment, arguing that MidFirst Bank failed to comply with mortgage foreclosure laws because the property had been left to McNeal in her mother’s will and the bank had failed to serve her in her individual capacity. The property was sold and the court entered an order confirming the sale on October 25, 2014.

    Just two days prior to the order confirming the sale, on October 23, 2014, McNeal, in her individual capacity, filed a motion to set aside a void judgment of foreclosure pursuant to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2012)), again arguing that MidFirst Bank violated foreclosure laws by failing to serve her in her individual capacity. The circuit court denied the motion because McNeal never sought to intervene in her individual capacity and the foreclosure case had proceeded before McNeal gained interest in the property.

    McNeal appealed on the grounds that the foreclosure proceedings were improper because she was a known heir and never served. MidFirst Bank argued that McNeal lacked standing in the appeal because she was not, and had never been, a party to the case.

    The appellate court agreed that, because McNeal never moved to intervene, she was not a party to the case. For this reason, the court determined, the circuit court should not have considered the postjudgment motion she filed in her individual capacity. The appellate court further determined that McNeal remained a nonparty in the appeal, but declined to dismiss the appeal on standing grounds.

    Setting the standing issue to one side, the appellate court held that it lacked jurisdiction over the appeal because the order from which McNeal appealed — the circuit court’s denial of the postjudgment motion she filed in her individual capacity — was not final and appealable. The court concluded that because McNeal did not intervene in her individual capacity, the order denying her postjudgment motion did not terminate the litigation or otherwise dispose of the rights between the parties, as an order must do to be final or appealable. In so holding, the court described McNeal’s motion as a “nullity” that lacked “all the necessary prerequisites of a final judgment.” MidFirst Bank, 2016 IL App (1st) 150465, ¶ 24.

    The court further rejected McNeal's alternative arguments that the appellate court should have construed her appeal as interlocutory under subsection (a) or (b) of Illinois Supreme Court Rule 304, explaining that McNeal had not demonstrated how the appeal fit within either provision and that neither could be applied. The appellate court also rejected her argument that she was actually appealing the order confirming the sale of the property, which concluded the foreclosure process. In doing so, the court explained that McNeal’s notice of appeal was filed well over 30 days after entry of that underlying judgment, and that her section 2-1203 motion did not toll her time to file a notice of appeal from that judgment because, by the statute’s express terms, only a “party” may file a section 2-1203 postjudgment motion. Id. at ¶ 31 (citing 735 ILCS 5/2-1203 (West 2012)). Accordingly, the court dismissed McNeal’s appeal for lack of jurisdiction. 
     

  • May 09, 2016 9:23 AM | Anonymous member (Administrator)

    Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term that began today Monday, May 9, 2016, with oral arguments scheduled for Tuesday, May 10, 2016; Wednesday, May 11, 2016; Tuesday, May 17, 2016; and Thursday, May 19, 2016. The Court will be hearing arguments at Benedictine University in Lisle, Illinois on May 19, 2016. A total of 8 cases will be heard – 4 civil and 4 criminal. Here are the civil cases with the dates of oral argument:


    Ronald Bayer v. Panduit Corporation, No. 119553—May 11

    James Kakos v. Jerry Bauer, No. 120377—May 11

    William Bremer v. The City of Rockford, Nos. 119889, 119912 (cons.)—May 17

    Randall W. Moon v. Clarissa F. Rhode, No. 119572—May 19


    Two of the civil cases which will be heard include: James Kakos v. Jerry Bauer, which involves the constitutionality of the statute providing for six-person juries, and Moon v. Rhode, which addresses whether the discovery rule applies to wrongful death claims based on medical malpractice. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website. 

    CONSTITUTIONAL LAW – JURY DEMAND

    No. 120377
    Kakos v. Butler

    This appeal concerns the constitutionality of P.A. 98-1132, which requires that all civil jury trials shall be tried by a jury comprised of six members, regardless of the amount in controversy.

    In December of 2014, the General Assembly enacted P.A. 98-1132, which amended the statute governing jury demands. Before the amendment, the statue provided that in all civil jury cases seeking damages of $50,000 or less, the jury shall be comprised of 6 jurors, unless either party demands a jury of 12. The amendment changed the statute to require that all civil jury cases, regardless of the amount in controversy, shall be comprised of 6 jurors, with no option for either party to seek a 12-person jury.

    Defendants filed a jury demand seeking a 12-person jury; however, the Clerk of the Circuit Court refused to accept the jury demand and payment. Defendants then challenged P.A. 98-1132 as unconstitutional on its face as being in direct conflict with article I, section 13 of the Illinois Constitution of 1970, which states: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Defendants argued that parties previously had the right to a 12-person jury.

    The circuit court agreed, finding P.A. 98-1132 facially unconstitutional. It determined that article I, section 13 was ambiguous in its reference to the right “heretofore enjoyed” with respect to jury trials. It examined previous versions of the Illinois Constitution as well as the proceedings of the 1970 Constitutional Convention and concluded that the right to a 12-person jury has been “a continuous, unbroken right” for over 100 years. The court further noted that the Convention delegates considered mandating a 6-person jury and expressly rejected it. The court rejected Plaintiffs’ argument that the United States Constitution allows for 6-person juries, as the issue before the court is whether a statute is in conflict with a provision of the Illinois Constitution.

    The circuit court further found P.A. 98-1132 unconstitutional as a violation of the separation of powers. It found that the judiciary alone has the power to regulate the conduct of trials and the statute conflicts with Illinois Supreme Court Rule 285, which permits a party to elect a 12-person jury. Finally, the court determined that based on research and other scholarship, allowing for a 12-person jury is good public policy.

    Direct Appeal – Supreme Court Rule 302(a): 1/27/16

    PROCEDURE – DISCOVERY RULE

    No. 119572
    Moon v. Rhode

    The issue presented in this appeal is whether the discovery rule applies to wrongful death claims brought under the Wrongful Death Act and Survival Act when those claims are based on medical malpractice.

    Plaintiff’s  decedent  developed  complications  post-surgery.    Two  CT  scans  were performed shortly before she died in May 2009. Plaintiff, a licensed attorney as well the decedent’s son, was appointed as executor of his mother’s estate.  Plaintiff requested his mother’s records which he received in March 2010.  The records were reviewed in April 2011, at which time Plaintiff received oral notification that there was negligent conduct in his mother’s care with respect to interpretation of the CT scans.  Plaintiff received the written certificate of medical negligence in May 2011.

    Plaintiff filed suit against Defendants in March 2013, almost four years after the decedent’s death.  Defendants filed a motion to dismiss based on the statute of limitations, which the circuit court granted.   The Illinois Appellate Court affirmed, holding that the discovery rule did not apply to claims brought under the Wrongful Death and Survival Acts.  It further explained that under section 13-212(a) of the Code of Civil Procedure (the “Code”) (735 ILCS 5/13-212(a)), the statute of limitations begins to run upon knowledge of the death and not on knowledge of the negligent conduct.

    In his petition for leave to appeal, Plaintiff argued that the appellate court erred in not applying the discovery rule to his Wrongful Death and Survival Act claims, where they are based on medical negligence to which the discovery rule applies.   Plaintiff argued that the appellate court’s  ruling  creates  an  artificial  distinction  between  personal  injury  actions  premised  on medical negligence that do not result in death and those that do.  Plaintiff also argued that the reasoning adopted by the appellate court is at odds with existing appellate precedent, all of which applies the discovery rule to wrongful death and survival claims.

    Appellate Court Decision:   2015 IL App (3d) 130613, 34 N.E.3d 1052.   Schmidt, J., with McDade, J., concurring; Lytton, J., dissenting.

    PLA Allowed:  09/30/15

  • May 02, 2016 9:19 AM | Anonymous member (Administrator)

    The Association will host three events during the next month.

    On May 13, 2016, the ALA’s annual roundtable luncheon featuring the justices of the Illinois Appellate Court, Fifth District, will be held at the Gateway Center in Collinsville. Attendees will receive 1 hour of MCLE credit. Following the luncheon, the ALA will host an appellate practice seminar featuring a panel of the Fifth District justices and presentations conducted by local appellate practitioners. Attendees will receive 3 hours of MCLE credit for the seminar.

    On May 24, 2016, the ALA’s annual roundtable luncheon featuring the Judges of the United States Court of Appeals for the Seventh Circuit will be held at the Union League Club in Chicago. Attendees will receive 1 hour of MCLE credit.

    Also on May 24, 2016, the ALA will host a roundtable luncheon and panel discussion featuring the justices of the Illinois Appellate Court, Fourth District, at the Second Presbyterian Church in Bloomington. Attendees will receive 1.75 hours of MCLE credit.

    At all three events, attendees will have the opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere.

    For more information and to register, please click here.

  • April 27, 2016 9:12 AM | Anonymous member (Administrator)

    The Illinois Appellate Court, Third District, recently dismissed a criminal appeal for lack of appellate jurisdiction after the defendant failed to file a notice of appeal within 30 days after the trial court denied a timely post-trial motion, but instead, filed a successive post-trial motion directed against the judgment. As discussed below, the reviewing court held that the successive post-trial motion did not toll the timeframe to file the notice of appeal.

    In People v. Kibbons, 2016 IL App (3d) 150090, Williams Kibbons was charged with two counts of aggravated DUI and one count of leaving the scene of an accident involving personal injury or death. Kibbons pled guilty to one count of aggravated DUI in exchange for the State dismissing the other two counts and agreeing to a sentencing cap of eight years in prison. Kibbons was eventually sentenced to eight years in prison and was admonished of his appeal rights in accordance with  Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) (“…prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion.”).

    Defense counsel filed a motion to reconsider sentence within 30 days of sentencing. That motion was denied on October 18, 2013. Kibbons then retained new counsel, who filed a motion to withdraw the guilty plea on November 15, 2013, alleging that the State’s Attorney was conflicted because he had represented the defendant on a DUI case in 1997. The court denied the motion on April 24, 2014, but gave the defendant time for filing additional pleadings regarding the alleged conflict.

    The defendant filed a motion to withdraw the guilty plea on May 22, 2014, alleging “actual prejudice.” The motion was once again amended on November 13, 2014 and ultimately denied on January 16, 2015. Kibbons appealed the denial of his motion to withdraw the guilty plea and his sentence after filing a notice of appeal on February 6, 2015.

    The Third District Appellate Court dismissed Kibbons’ appeal for lack of jurisdiction. That State argued on appeal that the notice of appeal was untimely when it was not filed within 30 days of the trial court’s denial of Kibbons’ motion to reconsider sentence. To resolve the issue, the court looked to Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013), which provides that “[e]xcept as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.”

    It was undisputed that the notice of appeal was not filed within 30 days of sentencing. Kibbons filed a timely motion to reconsider sentence, but this motion was improper because under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), a defendant who enters into a partially negotiated plea agreement must first move to withdraw his guilty plea before asking the court to reconsider sentence. Notwithstanding that Kibbons’ motion to reconsider sentence was not properly before the court, the Kibbonscourt still considered the motion to reconsider sentence a timely “motion directed against the judgment” for purposes of tolling the time for appeal under Rule 606(b).

    Nonetheless, the Kibbons court did not consider the appeal perfected under 606(b) because the defendant filed a motion to withdraw guilty plea (which he should have done initially, under Rule 604(d)) within 30 days of the denial of the motion to reconsider sentence instead of a notice of appeal. That second motion post-trial motion, however, did not toll the timeframe for defendant to file a notice of appeal.

    Thus, the notice of appeal that Kibbons filed on February 6, 2015 was untimely and the appellate court did not have jurisdiction to hear Kibbons’ appeal.

  • April 20, 2016 8:52 AM | Anonymous member (Administrator)

    The appellate court has again warned litigants and practitioners that when filing an amended complaint after the dismissal of a claim, in order to preserve appellate review of the claim’s dismissal, the claim must be, at a minimum, referred to in all subsequent amended complaints.  In Rubin and Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶¶ 27-33, the First District Appellate Court held that plaintiff, Rubin and Norris, LLC,forfeited review of the dismissal of its breach of contract count because its amended complaint did not refer to or adopt the dismissed count. In doing so, the court, citing the Second District’s holding in Gaylor v. Campion, Curran, Rausch, Gummerson & Dunlop, P.C., 2012 IL App (2d) 110718, described three methods for preserving appellate review of a dismissed claim in a multi-count complaint.


    First, the plaintiff may stand on the dismissed counts, take a voluntary dismissal of the remaining counts, and argue the matter on appeal. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 30. Second, the plaintiff may file an amended pleading that re-alleges, incorporates by reference, or refers to the dismissed counts. Id. As noted in Rubin and Norris, LLC, “[a] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff is preserving the dismissed portions of the former complaints for appeal is sufficient.” Id. (quoting Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 114 (1996)). Third, the plaintiff may perfect an appeal from the dismissal order prior to filing an amended pleading that does not refer to or adopt the dismissed counts. Id.


    In Rubin and Norris, LLC, the trial court dismissed plaintiff’s breach of contract claim in its original complaint with prejudice (id. ¶ 17), and plaintiff filed an amended complaint asserting only a quantum meruit claim and did not refer to or adopt the breach of contract claim. Id. ¶ 33. By doing so, the appellate court held plaintiff had “abandoned and withdrawn” the breach of contract claim, eliminating it from consideration on appeal.

    Id.

    The appellate court followed the Foxcroftforfeiture rule: “[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54 (1983). In addition to promoting the efficient and orderly administration of justice, the court explained, the forfeiture rule also preserves fairness for defendants and aids the court. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 31.


    When a plaintiff files an amended complaint that does not reference claims from an earlier complaint, a defendant can expect that those allegations are no longer at issue. And the appellate court should not have to guess whether or not claims are preserved for appeal. As the court noted, “[h]ad [plaintiff] intended to abandon the breach of contract claim that was dismissed with prejudice from the original complaint, the record in this case might very well look exactly the same.” Id. ¶

    The court’s reminder is an important one. Something as small as a simple paragraph or footnote in the plaintiff’s amended complaint would have preserved the dismissal of the breach of contract count for appeal.

  • April 13, 2016 8:12 AM | Anonymous member (Administrator)

    Last month, the Illinois Supreme Court amended various rules governing appellate practice. Specifically, on March 8, 2016, the court amended Rules 304(b)(6) (Judgments and Orders Appealable without a Special Finding), 306(a)(5) (Interlocutory Appeals by Permission), 306(b) (Procedure for Interlocutory Appeals by Permission), 310.1 (Appellate Settlement Conference Program), 311 (Accelerated Docket), and 312 (Docketing Statement). These amendments became effective immediately. As noted in the respective committee comments, the amendments reflect the recent changes to the Illinois Marriage and Dissolution of Marriage Act, Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS 5/101 et seq.), which changed the terms “Custody,” “Visitation” (as to parents) and “Removal” to “Allocation of Parental Responsibilities,” “Parenting Time” and “Relocation.” 

    Also on March 8, 2016, and effective immediately, the Supreme Court amended Rule 367(c), governing petitions for rehearing. The rule mandates that petitions for rehearing in the Supreme Court shall be mailed to the Report of Decisions at 207 W. Jefferson, Suite 305, Bloomington, Illinois 61701.

    Finally, the Supreme Court amended Rule 604(d), which pertains to appeals by defendants from a judgment entered upon a guilty plea. The amendment removed the words "If a motion to withdraw the plea of guilty is to be filed[.]"

    That portion of the rule now provides:  "The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."

    On March 15, 2016, the Supreme Court amended Rule 315 effective immediately. Subsection (d) and (f), respectively, each now allow for a 7,000 word limitation on petitions for leave to appeal and answers. Subsection (i) accounted for the amendments to the Illinois Marriage and Dissolution of Marriage Act noted above. 


    The amendments can be found here (March 8 order) and here (March 15 order).

  • April 09, 2016 8:08 AM | Anonymous member (Administrator)

    In National Life Real Estate Holdings, LLC v. International Bank of Chicago, 2016 IL App (1st) 151446, the First District Appellate Court confronted an issue rarely tackled by Illinois appellate courts: When does an order entered in supplementary proceedings become “final” for purposes of Illinois Supreme Court Rule 304(b)(4) (eff. Feb. 26, 2010)? In National Life, after a $3,424,228.97 judgment had been entered against the defendant Ronald S. Scarlato (Scarlato) and two limited liability corporations, plaintiff National Life Real Estate Holdings, LLC (National Life) initiated supplementary proceedings and filed a third-party citation to discover assets against International Bank of Chicago (IBC). National Life, 2016 IL App (1st) 151446, ¶¶ 1, 3.


    The citation stated that IBC was prohibited from “making or allowing any transfer or other disposition of, or interfering with, any property *** belonging to the judgment debtor.” Id. ¶ 3. Several months after IBC was served with the citation, IBC, Scarlato and others entered into a construction loan agreement and promissory note wherein IBC agreed to loan Scarlato and other entities $3.5 million. Id. ¶ 4. The loan proceeds were disbursed to various third parties, but none were distributed to Scarlato. Id.


    Thereafter, National Life filed a motion for entry of judgment under section 2-1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1402 (West 2012)), claiming that IBC violated the prohibitive wording of the citation and the lien created thereby by transferring $3.5 million in assets that belonged to Scarlato. National Life, 2016 IL App (1st) 151446, ¶ 5. IBC opposed the motion on the grounds that the loan proceeds were not Scarlato’s “property,” and therefore, it did not violate the citation. Id.

    Following an evidentiary hearing, the trial court denied National Life’s motion for entry of judgment against IBC, finding that the loan proceeds were neither Scarlato’s individually nor delivered to Scarlato. Id.¶¶ 5-6. The trial court’s written memorandum decision stated, “[T]he parties do have remedies remaining.” Id. ¶ 6. The order did not contain a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). National Life, 2016 IL App (1st) 151446, ¶ 11. National Life subsequently filed a notice of appeal. Id.¶ 7.


    Addressing IBC’s jurisdictional challenge, the Appellate Court first examined the language of Rule 304(b)(4), which provides that “[a] final judgment or order entered in a proceeding under section 2-1402 of the Code” is appealable without the finding required for appeals under Rule 304(a). (Emphasis added). Id. ¶¶ 9-10. “An order in a section 2-1402 proceeding is said to be final when the citation petitioner [here, National Life] is in a position to collect against the debtor or a third[-]party, or the citation petitioner has been ultimately foreclosed from doing so.” Id. ¶ 10 (citing D’Agostino v. Lynch, 382 Ill. App. 3d 639, 642 (2008)). Thus, the Appellate Court had to determine “whether the court’s order denying entry of judgment against IBC put National Life in a position to collect against IBC, or whether National Life was ultimately foreclosed from doing so.” Id. ¶ 11.


    After noting the sparsity of Illinois case law on the finality of orders entered in supplementary proceedings, the Appellate Court found In re Marriage of McElwee, 230 Ill. App. 3d 714 (1992) most analogous. National Life, 2016 IL App (1st) 151446, ¶¶ 12-13. McElwee involved an appeal from an order allowing the divorce respondent’s non-wage garnishment to go forward in order to collect a foreign judgment. Id. ¶ 13. Dismissing the appeal for lack of jurisdiction, the McElwee court reasoned: “What is essential for purposes of Rule 304(b)(4) is that there be finality with respect to the supplemental garnishment proceeding. * * * [The order] did not operate to terminate any part of the garnishment. Rather, its effect was simply to allow that garnishment to go forward.” Id. ¶ 13 (quoting In re Marriage of McElwee, 230 Ill. App. 3d at 719).


    Likewise, the trial court’s order in National Life denying National Life’s motion for entry of judgment against IBC “simply allowed the supplementary proceeding to go forward and placed the parties at the beginning of the third-party citation proceedings, not the end.” Id. ¶ 14. The order did not “ultimately foreclose” National Life from proceeding against IBC or prohibit National Life from pursuing other post-judgment remedies pursuant to its third-party citation to discover assets against IBC, which was still pending. Id. ¶¶ 14-15. The court’s order did not dismiss National Life’s citation against IBC. Id. ¶16. Rather, the order simply denied the relief sought in National Life’s motion, i.e., the entry of judgment against IBC for violation of section 2-1402 of the Code. Id. ¶ 15.


    Because National Life was not ultimately foreclosed from collecting against IBC, the trial court’s April 15, 2015 order denying National Life’s motion for entry of judgment was not final for purposes of Rule 304(b)(4). Id. ¶ 16. Accordingly, the Court dismissed National Life’s appeal for lack of jurisdiction. Id. ¶¶ 18-19.

  • April 05, 2016 8:03 AM | Anonymous member (Administrator)

    A recent rule change impacting appellate court briefs provides an opportunity for attorneys to experiment with typography—the general character or appearance of printed matter—and choose fonts with superior readability than Times New Roman. 


    Beginning on January 1, 2016, Supreme Court Rule 341(b) was amended to provide an alternate limit to an appellate brief’s length. Now, instead of solely being bound by page limits, litigants are alternatively bound by word limits—15,000 words for appellants’ and appellees’ briefs, and 7,000 words for reply briefs. Ill. S. Ct. R. 341(b). This rule change ends the need to use smaller, less readable typeface to meet page limits to avoid sacrificing arguments in a complex or multi-faceted appeal.


    Typography impacts readability in brief-length documents. In Professor Ruth Anne Robbins’ article, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of  Legal Writing Documents, she presents basic and valuable concepts of visual design such as contrast, organization, justification, and the use of all capital letters. Journal of the Association of Legal Writing Directors, Vol. 2, at 108-34 (2004). She notes that “the look of the words themselves affects visual perception. Thus, even with text alone, legal writers can create a picture using typography as paint on the canvas of the page.” Id. at 110. Simply put, “[t]he more readable the document, the more likely the reader will remember the content.” Id.

    at 113.   

    Broadly speaking, fonts are distinguishable by two types of attributes. First, type can be proportionally spaced, meaning that the more narrow letters take up less space on the page, or monospaced, meaning that each letter takes up the same amount of width regardless of the natural letter shape. Id.at 121. Second, font can be “serif” or “sans serif.” A “serif” or “wing” font has small horizontal or vertical strokes at the ends of the lines that make up the letters. See id. at 119. Examples of “serif” fonts are Times New Roman and Garamond. “Sans serif” fonts, such as Arial, have no extra strokes at the end of the letter line. Id. Professor Robbins asserts that “[t]he popular view among graphic design experts is to use serif fonts” for large blocks of text. Id. at 119. The Seventh Circuit Court of Appeals even provides a link to Professor Robbins’ article on its homepage. See http://www.ca7.uscourts.gov/ (last accessed March 24, 2016).


    The Seventh Circuit expounds on the choice of font in appellate briefs in its “Requirements and Suggestions for Typography in Briefs and Other Papers.” See http://www.ca7.uscourts.gov/Rules/type.pdf (last accessed March 24, 2016). It advises, “[y]ou can improve your chances by making your briefs typographically superior. It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle.” Id. at 4. It expressly criticizes Times New Roman as a font choice, noting that, “The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention.” Id. at 3. Instead, the Seventh Circuit suggests choosing font with a larger “x-height”—where the letter “x” is taller in relation to a capital letter. Id.at 5. 

    By way of example, the Seventh Circuit offers that both the United States Supreme Court and Solicitor General use Century font, and professional typographers set books in New Baskerville, Book Antiqua, Bookman Old Style, and many other proportionally spaced “serif” faces. Id. “Now that only words count,” it commends, “everyone gains from a more legible typeface, even if that means extra pages.” Id.

    Now that Illinois courts of review accept word limits for briefs, practitioners should seize the opportunity to select what they believe is the most readable typeface. As the Seventh Circuit notes, it won’t guarantee victory, but enhanced ease of reading and increased retention for judges and their clerks can only benefit the appellate practitioner.

  • April 01, 2016 9:06 AM | Anonymous member (Administrator)

    On March 30, 2016, the Illinois Supreme Court entered a supervisory order in a case involving the timeliness of a notice of appeal filed (and file-stamped) via a self-service kiosk made available through the Cook County Clerk's office. 

    In Daniel v. Ripoli, 2015 IL App (1st) 122607-U, the appellate court reviewed the issue of appellate jurisdiction on rehearing after having already ruled on the merits of the appeal (as well as a cross-appeal). The appellate court determined that the record failed to adequately demonstrate appellate jurisdiction over the primary appeal where the notice of appeal was filed at such a kiosk and the record did not contain other evidence of filing, such as a notice of filing or certificate of service. The potential for abuse and the absence of meaningful security measures in connection with the use of the kiosks, the court held, rendered the clerk's file-stamp, standing alone, insufficient to establish that the notice of appeal was timely surrendered to the "exclusive control of the clerk." Id. ¶ 73. The appellate court thus dismissed the primary appeal for want of appellate jurisdiction, and affirmed the trial court's ruling with respect to the issues raised on cross-appeal. Id. ¶¶ 87, 110. See ALA Blog Post, Illinois Appellate Court Rules That Filing Via Kiosk Fails to Establish Timely Notice of Appeal (Jan. 4, 2016).

    The Illinois Supreme Court on March 30, 2016, denied the appellant's petition for leave to appeal but entered a supervisory order directing the appellate court to vacate its jurisdictional ruling and consider the appeal on the merits. It is unclear whether the supreme court's supervisory order signals an implicit recognition of the reliability of file-stamps obtained from such kiosks. Additionally, it remains to be seen whether the appellate court will address the jurisdictional issue on further consideration, and/or whether the appellate court will merely reinstate its prior merits-based ruling, which was entered before it reconsidered the issue of appellate jurisdiction.

  • March 31, 2016 7:56 PM | Anonymous member (Administrator)

      The Association will host two events during the next month. On April 6, 2016, the ALA will host “Reel Appeal: Legal Ethics in the Movies,” moderated by Judge James E. Lockemy of the South Carolina Court of Appeals, at the John Marshall Law School. The event will use film as an avenue to discuss ethical questions appellate judges and attorneys face in their careers on a daily basis. The panelists will include Professor Paul Bergman of the UCLA School of Law and co-author of the book Reel Justice: The Courtroom Goes to the Movies, Kirsten M. Castañeda of Alexander Dubose Jefferson & Townsend LLP in Dallas, and Mark Kressel of Horvitz & Levy LLP in Los Angeles. Attendees will receive 1 hour of MCLE ethics credit.

    On April 12, 2016, the ALA’s annual roundtable luncheon featuring the justices of the Illinois Appellate Court, Second District, will be held at The Centre of Elgin, Heritage Ballroom in Elgin. Space permitting, attendees will enjoy lunch with an individual justice, as each jurist will be seated at a separate table. Attendees will have the rare opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere. Attendees will receive 1 hour of MCLE credit.


    For more information and to register, please click here.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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