For the third consecutive year, the ALA and the DuPage County Bar Association (DCBA) cosponsored the "Supreme Court Civil Litigation Year in Review" brown bag luncheon seminar. The popular program, which offered attendees 1.5 hours of valuable CLE credit, focused on Supreme Court Rule changes, statistics regarding petitions for leave to appeal, and opinions issued by the Illinois Supreme Court during the 2014 calendar year. The seminar was conveniently presented in both Wheaton and Chicago, and as a membership benefit, ALA and DCBA members could attend either seminar free of charge.

The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District, along with seasoned appellate practitioners J. Timothy Eaton of Taft Stettinius & Hollister LLP and Michael T. Reagan of Law Offices of Michael T. Reagan. The program began with an overview of Supreme Court Rule changes, many of which are germane to appellate practice and procedure. The panel noted that, for example, the supreme court amended Rules 138, 201, 303, 306, 308, 313, and 367, among others.

The panel then noted that, in 2014, 1,365 petitions for leave to appeal were filed, a decrease from years' past, and that the percentage of petitions granted slightly increased due to fewer petitions being filed.  The panel noted that 85% of the petitions granted involved issues of statutory construction. Further, approximately 22% of the petitions granted resulted in an affirmance while approximately 78% resulted in a reversal (either in part or outright). Thus, it is reasonable to infer that, if the supreme court grants a petition for leave to appeal in a civil matter, some relief from the reviewing court's disposition is likely. Finally, emphasizing the uniformity of the court, the panel noted that, out of approximately 30 civil opinions, there were 5 dissents and 1 special concurrence.  

Thereafter, the panel discussed supreme court opinions issued during the 2014 calendar year. The discussion covered a variety of substantive topics, including conflicts of law, forfeiture, mootness, personal jurisdiction, preservation of error, administrative law, pensions, real estate, retaliatory discharge, and tort law, among many others.  

The ALA thanks the panel members for an information-packed seminar, the DCBA for cosponoring the seminar and hosting the Wheaton presentation, and Neal Gerber & Eisenberg LLP for graciously hosting the Chicago presentation. 

Subject matter jurisdiction over interpleader actions as well as the constitutional case-or-controversy requirement are at the center of a recent decision from the United States Court of Appeals for the Seventh Circuit. In State Farm Life Insurance Co. v. Jonas, __F.3d__, 2014 WL 7399115 (7th Cir. Dec. 31, 2014), a husband and wife named each other as beneficiaries of their life insurance policies. After they divorced, the policies remained in force and later the wife died. The husband then sought to collect the $1 million proceeds from his ex-wife’s policy. The insurer resisted paying because of its concerns that the couple’s children may have been the rightful beneficiaries under their mother’s policy. 

But under the Texas law that governed, an insurer that fails to pay within 60 days of receiving a claim may be assessed interest at 18% a year, plus attorney fees. The only way to avoid such interest and fees under Texas law was to bring an interpleader action, and the insurer did so in federal court. And because the couple’s children did not make a competing claim in this action, the district court ordered the insurer to pay the husband. Yet the husband was dissatisfied that the district court did not also award attorney fees and interest and appealed.

But the Seventh Circuit never reached the merits and dismissed the case for lack of jurisdiction. First, the court pointed out that, though the parties satisfied the “minimal diversity” requirement under the federal interpleader statute (28 U.S.C. § 1335), the insurer failed to meet the requirement that it actually pay the proceeds into the court’s registry. Because the statute requires, in the court’s words, “cash on the barrel-head,” no jurisdiction existed under the interpleader statute.

The Seventh Circuit next considered whether the interpleader action could, in the alternative, be maintained under the general diversity jurisdiction statute (28 U.S. C. § 1332). The parties met the requirements of complete diversity and the jurisdictional amount. But diversity jurisdiction still failed because there was no actual dispute to meet the case or controversy requirement of Article III of the Constitution. The court first noted that there was no competing claim to the proceeds, and the insurer not being “comfortable” paying the proceeds to the husband was not enough. 

The husband argued that there was a sufficient controversy because of the fees and interest that arose after he filed suit. That too failed because, “a case or controversy must exist when a suit begins — and on that date there was no live controversy.” The court stated that if disputes over attorney fees and interest “during litigation could create a justiciable controversy, then no case could be dismissed for lack of one,” since every prevailing party is entitled to some costs. Thus, the court concluded that a dispute over fees and interest arising during the litigation could not “retroactively create jurisdiction.”

Without the paid-in proceeds necessary for the statutory interpleader, and without a live controversy on the date when suit was filed, the Seventh Circuit vacated the district court’s judgment and dismissed the case for lack of subject matter jurisdiction.

Recommended Citation: E. King Poor, No Cash on the Barrel-head, No Controversy, No Interpleader Jurisdiction, The Brief, (February 15, 2015), http://applawyers-thebrief.blogspot.com/2015/02/no-cash-on-barrel-head-no-controversy.html.

The Illinois Supreme Court’s opinion in Williams v. BNSF Railway Co., 2015 IL 117444, clarified when an oral judgment is “entered of record” for purposes of Rule 272, thereby triggering the 30-day appeal period.

The supreme court accepted BNSF’s petition for leave to appeal from the appellate court’s order dismissing the appeal for lack of jurisdiction. Williams, 2015 IL 117444, ¶¶ 2, 24. The appellate court dismissed the appeal, concluding that the oral ruling on April 18, 2012 denying BNSF’s posttrial motion was the final order that triggered BNSF’s time to appeal. Id. ¶¶ 21-22. The appellate court deemed BNSF’s appeal untimely because it was filed within 30 days of the written order entered on June 6, 2012 relating to one posttrial motion issue taken under advisement following the April 18 hearing. Id. ¶¶ 18, 21.

Before petitioning the supreme court for leave to appeal, BNSF petitioned for rehearing in the appellate court. Williams, 2015 IL 117444, ¶ 23. BNSF explained that the appellate court misapprehended that the April 18, 2012 oral ruling was entered of record on that date and then attempted to supplement the record with a certified copy of the law record, which reflected that the April 18, 2012 oral ruling was entered in the record on June 6, 2012. Id. ¶ 23. The petition for rehearing and motion to supplement the record were denied.Id. ¶ 24. 

BNSF’s petition for leave to appeal was accompanied by the motion to supplement the record with the law record. Williams, 2015 IL 117444, ¶ 26. The motion and objections thereto were taken with the case. Id. ¶ 28.

The supreme court rejected the objections to BNSF’s motion to supplement, finding that BNSF was not remiss in seeking leave to include the law record. The supreme court also observed that there was no contention that the proffered law record was inaccurate.Id. ¶¶ 33-34. The court then turned to the merits.

The supreme court first found that the April 18, 2012 oral ruling was not entered of record until June 6, 2012, as reflected in the law record. Williams, 2015 IL 117444, ¶ 45. The court examined Rule 272 as well as case law construing the phrase “entered of record” to conclude that rendering an oral ruling did not constitute entering the judgment of record for purposes of Rule 272. Id. ¶¶ 35-45.

The supreme court court next considered when the time to appeal began to run. Id. ¶ 46. The plaintiff claimed that Rule 272 did not apply to posttrial motions but instead only final judgments. Id. The high court disagreed, observing that, since a timely postjudgment motion tolls the time to appeal until disposition of that motion, it was necessary to look to Rule 272 to determine that date. Id. ¶¶ 47-48. The court held that a ruling on a postjudgment motion constitutes a judgment under Rule 272. Id. ¶ 49. The court then found that BNSF’s notice of appeal filed within 30 days of the June 6, 2012 order was timely. Id. ¶¶ 50-52. The court however, declined BNSF’s invitation to consider issues briefed but not decided by the appellate court and instead remanded the case to the appellate court to consider the merits of BNSF’s appeal.

Recommended Citation: Rosa M. Tumialán, Illinois Supreme Court Clarifies When Oral Judgment is "Entered of Record", The Brief, (February 11, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-clarifies-when.html.

In Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction the interlocutory appeal of the Diocese from the order denying its motion for summary judgment, holding that the collateral-order doctrine did not apply because the order was not effectively unreviewable on appeal from a final judgment. Id. at 1090-92.

Herx worked as a teacher for a Catholic school. Herx, 772 F.3d at 1086. She was discharged because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. Id. at 1087. Herx sued, and the Diocese moved for summary judgment. Id. The district court denied summary judgment in part. Id. The Diocese filed an interlocutory appeal, invoking the collateral-order doctrine of appellate jurisdiction, and Herx moved to dismiss the appeal. Id. at 1088. 

The Seventh Circuit granted Herx’s motion and dismissed the appeal. The reviewing court explained that the collateral-order doctrine “confers finality – and thus immediate appealability -- on a small category” of interlocutory orders. Herx, 772 F.3d at 1088. There are three “stringent” conditions for collateral-order review. Id. at 1089. It requires: “(1) a conclusive decision; (2) on an important issue that is conceptually separate from the merits ... (3) that is effectively unreviewable on an appeal from a final judgment.” Id. In determining whether these requirements are met, the court does not engage in an “individualized jurisdictional inquiry,” but focuses instead “on the entire category to which a claim belongs.” Id. Citing United States Supreme Court precedent, the court emphasized that the doctrine is “narrow” and “modest” in scope. Id. The court explained that the categories of claims to which the doctrine has been applied are those that involve an immunity from trial, such as a public official’s claims of absolute or qualified immunity, a State’s claim of Eleventh Amendment immunity, a foreign government’s claim of sovereign immunity, or an order denying a criminal defendant’s claim of double jeopardy. Id.

The Seventh Circuit focused on the third condition – whether the challenged order would be effectively unreviewable on appeal after final judgment – and explained that the Supreme Court has held that the “crucial question” is “whether deferring review until final judgment so imperils” the interest at stake “as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Id.at 1090 (citations and internal quotation marks omitted). In cases where collateral-order review has been allowed, the court explained, “some particular value of a high order was marshaled in support of the interest in avoiding trial,” including “honoring the separation of powers, preserving the efficiency of government and the initiative of officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual.” Id. (citations and internal quotation marks omitted). 

The Seventh Circuit held that the Diocese’s appeal failed to satisfy this third condition. Although the Diocese had asserted important statutory and constitutional rights in defense against Herx’s claims, it could not assert any immunity from the burdens of trial. Herx, 772 F.3d at 1091. The court also rejected the Diocese’s argument that collateral-order review was necessary to avoid an encroachment on its First Amendment interests in religious liberty, explaining that the district court had not ordered a religious question submitted to the jury and would instruct the jury accordingly. Id. Thus, none of the interests the Diocese asserted would be irreparably harmed by enforcing the ordinary rule that appeals may be taken only after final judgment. Id. at 1091-92.

Because the district court’s decision was not effectively unreviewable after final judgment, the collateral-order doctrine did not apply, and the court dismissed the appeal for lack of jurisdiction. Herx, 772 F.3d at 1092.

Recommended Citation: Myriam Zreczny Kasper, Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final Judgment, The Brief, (February 9, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-collateral-order.html.

In Satkar Hospitality, Inc. v. Fox Television Holdings, No. 11-3572, the United States Court of Appeals for the Seventh Circuit underscored – yet again – the importance of timely filing a notice of appeal. Satkar arose from an alleged “pay to play” scenario that sounds all too familiar in Illinois. In 2007, Satkar (which owned and operated a Schaumburg hotel) won a property tax appeal before the Cook County Board of Review (the Board of Review). In 2009, two news outlets reported that an Illinois State Representative had engineered successful property tax appeals in return for campaign contributions. They identified Satkar and its owners as participants in that scheme. The Board of Review reacted by reversing its 2007 ruling.

Outraged, Satkar and its owners brought suit against the Board of Review, its members, and the media outlets. The plaintiffs brought claims under 42 USC § 1983, and state law claims for defamation and false light. In September 2011, the District Court dismissed the state law claims on the ground that those claims were barred by Illinois’ Anti-SLAPP statute. The state law claims and defenses asserted in the trial court presented interesting legal issues. Ultimately, however, none of those issues were heard by the Seventh Circuit.

When the district court dismissed the plaintiffs’ state law claims on September 21, 2011, it entered a judgment under Rule 54(b), thus starting the 30-day appellate clock. However, a week later, during a September 27, 2011 status conference on the remaining claims, the district court judge (in an apparent moment of confusion) suggested he had not issued a Rule 54(b) finding, and invited the parties to request such a finding. Ultimately, in November 2011 (i.e., well after the expiration of the time for appealing the September 21 judgment), the plaintiffs sought an extension of time to file a notice of appeal. The plaintiffs claimed their delay in filing was due to confusion stemming from the court’s comments at the September 27 hearing. The district court granted the extension, and the plaintiffs filed a notice of appeal.

In a September 10, 2014 opinion, the Seventh Circuit dismissed the plaintiffs’ appeal for lack of jurisdiction. The Seventh Circuit began its analysis by reiterating that the timely filing of a notice of appeal is a jurisdictional requirement, and that the “excusable neglect” exception to the 30-day filing requirement is narrowly construed. Id. The Seventh Circuit further noted that the “unique circumstances” exception to the 30-day requirement (which the trial court relied on as a basis for granting the plaintiffs' motion for an extension of time) had been foreclosed by the United States Supreme Court in Bowles v. Russell, 551 U.S. 205 (2007). Thus, the plaintiffs had to live (or die) based on their ability to demonstrate “excusable neglect.”

The Seventh Circuit held that “excusable neglect” may arise from “misrepresentations by judicial officers” or “plausible misinterpretations of ambiguous rules.” However, the court emphasized that a misunderstanding of an unambiguous order or rule does not rise to the level of excusable neglect. Rather, to establish “excusable neglect” a party must “demonstrate genuine ambiguity or confusion about the scope or application of the rules or some other good reason for missing the deadline.” 

The Seventh Circuit did not believe that the plaintiffs met that standard. While acknowledging the trial court’s erroneous statements, the Seventh Circuit noted that those statements, when taken in context, did not create ambiguity. The district court’s September 21 judgment (and the entry on the docket) very clearly reflected a Rule 54(b) finding. The plaintiffs also acknowledged they understood the requirement that a notice be filed within 30 days of a Rule 54(b) finding. Finally, the plaintiffs did nothing to clear up any “confusion” at the September 27 hearing or thereafter. In the face of those facts, the Seventh Circuit found that plaintiffs simply could not claim they had been duped or confused by the trial court’s statements. Accordingly, their appeal was dismissed.

Recommended Citation: Timothy D. Elliott, Seventh Circuit Underscores – Again – The Need to File a Notice of Appeal Within 30 Days of Judgment, The Brief, (February 4, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-underscores-again-need.html.

In Ghantous v. Ghantous, 2014 IL App (3d) 130792, the Illinois Appellate Court discussed the doctrines of mootness and release of errors in the context of a family dispute. The father, Camille Ghantous, died in 2010. In Camille’s probate case, his wife, Souad, was named administrator of the estate. Id. ¶ 7. As administrator, Souad discovered that she and Camille did not have any ownership interest in the apartment building for which they had given their son, Leo, $1.1 million toward the purchase price. Id. ¶¶ 9, 11.

Thereafter, Souad filed a breach of fiduciary duty action against Leo, alleging that Leo, a licensed attorney, persuaded her and Camille to personally borrow $1.1 million to contribute toward the purchase price of an apartment building as a family business, and use their own multiple properties as collateral. Id. Souad alleged that she discovered that she and Camille did not have any ownership interest that corresponded to the percentage of funds they had contributed to the purchase price of the apartment building. Id. ¶ 11. Leo then initiated three separate lawsuits of his own involving financial disputes with his siblings in the law division. Id. ¶ 7. 

On April 8, 2013, Souad sent an offer letter to Leo detailing terms for a proposed global settlement agreement to resolve the family disputes pending in the chancery action, the probate proceeding, and the three pending lawsuits among her children. Id. ¶ 13. 

On April 15, 2013, Leo’s attorney sent a draft release and settlement agreement incorporating the agreed terms for Souad’s signature. Id. ¶ 14. Souad did not sign and return the proposed release form, so Leo’s attorney filed a motion to enforce on June 12, 2013, in all five pending cases. Souad responded to the motion by alleging that the parties had not reached an agreement because Leo’s proposed release and settlement agreement included language which deviated from Souad’s April 8 offer letter. Id. ¶ 16. 

The trial court found that Leo’s draft release and settlement agreement set forth all the terms of the global settlement agreement. The court ordered all parties to execute the release and settlement agreement and to comply with its terms. 

Souad then filed a motion to reconsider in all five cases, attaching a document, drafted by her attorney and listed as Exhibit G, which was a modified release and settlement agreement. Leo agreed that Exhibit G more accurately reflected the agreed terms of the April 8 letter. On September 24, 2013, the court entered an order, which included all five case numbers, denying Souad’s motion to reconsider. The court then directed the parties to execute the release and settlement agreement prepared by Souad (Exhibit G), with some modifications. Id. ¶ 20. The court entered the same order in all five cases. 

Souad filed a notice of appeal only in the chancery case, arguing that the release and settlement agreement Leo submitted for her signature operated as an acceptance of the terms proposed by Souad in her April 8 offer letter to settle all five cases. Leo contended that the appellate court must decline to exercise its appellate jurisdiction because the doctrines of mootness and release of errors precluded appellate review. Id. ¶ 24. Leo argued that all five cases were functionally consolidated in the trial court and that Souad must comply with the same global release agreement pursuant to the same order entered in all five cases. Souad responded that the five lawsuits were not functionally consolidated. 

The Appellate Court found that, even assuming that the five cases were not functionally consolidated for settlement purposes, the doctrines of mootness and release of errors applied. Id. ¶ 25. Regarding mootness, the reviewing court noted that an appeal is considered moot where events occur that make it impossible for the appellate court to grant effectual relief or where the issues have ceased to exist. Id. ¶27. Because the trial court entered an order simultaneously enforcing the same global release and settlement agreement in the chancery case and the probate case, it would be impossible for the court to effectuate the relief Souad sought without seeking similar relief in the probate action. Id. The court noted that to date, Souad had not sought to avoid the impact of the release and settlement agreement with respect to the probate action. 

Accordingly, even if the appellate court had directed the trial court to vacate the order enforcing the global release and settlement agreement in the chancery case, thereby vacating the court order dismissing this lawsuit against Leo, Souad would still be compelled by court order in the probate case to dismiss the chancery lawsuit as part of the global release and settlement agreement that remained viable in the probate matter. Id. ¶ 30. The appellate court found that the issue raised in the appeal was moot since another identical order was binding on Souad in the probate action. Id. 

Regarding the doctrine of release of errors, the appellate court noted that a litigant was barred or estopped on appeal from attaching a decree or judgment if the same litigant has enjoyed the benefits of that judgment and the opposing party would be placed at a distinct disadvantage upon reversal. Id. ¶ 33. The court found that, in this case, Leo would be at a distinct disadvantage if the court vacated the global release and settlement agreement because that agreement required dismissal of Leo’s three cases against his siblings, which directly impacted the proceedings involving Souad’s husband’s estate. Id. ¶ 36. 

Further, the appellate court found that the order enforcing the global release and settlement agreement entered by the trial court in the probate division required Leo to abandon his active approach to the probate action, which directly benefited Souad. Accordingly, the appellate court concluded that the doctrine of release of errors estopped Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit since she had accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action. Id. ¶ 39.      

Recommended Citation: April Oboikowitch, Family Feud: Illinois Appellate Court Applies Mootness and Release of Errors Doctrines in Case Involving Family Estate, The Brief, (January 30, 2015), http://http://applawyers-thebrief.blogspot.com/2015/01/family-feud-illinois-appellate-court.html#more.

On January 15, 2015, the Association hosted its annual "2014 Criminal Law Supreme Court Year in Review" seminar at the offices of Hinshaw & Culbertson in Chicago. The program featured a lively panel discussion on important criminal law decisions issued by the Illinois Supreme Court during 2014. Justice Daniel L. Schmidt of the Illinois Appellate Court, Third District; retired Justice Warren D. Wolfson of the Illinois Appellate Court, First District;  Leah M. Bendik, Assistant Attorney General; and James E. Chadd, Deputy Illinois Appellate Defender participated in the panel. ALA Vice President Michael A. Scodro of Jenner & Block LLP served as moderator. Each panel member shared her or his unique insight into a substantive area of criminal law and procedure, paying particular attention to recent cases from the state's high court.   

Justice Schmidt opened the discussion with a moving tribute to the late Justice Patrick J. Quinn of the Illinois Appellate Court, First District. Referring to him as one of the "best and brightest," Justice Schmidt noted that Justice Quinn, a regular participant in this seminar, had a storied career as a prosecutor and a jurist. Thereafter, Justice Schmidt focused his comments on searches and seizures under the fourth amendment. Justice Schmidt voiced his disagreement with the supreme court's holding in People v. Cummings, 2014 IL 115769, a case in which the court suppressed evidence after holding that an otherwisie valid traffic stop should not have been prolonged after the initial reasons for the stop had evaporated. Deputy Defender Chadd cordially disagreed with Justice Schmidt, commenting that Cummings was a "sensible and practical" decision.   

Justice Wolfson discussed the confrontation clause, quipping that the sixth amendment "has become his favorite amendment" because the United States Supreme Court had issued three opinions on this topic in the past five years. Justice Wolfson traced the evolution of the confrontation clause from Crawford v. Washington, 541 U.S. 36 (2004), to its application with respect to forensic evidence at issue in Williams v. Illinois, 132 S. Ct. 2221 (2012). Justice Wolfson advised attendees to watch out for Ohio v. Clark, No. 13-1352, (cert. granted, Oct. 2, 2014), where the United States Supreme Court is expected to discuss the meaning of "targeted individuals."

Assistant Attorney General Bendik discussed searches incident to arrests, noting that such searches have two components: the person being arrested and the area within the person's control. Bendik emphasized that criminal attendees should pay attention to which type of search incident to arrest was at issue. Bendik also discussed the aftermath of People v. Aguilar, 2013 IL 112116, where the Illinois Supreme Court held that a state statute banning the carrying of ready-to-use guns was unconstitutional under the second amendment. 

Deputy Defender Chadd focused his comments on postconviction petitions, including the appropriate standard for a successive postconviction petition involving the cause-and-prejudice test as discussed in People v. Smith, 2014 IL 115946. Chadd also discussed other noteworthy cases in the postconviction context, including People v. Hommerson, 2014 IL 115638, where the supreme court held that the failure to attach a statutorily mandated affidavit was a procedural defect that did not warrant dismissal at the first stage of the proceedings.

The ALA thanks the panel members for their insightful remarks and Hinshaw & Culbertson for hosting the program.  

The following article first appeared in "Circuit Rider," the official publication of the 7th Circuit Bar Association. Brian J. Paul authored the article and has kindly allowed us to republish his article.

MAKING ORAL ARGUMENT PRODUCTIVE: JUDGES’ EDITION

Lawyers are taught early on what judges expect of them at oral argument. Much has been written on this topic. Know the record backwards and forwards, and stay within it. Answer the question asked, not the question you wish had been asked. Be civil to opposing counsel, and be respectful to the court. These are some of the basics.
But just as judges have certain expectations of the lawyers who will argue a case, lawyers have certain expectations of the judges who will conduct the argument.  Much less has been written on this topic. So allow this lawyer to make a few suggestions along those lines. 

1. Be active. I know that some cases are yawners, but we can’t address your concerns if you don’t tell us what they are. If you don’t have concerns, then maybe you have a question about the facts, or perhaps you need clarification on a point of law. Whatever it is, please ask us. Allowing us to give an uninterrupted speech probably doesn’t help you, and it doesn’t really help us either. We genuinely want to make the case easier to decide. 

2. Presume good faith. We lawyers sometimes say things in argument that may not ring true, but in my experience most lawyers don’t lie. We may have convinced ourselves of own nonsense, and you’re right to call us on it. But resist the urge to think that we’re trying to pull the wool over your eyes, because we’re probably not. We’re more likely just trying to do the best we can with what we’ve got, even if our efforts may appear misguided. We are confined by the record, and as a result sometimes we feel compelled to try to force a square peg into a round hole. 

3. Allow us to answer the question until we actually don’t. I have heard some arguments in which a judge asks a question, and just a few words into the answer the judge accuses the lawyer of being evasive. Lawyers should immediately answer the question asked, and as directly as possible. Most lawyers try to do that. But sometimes we think we’re answering the question when we aren’t, perhaps because we’ve misunderstood. So before cutting us off in exasperation, on the assumption we’re being less than forthcoming, consider asking the question a different way; give us a second chance. 

4. Accept that we’ve answered your question even if you don’t like our answer.  We all know judges occasionally try to make a point with their colleagues through their questions. We also know judges often come to oral argument predisposed to decide one way or another. That’s only natural if you’ve already read the briefs, and that’s fine. But if we give you an answer that doesn’t advance your point or confirm your initial views, and if it doesn’t appear you can shake us from our answer, consider moving on. Oral arguments, like cross-examinations, get bogged down if the questioner isn’t willing to recognize that some answers just aren’t going to change. 

5. Warn us ahead of time if you think we’ve missed something critical, or if, in a case involving several issues, there are only one or two that really interest you. It goes without saying that we should be well prepared to handle questions on all topics related to our case. But sometimes everyone involved will have missed a fundamental issue. Subject matter jurisdiction comes to mind; there have been some cases in recent years where the plaintiff and the defendant both have just flat missed the boat on jurisdiction. If you think we’ve all blown it, or if you believe a particular issue requires more attention than others, consider giving us a heads up before oral argument—maybe a notice of some sort. “Be prepared to address X” is all the notice needs to say. That way we know to be particularly prepared to discuss X, and, in turn, you’re more likely to benefit when you question us about X. 

6. Try to remain even-tempered even when things have gone south. I can only imagine how frustrating oral argument is at times for appellate judges. You want help deciding cases, and sometimes, for one reason or another, we fail to give you that help. It probably happens more often than we lawyers would care to admit.  But berating an attorney in open court for the faults of his presentation (or worse, because he’s got a bad case) isn’t likely to help matters. Nor will disengaging. Instead, consider firmly but calmly pointing out the problem, and then switching topics. Maybe the lawyer is woefully unprepared to address issue 1 but fully prepared to address issue 2. Through measured persistence, you may find the argument can be salvaged after all. 

7. Recognize that hypotheticals can get rather far afield. This generally isn’t a problem unless you’re using the hypothetical to determine whether a lawyer will admit defeat on a particular point. Remember that our responses to hypothetical questions go only so far; they may help you with your analysis, but they generally do not decide the case.

8. Bear in mind that our clients are watching. No matter how badly someone may want to win, litigants usually can accept defeat if they genuinely think they’ve gotten a fair shake. Not only is it important to be evenhanded, then, it is important to display evenhandedness. After all, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). This may require, for example, asking tough questions of both sides even if you think one side or the other should clearly win. It is also helpful to demonstrate that you have a solid understanding of the case. This will go a long way to convincing the parties that you’ve given thoughtful consideration to their arguments. 

It has been said that a good oral argument isn’t so much an argument but a conversation. That’s true, and when both sides thoughtfully engage in that conversation, oral argument is at its most productive. This article has offered some suggestions for judges on how to foster a truly productive conversation. Next time, I’ll focus on some suggestions in the same vein for lawyers.

In People v. Denson, 2014 IL 116231, the Illinois Supreme Court held that a criminal defendant properly preserved an issue for appellate review where the State filed a motion in limine to admit co-conspirator statements, the defendant filed a response, and the trial court granted the motion after a full hearing. Forfeiture did not apply even though the defendant did not file his own motion in limine or make a contemporaneous objection at trial. The high court's opinion clarified that a defendant is not required to bring his or her own motion in limine so long as the evidentiary issue is litigated in limine, and further, a contemporaneous trial objection following the denial of a motion in limine is required in civil cases but not criminal cases. 

In Denson, a jury convicted the defendant of first-degree murder,  armed robbery, and home invasion. Prior to trial, the State filed a six-page motion in limine to admit certain hearsay statements made by the defendant's co-conspirators. The trial court conducted a hearing on the motion and afforded both sides an opportunity to present arguments. The trial court granted the State's motion.

On appeal, the defendant argued that the trial court erred in granting the motion. The Appellate Court held that the defendant had forfeited this contention because he (1) did not file his own motion in limine to exclude the statements, and (2) did not raise a contemporaneous objection when the statements were admitted at trial. The reviewing court further held that, with one harmless exception, all of the statements were properly admitted. 

The Supreme Court rejected the Appellate Court's forfeiture holding. The court first noted that, with respect to motions in limine, a criminal defendant preserves an issue for review by raising an objection in either a motion in limine or through a contemporaneous trial objection, and including the objection in a posttrial motion. The Supreme Court rejected the Appellate Court's conclusion that a criminal defendant must raise the objection in his own motion in limine, as opposed to raising it in response to the State's motion in limine. The Supreme Court concluded that the Appellate Court's emphasis on which party filed the motion in limine, as opposed to an objection being raised in a motion in limine regardless of the filing party, elevated form over substance. The purpose of forfeiture rules is to encourage defendants to raise an issue at trial to ensure both that the trial court had an opportunity to correct any errors before an appeal is taken and that a defendant does not obtain a reversal through his or her own inaction. The court noted that, regardless of which party initiated the motion in limine, the interests served were exactly the same. 

Regarding a contemporaneous objection at trial, the Supreme Court emphasized that it has consistently held that, to preserve an issue for review, a criminal defendant must raise the objection in either a motion in limine or object at trial, and raise the objection in a posttrial motion. The Supreme Court noted that the Appellate Court correctly concluded that, "in other cases," the denial of a motion in limine was not enough to preserve an issue for review and that a contemporaneous objection at trial was necessary. However, the Appellate Court "went astray" in failing to recognize that those were civil cases and that "the forfeiture rules for civil and criminal cases are different."

After concluding that the defendant properly preserved the issue for review, the Supreme Court affirmed his conviction. 

Recommended Citation: Charlie Ingrassia, Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil Cases, The Brief, (January 19, 2015), http://applawyers-thebrief.blogspot.com/2015/01/supreme-court-clarifies-distinction.html#more.

The Association reminds the appellate bar that the public comment period for proposed amendments to the Federal Rules of Appellate Procedure closes on February 17, 2015. The proposed amendments include changes to rules governing tolling motions (Rule 4); length limits pertaining to appeals by permission (Rule 5); motions (Rule 27); cross-appeals (Rue 28.1); and petitions for panel rehearing (Rule 40); amicus curiae briefs (Rule 29); and computing and extending time (Rule 26); along with other proposals. 

Please click here for a complete list of proposed amendments and for information on how to submit a public comment.