"The Brief" - The ALA Blog

  • September 17, 2020 7:31 AM | Carson Griffis (Administrator)

    From September 21 to October 23, 2020, the Office of the State Appellate Defender is presenting a free, five-week online training course for attorneys who want to participate in the Illinois Supreme Court's pro bono criminal appeals program.  The course will walk participants through a criminal trial in Illinois to assist them in spotting issues to raise on appeal, familiarize participants with relevant Supreme and Appellate Court rules, advise them about client relations, and more.  Completing the course will qualify you to participate in the pro bono program.

    The course schedule is flexible.  OSAD will release videos and supplemental materials once a week for five weeks.  Participants can review the weekly materials at their own convenience, and OSAD will hold "office hours" (via phone, email or Zoom) twice a week for participants to raise questions.  A detailed curriculum may be found here.

    To register, email probono@osad.state.il.us.  Registration closes tomorrow, September 18.

  • September 14, 2020 5:22 PM | Carson Griffis (Administrator)

    By:  Carson Griffis*

    In Heartland Bank & Trust v. Katz, 2020 IL App (1st) 182259, the Illinois Appellate Court reminded litigants that an order disposing of a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure, 735 ILCS 5/2-1401, must be appealed within 30 days.  In that case, the plaintiffs obtained a default judgment, and the defendants later filed section 2-1401 petitions to vacate that judgment.  The circuit court granted the petitions and the case proceeded to final judgment, after which the plaintiff attempted to appeal the grant of the section 2-1401 petitions.

    The appellate court held that it lacked jurisdiction to consider that appeal, however, because the plaintiff did not file a timely notice of appeal.  The court noted that, under Illinois Supreme Court Rule 304(b)(3), a judgment or order granting or denying a section 2-1401 petition may be immediately appealed by filing a notice of appeal within 30 days, and the failure to do so deprives the appellate court of jurisdiction over such an order.  The appellate court emphasized that this conclusion was consistent with the nature of a section 2-1401 petition, which initiates new and separate proceedings attacking a final judgment rather continuing the same case.  Because an order disposing of such a petition ends those new proceedings entirely, it follows that such an order is final and appealable.

    *Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

  • September 10, 2020 5:33 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court's September Term begins Monday, September 14, 2020.  Oral arguments are scheduled for September 15, 16, 17, 22 and 23, 2020.  A total of 17 cases will be heard -- 12 civil and 5 criminal.  The following criminal cases are scheduled for argument this Term:

    September 25, 2020

    People v. Alejandro Reveles-Cordova, No. 124797 

    People v. Demario Reed, No. 124940

    People v. Justin Knapp, No. 124922

    People v. Shawn Marlon Brown, No. 125203

    September 23, 2020

    In re J.M.A., No. 125680

    Below is a summary for one of those cases, People v. Alejandro Reveles-Cordova.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website

    People v. Alejandro Reveles-Cordova, No. 124797

    The one-act, one-crime rule provides that a defendant cannot have multiple convictions stemming from a single act and that a defendant cannot be convicted of a greater offense and a lesser-included offense when there are multiple acts.  The abstract elements test is used to determine whether a charged offense is a lesser-included offense of another charged offense.  Here, the Court is asked to determine how the abstract elements test should apply: should the Court analyze only the elements of the offense for which the defendant is charged and convicted, or should the court analyze all ways in which the offense can possibly be committed to determine if it is theoretically possible to commit the second offense without committing the first.  Here, defendant was convicted of criminal sexual assault and home invasion predicated on criminal sexual assault.  The Court must decide whether, under the facts here, the criminal sexual assault is a lesser included offense of the home invasion.

    According to defendant, a split in appellate court authority has developed, reflecting the two approaches to applying the abstract elements test described above.  Defendant asserts that the Court should endorse comparison of the offenses only as charged.  Defendant claims this interpretation is more in line with how the Court has "historically" applied the abstract elements test and the one-act, one-crime rule, with apparent legislative acquiescence to case law holding that there can be no conviction for a greater offense and its predicate without expressed intent to do so, and with the goal underlying he one-act, one-crime rule: to prohibit multiple punishments for a single act.

    The State argues in support of the other interpretation, that the abstract elements test should examine all ways that an offense can be committed to determine whether it is theoretically possible to commit the second offense without committing the first.  The State disputes defendant's characterization of the Court's relevant precedent, noting that a 2010 case, Miller, adopted use of the abstract elements approach for determining lesser-included offenses so that older precedent is less helpful.  The State emphasized that here there are indisputably multiple acts involved because home invasion involves (1) entering the victim's home, and (2) committing criminal sexual assault therein.  And when the one-act, one-crime doctrine applies, to multiple act cases, there can be multiple convictions, even given interrelated acts, so long as one offense is not a lesser-included offense.

    Appellate Court Decision:  2019 IL App (3d) 160418.  Schmidt, P.J., with Carter, J., and O'Brien, J., concurring

  • September 02, 2020 10:52 AM | Carson Griffis (Administrator)

    The Illinois Supreme Court's September Term begins Tuesday, September 15, 2020.  Oral arguments are scheduled for September 15, 16, 17, 22 and 23, 2020.  A total of 17 cases will be heard --12 civil and 5 criminal.  The following civil cases are scheduled for argument this Term:

    September 16, 2020

    People ex rel. Lisa Madigan v. Stateline Recycling, LLC, No. 124417 

    People ex rel. David P. Leibowitz v. Family Vision Care, LLC, No. 124754

    Tzakis v. Berger Excavating Contractors, Inc., No. 125017

    Steed v. Rezin Orthopedics and Sports Medicine, S.C., No. 125150

    September 17, 2020

    Dameron v. Mercy Hospital and Medical Center, No. 125219

    Gillespie v. East Manufacturing Corp., No. 125262

    State Farm Mutual Automobile Insurance Co. v. Elmore, No. 125441

    September 22, 2020

    Tirio v. Dalto, No. 125442

    Barrall v. The Board of Trustees of John A. Logan Community College, No. 125535

    Rehfield v. Diocese of Joliet, No. 125656

    Zander v. Carlson, No. 125691

    September 23, 2020

    Policemen’s Benevolent Labor Committee v. The City of Sparta, No. 125508

    Below is a summary for one of those cases, Dameron v. Mercy Hospital and Medical Center.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

    Dameron v. Mercy Hospital and Medical Center, No. 125219

    The issue in this case is whether a party who has disclosed a witness as a testifying expert may thereafter redesignate that witness as a nontestifying consultant whose opinions and work product are privileged and protected from discovery unless there is a showing of exceptional circumstances by the opposing party.

    Plaintiff Alexis Dameron filed a medical malpractice action against the defendants, Mercy Hospital and Medical Center, Cordia Clark-White, M.D., Alfreda Hampton, M.D., Natasha Harvey, M.D. and Patricia Courtney (collectively, “Defendants”).  On May 30, 2017, in her answers to written discovery, Plaintiff disclosed Dr. David Preston as an expert witness. She also disclosed that Dr. Preston would testify as to the results of an EMG test he would perform on Plaintiff on June 1, 2017. On that date, Dr. Preston examined Plaintiff and conducted the test.  He also prepared a report in which he discussed his findings and opinions. Two months later, Plaintiff filed a motion to designate Dr. Preston as a nontestifying expert consultant pursuant to Supreme Court Rule 201(b)(3), claiming that the disclosure of Dr. Preston as a testifying expert witness was “inadvertent.” The trial court denied Plaintiff’s motion and ordered Plaintiff to produce Dr. Preston’s records and report regarding the EMG test. Plaintiff refused and the court found her in contempt and imposed a $100 fine, which was later reduced to $1.  Plaintiff appealed the interlocutory friendly contempt order pursuant to Supreme Court Rule 304(b)(5). 

    The appellate court reversed, explaining that, under Illinois law, a party may withdraw an expert witness as long as the opposing party is given clear and sufficient notice allowing it to take the necessary action in light of the abandonment of the witness. However, in this case, the court noted, Plaintiff did not merely seek to withdraw Dr. Preston as a testifying expert witness, but sought to redesignate him as a nontestifying consultant whose reports and opinions are protected from discovery pursuant to the privilege set forth in Rule 201(b)(3).  The court noted that this was an issue of first impression in Illinois and looked to federal cases for guidance.  Following Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 2159476 (S.D. Ind. May 17, 2013), the appellate court held that “where a previously disclosed testifying expert witness has been timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated a Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.” Because Plaintiff had not disclosed Dr. Preston’s report to Defendants prior to her motion to redesignate him as a consultant, the appellate court held that the trial court erred in denying Plaintiff’s motion.  Accordingly, the appellate court reversed the trial court’s order, vacated the contempt finding and remanded the case for further proceedings.

    Appellate Court Decision:  2019 IL App (1st) 172338.  Hall, J., with Rochford, J., and Hoffman, J., concurring

  • August 22, 2020 9:48 AM | Carson Griffis (Administrator)

    Chief Justice Anne M. Burke of the Illinois Supreme Court has invited the ALA's members to attend a memorial service in honor of the late Justice Charles E. Freeman at 2 p.m. on Wednesday, September 16, 2020. 

    In light of COVID-19, guests will not gather in the Supreme Court Building, but the service will be streamed at:  https://livestream.com/blueroomstream/events/9226889.  A video recording of the service will be available on the Court's website for those who cannot watch live, and a program for the service may be downloaded from the Court's website (http://www.illinoiscourts.gov/Media/Video/Events/default.asp) a few days prior to the service.

    Justice Freeman was elected as the first African-American member of the Illinois Supreme Court in 1990, and also served on the Illinois Appellate Court from 1986 to 1990 and the Cook County Circuit Court from 1976 to 1986.  Before serving on the bench, Justice Freeman worked in private practice and various public service roles, including as an Assistant Attorney General, Cook County Assistant State's Attorney, Assistant Attorney for the Cook County Board of Election Commissioners, and arbitrator with the Illinois Industrial Commission.  During his 28 years as a justice of the Illinois Supreme Court, he was praised for drafting opinions upholding criminal defendants' rights, improving efficiency in the Family Violence Prevention program, and improving the Court's operations, including establishing its web page.  Justice Freeman received numerous awards throughout his distinguished career, including the Freedom Award from The John Marshall Law School, the Seymour Simon Justice Award from the Jewish Judges Association, the Earl Burrus Dickerson Award from the Chicago Bar Association, and the Ira B. Platt Award and Presidential Award from the Cook County Bar Association.

  • August 05, 2020 9:19 PM | Carson Griffis (Administrator)

    The ALA is hosting a CLE Lecture featuring Professor Marcia Chatelain. Professor Chatelain, Provost’s Distinguished Associate Professor of history and African American Studies at Georgetown University, is a frequent public speaker, media commentator, and consultant to educational institutions, delivering lectures and workshops on inclusive teaching, social movements, and food justice. Her lecture will explore a variety of cases in U.S. Supreme Court Justice Thurgood Marshall’s career leading up to the landmark decision in Brown v. Board of Education of Topeka, Kansas.

    Date:  Thursday, August 20, 2020

    Time:  12:00 to 1:00 p.m.

    Location:  Online.  Attendees will receive a Zoom link after registering for the event.  (NOTE:  Only speakers will be visible, so participants need not dress formally.)

    Cost:  Free for ALA members; $25 for non-members

    CLE Credit:  1.0 hour, Diversity & Inclusion Credit

    Questions?  Call (630) 416-1166, ext. 303

    Register:  Use our online registration system here, or visit www.applawyers.orgPlease note that you will receive a Zoom link in your confirmation e-mail.

  • July 12, 2020 8:56 AM | Carson Griffis (Administrator)

    The ALA is excited to announce a new pro bono opportunity for appellate lawyers that is launching this fall: Illinois Free Legal Answers for Civil Appeals. This American Bar Association project is sponsored by the Administrative Office of the Illinois Courts, the Illinois Supreme Court Commission on Access to Justice, and the Public Interest Law Initiative (PILI). It operates as a virtual legal advice clinic for civil legal issues where low-income Illinoisans can submit a question about their civil appeal. It is a limited scope opportunity, and volunteer attorneys who provide brief advice and counsel through the website will be covered by professional liability insurance maintained by the ABA. Volunteer lawyers log on to the site at their convenience and answer questions waiting in the queue.

    The program is currently seeking volunteers who have experience in appellate practice. You can visit https://www.pili.org/appellate for more information and to sign up for updates.
  • June 30, 2020 7:34 AM | Carson Griffis (Administrator)

    In Davis v. Village of Maywood, 2020 IL App (1st) 191011, the First District of the Illinois Appellate Court held that a party demonstrated good cause to justify a late filing based on his attorney's "minor, understandable" e-filing error. 

    Plaintiff's counsel attempted to e-file a complaint on the morning of the day the statute of limitations was set to expire.  When submitting the complaint, he entered his Cook County Attorney Code in the "Lead Attorney" field but did not reenter it in the field labeled "Case Cross Reference Number."  Four days later, the circuit court clerk reviewed the submission and rejected it because counsel did not reenter his Cook County Attorney Code.  Counsel resubmitted the same complaint with the Code later that day, and it was accepted.  The circuit court later dismissed the complaint as untimely.

    The First District reversed, holding that plaintiff established good cause for the late filing under Illinois Supreme Court Rule 9(d)(2), which states that a party may "seek appropriate relief from the court, upon good cause shown" if an e-filed document "is rejected by the clerk and is therefore untimely."  The court emphasized that the complaint itself was substantively correct, that the e-filing submission contained all of the other necessary information, and that it was "neither . . . obvious nor intuitive" that counsel should have reentered his Attorney Code in the "Case Cross Reference Number" field.  The court also noted that the e-filing platform and Cook County circuit court clerk subsequently warned users about this very problem, showing that the field's label was unclear.  Because the name of that field was "confusing at best and misleading at worst," it contributed to counsel's error and constituted good cause. 

    The First District's opinion may be found here.

  • June 24, 2020 4:05 PM | Carson Griffis (Administrator)

    In February, the Illinois Supreme Court created the Volunteer Pro Bono Criminal Appeals Program to assist the Office of the State Appellate Defender with a backlog of appeals that has accumulated over many years due to underfunding. This is an important initiative for the Court, and furthers the Court’s commitment to improving access to justice.

    The Program provides a unique opportunity for appellate lawyers to get involved in pro bono service. There are a number of ways to participate:

    1.  Volunteer to handle a direct criminal appeal. The Illinois Supreme Court recently issued amended eligibility criteria for serving as a volunteer pro bono attorney. Appointed attorneys must only have participated in two prior appeals, or have served in various government agencies or judicial clerkships. Oral argument will be strongly considered in these appeals.

    2. Supervise an attorney who does not meet the eligibility criteria. Newly licensed attorneys and friends and colleagues who do not otherwise meet the eligibility criteria may handle these appeals under the supervision of a qualified appointed attorney. This is an excellent opportunity to help others get appellate experience.

    3. Mentor a law student looking for legal experience. Law students may not be of record to handle these appeals. However, a qualified appointed attorney may informally mentor a law student by having them work on limited aspects of the appeal (e.g., conducting research, assisting in writing the appellant’s brief, etc.), while the attorney makes all appearances before the court. If you are interested in mentorship, please contact Gretchen Sperry at gsperry@hinshawlaw.com.

    OSAD is also offering a free, CLE-eligible online training program to assist pro bono attorneys with substantive and procedural criminal law and to offer guidance on issue spotting. OSAD is also making some of their internal training materials available for review. Registration closes July 2nd. Please contact Laura Weiler at laura.weiler@osad.state.il.us for more information.

    The Illinois Supreme Court has long been a supporter of the ALA, and this is our opportunity as ALA members and supporters to give back. Please consider applying for this program.

  • June 24, 2020 3:47 PM | Carson Griffis (Administrator)

    Earlier today, Seth Horvath, co-chair of the ALA's Rules Committee, addressed three proposals to amend the Illinois Supreme Court rules at a public hearing of the Illinois Supreme Court's Rules Committee held via Zoom.  Video of Mr. Horvath's comments can be seen here, starting around the 1:36:00 mark.

    The ALA supported in part and opposed in part Proposal No. 19-05, which would make amendments to Illinois Supreme Court Rules 306, 315, 316, 318, 341, and 368.  The ALA also opposed Proposal No. 19-14, which would amend Rule 303(a)(2).  The specific reasons for the ALA's position on these proposals were outlined in a letter it submitted to the Illinois Supreme Court's Rules Committee on June 10, 2020, which can be found here.

    Finally, the ALA expressed its opinion on Proposal No. 19-11, regarding an amendment to Illinois Supreme Court Rule 23, by reiterating its position that parties should be able to cite unpublished orders under that rule as persuasive authority, but not as binding precedent.

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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