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.

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.

  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.

   The Illinois Appellate Court recently issued an opinion finding that the appellant had forfeited an issue on appeal. Although the main issue of the case was whether the Montreal Convention - a treaty that governs the international carriage of passengers, baggage, and cargo - governed the parties' dispute, which the appellate court held it did, the case also demonstrates the importance of preserving issues for appellate review.

In El-Zoobi v. United Airlines, Inc., 2016 IL App (1st) 150813, plaintiff Sam El-Zoobi was a passenger on a United Airlines flight to China when an announcement was made asking all passengers to turn off their electronic devices. Id. ¶ 3. Flight attendant Janet Tucker observed defendant using his cell phone and asked him to turn it off. El-Zoobi told her the phone was in "airplane mode" and insisted that was sufficient. Id. Tucker alerted the lead flight attendant, Brenda Dismuke, who also told El-Zoobi to turn off his cell phone. El-Zoobi again refused. Id.

Dismuke told the plane's pilots about El-Zoobi and his refusal to turn off his cell phone. Id. A pilot went to speak with El-Zoobi, and when he returned to the cockpit, he told Dismuke that El-Zoobi was allegedly an employee of the Federal Aviation Administration (FAA). Id. Eventually, plaintiff told Dismuke that he turned off his cell phone, and the flight took off as planned. Id. At some point during the flight, Dismuke decided to report plaintiff to the FAA. Id. ¶ 4. When the plane landed and after she arrived at her hotel, she filed a complaint against El-Zoobi on the FAA's website. Id. ¶ 5.

Plaintiff filed a complaint in the circuit court of Cook County against United Airlines, alleging tortuous interference with a business relationship and intentional infliction of emotion distress. Id. ¶ 8. He stated that due to United Airlines' "false complaint," he lost an opportunity to be promoted, suffered a loss of other advancement opportunities and had severe emotional distress. Id.

In response, United Airlines filed a motion to dismiss El-Zoobi's compliant arguing his claim was governed by the Montreal Convention and he failed to state a valid claim for relief under the Convention. Id. The circuit court granted United Airlines' motion because El-Zoobi's alleged injury occurred on board an international flight, and thus, his claim was governed by the Convention (id.), which only allowed recovery for harm caused by accidents resulting in bodily harm. Id. ¶ 12. Furthermore, the Convention provides the sole remedy for passengers on board international flights. Id. ¶ 13. El-Zoobi appealed. Id. ¶ 8.

In addition to arguing on appeal that the Montreal Convention did not apply to his alleged injury (id. ¶ 10), El-Zoobi also argued that article 25 of the Montreal Convention contained an exception, allowing passengers to bring claims under local law if the alleged conduct if willful, including intentional tort claims. Id. ¶ 21. In addressing this argument, the appellate court found that El-Zoobi did not raise this argument in the circuit court, and accordingly, he forfeited arguing it on appeal. Id. The appellate court accordingly affirmed the circuit court's judgment, dismissing El-Zoobi's action. 
 

  On Thursday, March 10, 2016, the Association hosted its annual roundtable luncheon featuring the justices of the Illinois Appellate Court, First District. Held at the Union League Club in Chicago, the luncheon offered ALA members and guests the opportunity to interact with reviewing court jurists and to gain practice pointers from the court's perspective, all while enjoying lunch in a cordial atmosphere.

ALA Vice President Joanne Driscoll welcomed the attendees, which included many justices from the First District. Thereafter, Justice Robert Gordon offered insight on current court initiatives. Specifically, Justice Gordon remarked that the court is implementing mandatory e-filing pursuant to the Illinois Supreme Court's directive and also discussed implications of pro se filings and the Illinois Access to Justice commission. Of note, Justice Gordon discussed the court's effort to expand its mediation program, stating that the program currently gets "very little business." Justice Gordon encouraged the audience to explore appellate court mediation with their clients and offered the reminder that the service is free to parties, most cases settle, and no justice involved in the mediation will be on the panel if the case does not settle.

The ALA thanks the justices of the Illinois Appellate Court, First District, for another engaging and insightful luncheon.

  Judge Diane Woods, Chief Judge of the Seventh Circuit Court of Appeals, appeared on Chicago Tonight recently to discuss various topics of interest to appellate lawyers.

In discussing the current vacancy at the United States Supreme Court, Judge Woods referred to the open seat as "a big loss," which, in the case of a 4-4 vote split, will leave the lower court's ruling in tact.

Judge Wood also described the Supreme Court vetting process as "very thorough," in which speeches from 20 years ago may be viewed and dissected.

The full video interview with Judge Wood is available here.

Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term that began today, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, March 15-17 and Tuesday, March 22, 2016. A total of 13 cases will be heard – 7 criminal and 6 civil. Here are the civil cases with the dates of oral argument:

Carney v. Union Pacific Railroad Co., No. 118984 – March 16

Fattah v. Bim, No. 119365 – March 17

Moline School District No. 40 Board of Education v. Hon. Pat Quinn, No. 119704 – March 17

Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 – March 17

Valfer v. Evanston Northwestern Healthcare, No. 119220 – March 22

J & J Ventures Gaming, LLC v. Wild, Inc., Nos. 119870, 119871, 119872, 119873, 119874 (cons.) – March 22 
 
The Court will hear several cases of interest this term, including Fattah v. Bim involving the implied warranty of habitability and J & J Ventures Gaming, LLC v. Wild, Inc., a case interpreting the Illinois Gaming Act. Below are abbreviated summaries for these two cases. Summaries for all these cases can be accessed by ALA members on the ALA website by clicking on our Cases Pending publication.
 
CONSTRUCTION LAW – IMPLIED WARRANTY OF HABITABILITY

No. 119365
Fattah v. Bim

The issue presented in this appeal is whether a subsequent purchaser of a home is bound by the initial purchaser’s waiver of the implied warranty of habitability, such that the subsequent purchaser is precluded from suing the developer for latent defects.

Defendants were residential real estate developers and constructed a home for sale. They sold it to the initial purchaser, who executed a waiver and disclaimer of the implied warranty of habitability, which became part of the real estate contract by incorporation. The waiver stated that it was binding on the purchaser and her successors. Several years later, the initial purchaser sold the home to Plaintiff as-is. Four months after Plaintiff moved into the home, the porch collapsed. He sued Defendants asserting, among other things, a breach of the implied warranty of habitability. Following a bench trial, the circuit court found in favor of Defendants, concluding that Plaintiff was bound by the initial purchaser’s waiver of the implied warranty of habitability. Additionally, the court noted that Plaintiff purchased the home as-is.

The Illinois Appellate Court reversed, holding that the initial purchaser’s waiver was not binding on Plaintiff because he had no knowledge of the waiver executed by Defendants and the initial purchaser and was not a party to that agreement. Furthermore, the appellate court held that the as-is provision was an agreement between Plaintiff and the initial purchaser and was not a waiver of the implied warranty of habitability as to Defendants.

Appellate Court Decision: 2015 IL App (1st) 140171, 31 N.E.3d 922. Palmer, J., with McBride and Reyes, JJ., concurring.

PLA Allowed: 09/30/15

Oral Argument: 03/17/16

 

SUBJECT MATTER JURISDICTION – ILLINOIS GAMING ACT

Nos. 119870, 119871, 119872, 119873, 119874 (cons.)
J & J Ventures Gaming, LLC v. Wild, Inc.

This consolidated appeal concerns the circuit court’s subject matter jurisdiction over contract disputes arising out of the operation of video gaming terminals.

Under the Illinois Gaming Act (the “Act”) (230 ILCS 40/1 et seq.), the operation of a video gaming terminal is governed by a written use agreement between the owner of the terminal license and the owner of the establishment. Plaintiff J & J Ventures Gaming claimed to have an exclusive right to operate video gaming terminals at various establishments pursuant to its written use agreement with those establishments. Accel Entertainment Gaming, LLC likewise claimed that it had the right to operate video gaming terminals at those establishments under written use agreements it acquired by assignment. Plaintiff filed lawsuits in the circuit court against five establishments seeking a declaration that it was entitled to operate the video gaming terminals in those establishments. Accel Entertainment Gaming moved to intervene in each of those lawsuits. Following the decision in Triple 7 Illinois, LLC v. Gaming & Entertainment Management-Illinois, LLC, 2013 IL App (3d) 120860, the circuit court found in favor of Plaintiff.

On appeal, the Illinois Appellate Court, Fifth District, declined to follow Triple 7 and instead determined sua sponte that the Act granted the Illinois Gaming Board exclusive authority to decide the question of which written use agreement was controlling as a matter of administrative law. Accordingly, the appellate court determined that the circuit court lacked subject matter jurisdiction over Plaintiff’s declaratory judgment actions, vacated the circuit court’s orders, and dismissed the appeals. The appellate court then issued a certificate of importance in each case pursuant to Supreme Court Rule 316, allowing them to be heard by the Illinois Supreme Court.

 

Appellate Court Decision: 2015 IL App (5th) 140092, 38 N.E.3d 194. Stewart, J., with Goldenhersh and Schwarm, JJ., concurring.

 

Certified cases – Supreme Court Rule 316: 09/23/15

Oral Argument: 03/22/16

 

  The case of Pedigo v. Youngblood, 2015 IL App (4th) 140222, makes clear that a contempt finding must be accompanied by a set, actual monetary sanction to be subject to direct appeal under Supreme Court Rule 304(b)(5).

In this matter, on March 4, 2014, the trial court orally pronounced defendant, Sean Youngblood, in contempt for failure to comply with discovery and ordered reasonable attorney fees as a sanction. On March 10, 2014, Youngblood filed a notice of appeal. On March 13, 2014, the trial court entered its written contempt order, stating in part that as a sanction for indirect civil contempt, “Youngblood shall pay reasonable attorney’s fees incurred by the plaintiffs as a result of his failure to answer plaintiffs’ first requests to produce.” Pedigo, 2015 IL App (4th) 140222, ¶ 14. The order further directed plaintiffs to file a fee petition for a determination of reasonable attorney fees. Id.

On appeal, the appellate court first dealt with the timing of Youngblood’s March 10, 2014, notice of appeal. The court noted Rule 303 provides that a notice of appeal filed after the trial court announces its decision, but before entry of the judgment or order, is treated as filed on the date of, and after entry of, the order. Id. ¶ 15. Accordingly, the appellate court treated the notice of appeal filed on March 10, 2014, as filed on the date of, and after entry of, the trial court's written order of March 13, 2014. The appellate court further treated the notice of appeal as referring to the written order. Id.

More problematic – and the real issue of the appeal – was whether a contempt order granting reasonable attorney fees in an amount later to be determined is directly appealable under Supreme Court Rule 304(b)(5). That Rule permits direct appeal from an order “finding a person or entity in contempt of court which imposes a monetary or other penalty.” Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010). The key part of the Rule is the imposition of the monetary penalty, as a contempt order which does not impose sanctions is not final and therefore not reviewable. Id. ¶ 17 (citing In re Estate of Hayden, 361 Ill. App. 3d 1021, 1026 (2005)).

In this matter, the amount of “reasonable attorney’s fees” remained pending and unresolved even by the time the record on appeal was prepared and certified. Id. ¶ 7. The Fourth District noted that because the trial court, in its March 13, 2014 written order, did not impose a “specific monetary sanction, we cannot review the appropriateness of the sanction.” Id. ¶ 17. Accordingly, because Youngblood appealed the contempt order prior to the trial court imposing a monetary sanction, the Fourth District ruled it “lack[ed] jurisdiction under Rule 304(b)(5) to entertain the merits of [this] appeal” (id. ¶ 18), and it dismissed Youngblood’s appeal. Id. ¶ 24.

As a postscript, the appellate court also considered plaintiffs’ request for sanctions pursuant to Supreme Court Rule 375. While Youngblood claimed he filed the appeal in a good-faith effort to address the underlying discovery issue, the appellate court determined the record “belies that assertion” since first, he originally withdrew his motion to vacate the order compelling discovery. Id. ¶ 21. Second, the appellate court noted this was, in fact, the third occasion that Youngblood pursued an appeal prematurely. Id. Accordingly, the appellate court granted plaintiffs’ motion for sanctions, stating the exact amount would be determined after plaintiffs’ submitted a statement of reasonable expenses and attorney fees in connection with the appeal, and after Youngblood had an opportunity to respond. Id. ¶ 22.
 

   The Association will host two events during the next month. On March 10, 2016, the ALA's annual roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will be held at the Union League Club in Chicago. 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.

On March 18, 2016, from 1 p.m. to 5 p.m., the Association will host a half-day advanced appellate practice seminar at the Chicago Bar Association. The seminar will feature various seasoned appellate practitioners, including ALA President and former Illinois Solicitor General Michael A. Scodro and past ALA president Michael W. Rathsack, among others. Topics will include discretionary appeals, motion practice before reviewing courts, post-judgment practice in anticipation of an appeal, petitions for leave to appeal, and appeal bonds. The seminar will also feature a mock oral argument. Attendees will receive 3.75 hours of MCLE credit. 

For more information and to register, please click here. 

  On February 17, 2016, the ALA convened for lunch at the Union League Club in Chicago and enjoyed an interesting discussion on theories of constitutional and statutory interpretation featuring Seventh Circuit Judges Diane Sykes and David Hamilton. The topic was particularly timely in light of the recent passing of Justice Antonin Scalia; no discussion of constitutional interpretation would be complete without frequent reference to Justice Scalia, to whom both speakers paid tribute, as did ALA President Mike Scodro in greeting the luncheon participants.

Judge Sykes began with an overview of the main theories of constitutional interpretation that historically have dominated American jurisprudence: the living constitutionalism of the Warren court, which brings to mind the approach of Justice William Brennan, that the meaning of the broad terms contained in the Constitution should evolve with changes in American society; the political process theory, which confers unrestrained power on the judiciary, an approach largely confined to academia; originalism, which tethers judges to the text of the Constitution and historical context; and pragmatism, an approach that focuses on the consequences of judicial decisions. Judge Sykes explained that pragmatism is prominently featured in the opinions of Seventh Circuit Judge Richard Posner and, to a lesser extent, Supreme Court Justice Stephen Breyer. As an example of how she and her colleagues implement a variety of these constitutional theories, Judge Sykes discussed the Seventh Circuit’s 2013 decision in Moore v. Madigan, which held 2-1 that Illinois was required under the Second Amendment to license the concealed carrying of firearms.

Judge Hamilton theorized that, regardless of the various manners of constitutional interpretation at play in a given case, a judge still must exercise discretion in wielding judicial power. While the originalism/textualism approach developed to rein in what some viewed as a power hungry judiciary in the Warren years, a judge's work still involves, in significant measure, the exercise of judgment and discretion. Making this point with humor, Judge Hamilton quoted Justice Scalia as saying, "I’m an originalist, but not a nut." Judge Hamilton also critiqued the decision in Bush v. Gore and provided examples of cases in which textualism and originalism conflict.

The Association thanks Judge Hamilton and Judge Sykes for the fascinating discussion and also thanks the ALA members and guests for attending the program.