"The Brief" - The ALA Blog

  • June 04, 2014 11:47 AM | Anonymous member (Administrator)
    On May 28, 2014, the Association gathered at the Union League Club in Chicago for its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. ALA Secretary Mike Scodro welcomed Association members and guests, who included many judges of the Seventh Circuit along with judges from the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Cook County Circuit Court.

    Also in attendance was Hon. James Allsop, the Chief Justice of the Federal Court of Australia. After being introduced by Chief Judge Diane Wood, Chief Justice Allsop provided an insightful overview of the Federal Court of Australia. The Chief Justice noted that the court was established in 1976; it is a national court with no districts or circuits; and appeals from its decisions go directly to the High Court of Australia, the highest court in the Australian judicial system.

    Following lunch, during which members of the Seventh Circuit sat at individual tables alongside ALA members, Chief Judge Wood, Judge John Daniel Tinder, and Judge David Hamilton participated in a panel discussion moderated by Scodro. The panel provided helpful tips with respect to both brief writing and presenting oral argument. Regarding briefs, Chief Judge Wood noted the "virtues of being concise and focused" and emphasized that doing so was "immensely helpful" to the court. Judge Hamilton appreciated briefs that were organized in a simple, two-part, structure: (1) why your side is right; followed by (2) why the other side is wrong.

    With respect to oral argument, the panel encouraged the audience to "embrace the tough questions." Chief Judge Wood noted that a well-prepared attorney will thoroughly know the facts and law underlying the case, with Judge Tinder reminding the audience that appellate court judges were "generalists." The panel also provided a helpful reminder that interrupting the judges presiding over oral argument "is a foolish way to win a case."

    The ALA thanks the Judges of the Seventh Circuit for another enjoyable and informative roundtable luncheon.


    Recommended Citation: Charlie Ingrassia, Seventh Circuit: Be Concise and Embrace Tough QuestionsThe Brief, (June 4, 2014), http://applawyers-thebrief.blogspot.com/2014/06/seventh-circuit-be-concise-and-embrace.html.


  • May 31, 2014 10:29 PM | Anonymous member (Administrator)

    On May 29, 2014, the Illinois Supreme Court amended Rule 306, which governs interlocutory appeals by permission. The amendment added language to subsection (c)(5), which provides that if a petition for an interlocutory appeal is granted, the proceedings at the trial court are stayed. The amended subsection (c)(5) provides that the Appellate Court, or a judge on that court, "may vacate or modify the stay." 


    The committee comments note that, "in exceptional circumstances or by agreement of the parties," it may be appropriate for certain aspects of the case to continue at the trial court, "such as discovery, for example." However, the continuation may not interfere with appellate review or otherwise offend "notions of substantial justice," and the trial court is not permitted to enter an order that interferes with appellate review. The amendment becomes effective on July 1, 2014. 


    Will parties be more inclined to seek a permissive interlocutory appeal knowing that certain aspects of the case may proceed at the trial court while the interlocutory appeal (if granted) remains pending?

    Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rule 306: Appellate Court May Vacate or Modify Stay, The Brief, (May 31, 2014), http://applawyers-thebrief.blogspot.com/2014/05/supreme-court-amends-rule-306-appellate.html.


  • May 29, 2014 10:52 AM | Anonymous member (Administrator)

    The recent opinion by the United States Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 2014 US App. LEXIS 7740 (7th Cir., Apr. 24, 2014), serves as a firm reminder that the 28-day time period to file a Rule 59(e) motion is strict and unforgiving.

    Banks sued her former employer and supervisor alleging racial discrimination and retaliation in violation of Title 7 of the Civil Rights Act of 1964, as well as related violations of federal and state law. The district Court granted summary judgment in favor of all of the defendants on all claims. Banks then filed a motion to “alter entry of summary judgment” under Rule 59(e). However, Banks filed her motion on the 29th day following the grant of summary judgment. The district court considered the motion on the merits and denied it six days later. Banks filed her notice of appeal within 30 days of the denial of her Rule 59(e) motion.

    The Seventh Circuit questioned the scope of its jurisdiction on appeal. The court requested that Banks file an additional brief addressing jurisdiction, but was ultimately not persuaded. The reviewing court concluded that, because the motion to “alter entry of summary judgment” was filed one day late, it did not toll the time to appeal from the summary judgment order. The motion instead would be treated as a Rule 60(b) motion. Appellate review was therefore limited to the denial of relief under Rule 60(b), and Banks forfeited direct review of the order granting summary judgment.

    The Seventh Circuit began its Rule 60(b) analysis by noting that relief under that rule is limited, lest it be used to circumvent the time limit set out in Rule 4. A party is entitled to relief under Rule 60(b) when the party raises an issue that could not have been raised under direct appeal. The reviewing court found that the district court did not abuse its discretion in denying Banks’ motion under the Rule 60(b) standard because the only arguments she raised on appeal were ones that could have been raised in the direct appeal, which she forfeited.

    The reviewing court also declined to find that Banks’ motion raised “exceptional circumstances” within the catchall provision provided in Rule 60(b)(6). The court noted that this provision had a narrow application designed to avoid Rule 60(b) being used as a substitute for direct appeal.

    Finally, the reviewing court found that it made no difference for purposes of appellate jurisdiction that the district court considered the untimely motion on the merits. The district court’s denial of an untimely motion could not vest the Seventh Circuit with jurisdiction over the propriety of the summary judgment ruling.

    Recommended Citation: Rosa M. Tumialán, Scope of Appellate Jurisdiction Narrowed by Untimely Rule 59(e) Motion, The Brief, (May 29, 2014), http://applawyers-thebrief.blogspot.com/2014/05/scope-of-appellate-jurisdiction.html. 

  • May 25, 2014 9:44 PM | Anonymous member (Administrator)
    On May 20, 2014, the Association co-hosted an appellate practice seminar with the McLean County Bar Association in Bloomington. The MCBA President, Rusty DePew, welcomed the attendees and introduced the speakers, Brad Elward, ALA President and partner at Heyl, Royster, Voelker & Allen; and Michael Scodro, ALA Secretary, partner at Jenner & Block, and former Illinois Solicitor General.

    Brad Elward discussed interlocutory appeals, providing the particularities of Illinois Supreme Court Rules 304, 306, 307, and 308 while also providing practical advice. Michael Scodro provided insight on appeals to the Illinois Supreme Court, focusing on the requirements and real-world application of Rule 315.


    The ALA thanks the MCBA for co-hosting the event. 


  • May 19, 2014 2:51 PM | Anonymous member (Administrator)

    On May 9, 2014, the Association gathered in downstate Mt. Vernon for its annual roundtable luncheon honoring the Justices of the Fifth District Appellate Court. This year's luncheon honored retiring Appellate Court Justice James Wexstten, who had served on the bench - as both a trial court judge and appellate court justice - for more than 25 years. 


    Special guests, as well as Association members and nonmembers, turned out in force to honor the retiring justice, as more than 95 lawyers and judges attended. Among those paying tribute were Justice Bruce D. Stewart of the Illinois Appellate Court, Fifth District, and retired Circuit Court Judge Thomas H. Sutton of the Second Judicial Circuit. Justice Stewart, who attended law school, practiced law, and served on the appellate court with Justice Wexstten, gave a glowing recap of their long personal and professional relationship. Judge Sutton, who served as circuit judge with Justice Wexstten for many years, brought laughter and tears with their fond memories.


    The ALA thanks the Justices of the Illinois Appellate Court, Fifth District, for another enjoyable and informative roundtable luncheon.


  • May 16, 2014 3:39 PM | Anonymous member (Administrator)

    For decades, defendants in civil actions faced a dilemma if they wished to appear in a case for the first time after judgment to contest the court’s prior personal jurisdiction over them--for want of proper service of process on them--to seek to vacate the judgment, to submit to the jurisdiction of the court, and to defend on the merits. The dilemma was that such an appearance and submission of the defendant to the jurisdiction of the court could "serve to validate retroactively a judgment [that was] void when entered." J.C. Penney Co., Inc. v. West, 114 Ill. App. 3d 644, 646 (1983) (finding against retroactivity but recognizing the existence of conflicting decisions). The alternative was to first seek to vacate the judgment only, and not to immediately submit to the jurisdiction of the court, and not seek to immediately defend on the merits.

    This dilemma was made acute by the reality that seeking only to vacate the judgment for improper service was unattractive for practical reasons: the court is more likely to vacate the prior judgment if the defendant submits to its jurisdiction. Seeking to vacate the judgment for improper service, without also submitting to the court's jurisdiction, might seem overly technical to the court, reducing the likelihood of success of a request only to vacate the judgment.

    In BAC Home Loans Services, LP v. Mitchell, 2014 IL 116311, our supreme court has eliminated that persistent dilemma. BAC involved a mortgage foreclosure. The return of the summons indicated service on the defendant, Kim E. Mitchell, resulting from substitute service on Michelle Foreman by leaving the summons with Foreman at Mitchell’s residence. Mitchell did not respond to the summons within 30 days, and in 2010 BAC obtained a judgment of foreclosure and sale from the court based on the substitute service. Also in 2010, a judicial sale occurred pursuant to the judgment of foreclosure and sale. The court confirmed the sale in 2011. In a mortgage foreclosure action, an order confirming the sale is the final judgment of the court.

    Within 30 days after the trial court entered the final order confirming the sale, Mitchell filed an appearance and a motion to vacate the order confirming the sale. The motion was withdrawn and refiled as a motion to quash, and a petition for relief from, the order confirming the sale. BAC responded to the motion as re-filed, alleging that substitute service on Foreman at the residence was proper and that Foreman was Mitchell’s daughter. Mitchell replied, under oath, that she had no daughters, only a son, and did not know anyone named Michelle Foreman. Mitchell’s motion was denied, and the appellate court affirmed, holding that Mitchell’s actions in the trial court "worked prospectively and retroactively" to validate the orders of the court entered before Mitchell first appeared and moved to vacate the order confirming the sale.


    The supreme court reversed, holding that Mitchell’s actions did not retroactively validate the orders entered prior to Mitchell’s appearance, overruling the decisions from the appellate court permitting retroactive validation of orders entered without personal jurisdiction. In doing so, the court reaffirmed "the longstanding rule that 'a party who submits to the court’s jurisdiction does so only prospectively and the appearance does not retroactively validate orders entered prior to that date.' " BAC Home Loans Services, 2014 IL 116311, ¶ 43 (quoting In re Marriage of Verduna, 126 Ill. 2d 542, 547 (1989)). As a result, the supreme court held that Mitchell had submitted to the trial court's jurisdiction and waived any objection to personal jurisdiction, prospectively only. The court vacated as void all orders entered before Mitchell submitted to the court's jurisdiction and remanded for further proceedings, where Mitchell will have the opportunity to defend the merits of the lawsuit.


    Recommended Citation: Lawrence A. Stein, No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final Judgment, The Brief, (May 16, 2014), http://applawyers-thebrief.blogspot.com/2014/05/no-risk-of-retroactively-validating.html.

  • May 13, 2014 4:15 PM | Anonymous member (Administrator)

    The United States Court of Appeals for the Seventh Circuit has published an updated edition of its Practitioner's Handbook for Appeals. The May 2014 edition can be found here.

  • May 09, 2014 11:50 AM | Anonymous member (Administrator)

    On Friday, June 13, 2014, the ALA will gather at the Union League Club in Chicago for the Installation Luncheon of Steven F. Pflaum as the Association's Forty-Seventh President. Justice Michael B. Hyman of the Illinois Appellate Court, First District, will administer the oath of office. 

    The Association’s Nominating Committee will also present the following slate of Officers and Directors for election at the meeting:

    Officers (2014-2015)
    Vice-President: Michael A. Scodro
    Secretary: Joanne R. Driscoll
    Treasurer: Evan Siegel 

    Directors (2014-2016) 
    Director (1st Dist.): Matthew D. Elster
    Director (1st Dist.): John M. Fitzgerald
    Director (3rd Dist.): Natalie D. Thompson
    Director (1st Dist.): E. King Poor

    Click here for information on how to register for the event. 

  • May 08, 2014 9:48 AM | Anonymous member (Administrator)

    ALA Secretary and former Illinois Solicitor General Mike Scodro recently appeared in a panel discussion on "Chicago Tonight" to discuss the United States Supreme Court's recent opinion in Town of Greece v. Galloway (slip opinion). Video of the discussion can be found here

  • May 07, 2014 12:10 PM | Anonymous member (Administrator)

    How does one decide whether a case is “exceptional”? More to the point, should a reviewing court defer to a trial court’s determination that a particular case was “exceptional”? Those questions lie at the heart of the U.S. Supreme Court’s recent unanimous opinion in Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. ___ (April 29, 2014) (slip opinion). Recognizing that a trial court may be in a superior position to determine whether the facts and circumstances of a particular case merit its designation as “exceptional” – and thus justify an award of attorney fees pursuant to section 285 of the Patent Act – the Court concluded that such decisions should be reviewed under an abuse-of-discretion standard. In reaching its determination, the Court provided a helpful overview of the varying standards of review before federal courts of review. 


    Two companies, Highmark and Allcare, were embroiled in patent litigation. Highmark won summary judgment, and its victory was affirmed on appeal. Highmark then moved for its attorney fees in the district court under section 285 of the Patent Act, which authorizes fee awards to prevailing parties in “exceptional cases.” See 35 U.S.C. §285. The district court awarded fees to Highmark. The Federal Circuit then affirmed the district court’s fee award in part and reversed it in part. The Federal Circuit derived the applicable legal standard from Brooks Furniture Mfg., Inc. v. Dutailier Int’l., Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005), which held that a case is “exceptional” for purposes of section 285 if: (i) a party has engaged in “material inappropriate conduct,” or (ii) the case was “brought in subjective bad faith” and also was “objectively baseless.” In Highmark, the Federal Circuit applied a de novo standard of review to the district court’s determination that the case was “objectively baseless.” 


    The Supreme Court disagreed. The Court noted that, in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. ___ (April 29, 2014), it rejected the Brooks Furniture test “as unduly rigid and inconsistent with the text of §285.” In place of the Brooks Furniture test, the Court in Octane Fitness held that whether a case is “exceptional” depends upon the totality of the circumstances and the district court’s discretion. 


    Consistent with its contemporaneous holding in Octane Fitness, the Court in Highmark held that such decisions should be “reviewed on appeal for abuse of discretion.” Quoting a case that interpreted a similar statutory fee-shift provision, the Court noted that the district court “ ‘is better positioned’ to decide whether a case is exceptional, because it lives with the case over a prolonged period of time” (internal citation omitted). The issue of whether a case is “exceptional” is “not susceptible to ‘useful generalization’ of the sort that de novo review provides, and ‘likely to profit from the experience that an abuse-of-discretion rule will permit to develop’ ” (citation omitted). 


    In a footnote, the Court added an important qualifier: “The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error.” The Court also noted that, while “questions of law may in some cases be relevant to the §285 inquiry, that inquiry generally is, at heart, ‘rooted in factual determinations’ ” (citation omitted). Accordingly, the abuse-of-discretion standard was appropriate and governed all components of the inquiry.

    Recommended Citation: John M. Fitzgerald and Katherine M. O’Brien, U.S. Supreme Court Sets Deferential Standard of Review for Attorney Fee Awards in Patent Cases, The Brief, (May 7, 2014), http://applawyers-thebrief.blogspot.com/2014/05/us-supreme-court-sets-deferential.html.


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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