In a patent infringement lawsuit, prior to trial on the merits, the federal district court typically conducts a hearing in which the court examines evidence concerning the meaning of the patent’s claims. The court then issues a claim construction opinion that provides the context for trial of the infringement claims.

In BRK Brands, Inc. v. Nest Labs, Inc., No. 13 C 7900, 2014 WL 2854493 (N.D. Ill. June 24, 2014), Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, sitting as a district court judge, issued a claim construction opinion that undermined the basis for much or all of the plaintiffs’ patent infringement claims. Rather than continue to litigate in the district court, the parties entered into a stipulation for the entry of judgment against the plaintiffs. Pursuant to the stipulation, the parties then requested the court to enter judgment, which the plaintiffs intended to appeal to the Federal Circuit.

Posner observed that, unless his claim construction ruling was reversed, the infringement claims were doomed, and that the plaintiffs did not want to spend money continuing to litigate in the district court. He further noted the high rate of reversal of claim construction rulings by the Federal Circuit, and the fact that the Federal Circuit entertained appeals from cases in this procedural posture.

He expressed concern, however, that no basis existed for appealing from a stipulated judgment of non-infringement under the federal civil rules. He referred to such an appeal as a “back-door method of interlocutory appeal.” By contrast, said Posner, a federal criminal rule, Rule 11(a)(2), allows a criminal defendant to enter a conditional plea of guilty, while reserving the right to have an appellate court review an adverse pretrial determination, and then withdraw the guilty plea if successful. No such procedure for appealing a “death knell” interlocutory order applied on the civil side. Allowing the appeal, moreover, could leave the final judgment rule provided in 28 U.S.C. § 1291 “in tatters.”

Here, the parties agreed that the stipulated judgment was equivalent to the grant of summary judgment in favor of the defendant. Posner took that concept a step further and cited authority for the proposition that a court can grant summary judgment even though neither party has moved for it, so long as the party against whom judgment is entered has had an opportunity to be heard.

Ultimately, Posner said that he preferred the summary judgment approach over a stipulated judgment. Since the plaintiffs conceded that they had no basis for opposing summary judgment, he therefore denied the motion for a stipulated judgment and granted summary judgment in favor of the defendants.

Recommended Citation: Don R. Sampen, As a Means to Appeal, District Court Grants Summary Judgment Over Stipulated Judgment,The Brief, (Nov. 13, 2014), http://applawyers-thebrief.blogspot.com/2014/11/as-means-to-appeal-district-court.html#more.

Pat Milhizer is the editor of the Chicago Daily Law Bulletin and Chicago Lawyer magazine. Before becoming editor, his beat was the Daley Center, where he covered the Cook County Circuit Court and Illinois Appellate Court. Teddy Greenstein is a sportswriter for the Chicago Tribune, and his beat covers Chicago sports and Northwestern-Big Ten football and basketball. On October 30 at the Union League Club in Chicago, they discussed a common concern with all of us: writing under pressure. 

Pat Milhizer described deadline pressure at its height--when Rahm Emanuel was thrown off the ballot for mayor. His article's first sentence read that the race for mayor had just gotten more interesting. He thought about his readers: lawyers, including those interested in municipal law. He thought not only about the key facts but also what the appellate court had decided. This was important because it was a 2-1 decision. He wanted to get the important content "high up," present the impact of the court's decision, and then transition to the rest of the article.

Teddy Greenstein similarly explained that our job is to make people wantto read what we write. He encouraged the audience to "go the extra mile" and do something different. He provided an example of an enterprise story in which he followed baseball's Frank Thomas to Las Vegas and turned it into a story. One of the best lessons he has learned is to "show, don't tell," that is, don't tell your reader that a person is generous, explain the conduct of the person so the reader will understand the person's generosity.

Past ALA president Mike Rathsack moderated the discussion and next asked them about overcoming the pressure of writing under time constraints. Pat Milhizer discussed some of the things we can do to put ourselves in a position to succeed, such as limiting distractions, clearing our mind, and prewriting arguments or issues. Next, he talked about "barstooling"--sitting down and telling the story as if we were in a bar talking to someone. Teddy Greenstein told the audience, with respect to word count, to write 1,000 words and revise that to a great 500 words. Keep revising; avoid adjectives, be concise, and use the most important facts. When you're finished writing, edit the work product by checking facts and trimming the unnecessary portions of quotations. Pat cautioned though, to ask for help when writing about unfamiliar topics or issues.

Mike Rathsack asked how to handle the one thing we all encounter: criticism. Pat Milhizer responded that he treats all criticism seriously. If there is an error, then it must be corrected. But when there is a misunderstanding or someone misreads the content, then 

there is not much he can do other than to focus on the reality of the facts. Rather than being defensive, Teddy Greenstein offers an apology and says that he will try harder the following week. But both agree it was necessary to let the person have his or her say. Mike also asked how they dealt with difficult people, and Teddy encouraged the audience to do the research before talking to the personalities; show that you put in the work to learn about them or the issues. In working with lawyers who do not wish to discuss a particular ruling, Pat stressed the need for accuracy in reporting, so his goal is to better understand what the ruling means.

Discussing the division of labor between writing and editing, Pat explained that the Law Bulletin was based on a time schedule. He suggested staggering the deadlines to decrease the pressure. Teddy discussed the various formats, such as his blog, in which he can post something quick but then add more later, such as a video clip.

The Association thanks Pat Milhizer and Teddy Greenstein for sharing their experiences and providing a refreshing viewpoint of writing under various constraints. The Association also thanks Mike Rathsack and Karen DeGrand for their service in organizing the program.

The Association continued its tradition of sponsoring an Appellate Practice Seminar at the Southern Illinois University School of Law in Carbondale. As in years’ past, the October 29, 2014, event coincided with the Illinois Appellate Court, Fifth District, sitting for oral argument at the law school. The seminar featured presentations from experienced appellate practitioners and law professors dealing with writing style and ethics, followed by a judicial panel discussion.

Illinois Supreme Court Justice Lloyd Karmeier, together with Justices Bruce Stewart and S. Gene Schwarm of the Illinois Appellate Court, Fifth District and Fifth District Appellate Court Clerk John Flood participated in a panel discussion moderated by past ALA president Bill Hardy. The panel covered a wide range of topics germane to appellate practice and procedure, and also entertained questions from attendees. 

ALA President Steve Pflaum presented a discussion on ethics. The topics covered included the rules applicable to attorney communications concerning members of the judiciary, responsibility of candor to the tribunal, and duty regarding ethical practice of fellow lawyers. Consistent with the seminar taking place in a law school setting, President Pflaum ’s presentation included challenging hypotheticals that sparked audience participation. 

Professor Cheryl L. Anderson, of the SIU School of Law, presented a writing instruction lecture that encouraged attention to active voice and avoidance of noun nominalization. Titled “Zombie Nouns and Other Impediments to Persuasive Written Advocacy,” Professor Anderson used references and clip art that hinted at a Halloween theme, which added fresh humor to her interactive discussion. 

The Association thanks the SIU School of Law for graciously hosting the seminar and all participants for an instructive and engaging program. 

The Association’s November luncheon will feature Judge John Daniel Tinder of the United States Court of Appeals for the Seventh Circuit. Judge Tinder will present “The Language of Judges,” which will focus on understanding comments from the bench that might help to guide litigation strategy. Judge Tinder will also entertain questions from the audience.

The luncheon will be held on Wednesday, November 19, 2014, at the Union League Club in Chicago. For more information and to register, please click here.

Seasoned appellate practitioners know that an issue needs to be properly preserved in the trial court if a reviewing court is to address it. The basics are simple. Litigants usually cannot raise an issue for the first time on appeal or appeal from the admission of evidence not properly objected to at trial. Most know that a party must also obtain a ruling on the objection.

But sometimes attorneys need to know more than the basics.

To preserve an issue that arises in a jury trial, a timely and proper posttrial motion is mandatory. The precise content of the motion is specified by law. The requirements for that content are enforced strictly. Errors and omissions in posttrial motions after a jury trial can derail the strongest appeals–even appeals that would have been successful absent such an error or omission in the posttrial motion.


Section 12-1202(b) of the Code of Civil Procedure provides:

“Relief desired after trial in jury cases *** must be sought in a single posttrial motion. *** The posttrial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief.” (Emphasis added.) 735 ILCS 5/12-1202(b) (West 2012).

Illinois Supreme Court Rule 366(b)(2)(iii) further provides:

“A party may not urge as error on review of the ruling on the party's post-trial motion any point, ground, or relief not specified in the motion.”  (Emphasis added.)  Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994).

“[A]ny point, ground, or relief.” Each of those words is loaded with meaning. Most importantly, the use of the word “or” expands the requirements. All points, grounds, and forms of relief must be specified. Just specifying the points and grounds is not enough.

Hamilton v. Hastings, 2014 IL App (4th) 131021, involved a negligence action and is a recent example of the stringent requirements regarding posttrial motions. At the close of the evidence in a jury trial, the plaintiff unsuccessfully moved for a directed verdict on the issue of liability. The jury then rendered a verdict for the defendant.

The plaintiff’s posttrial motion raised seven points, but asked for only one form of relief – a new trial. One of the seven points was that “the [c]ourt erred in failing to direct a verdict for the [p]laintiff at the close of evidence.” The trial court denied the motion, noting “the verdict may have been different than I personally would have entered if I was the finder of fact ***.” 

The plaintiff appealed only “from the trial court’s denial of his posttrial motion.” The plaintiff sought “judgment of liability against the defendant *** and a remand for trial on damages only” on appeal. Consistent with the plaintiff appealing from the denial of his posttrial motion, the plaintiff’s brief argued only for a new trial. Apparently, the plaintiff’s brief on appeal did not expressly seek judgment in his favor on the issue of liability. Nonetheless, the reviewing court noted, the plaintiff was “essentially asking this court to enter a judgment” in his favor on the issue of liability, calling it “a judgment n.o.v.”

The reviewing court explained that the plaintiff's failure to request a judgment n.o.v. was not a mere technical failure because the “supreme court has carefully preserved the distinction in the evidentiary standard courts apply to each.” Specifically, on the one hand, a directed verdict (or judgment n.o.v.) is proper when all of the evidence, viewed in the aspect most favorable to the opponent, so overwhelming favors the movant that no contrary verdict based on the evidence could stand. On the other hand, a motion for a new trial is proper when the trial court, after weighing the evidence, concludes that the verdict is contrary to the manifest weight of the evidence. A motion for a new trial, the reviewing court noted, would not implicate the same evidentiary standard for a judgment n.o.v., and therefore, the trial court did not have the opportunity to reconsider its decision to deny the plaintiff's request for a directed verdict. The reviewing court concluded that, because the plaintiff did not request a judgment n.o.v. in his posttrial motion, the plaintiff was “precluded from asking this court to enter judgment on liability.”

Important for both trial and appellate practitioners alike, the reviewing court conceded that the plaintiff wrote in his posttrial motion that the trial court erred in denying his motion for a directed verdict on the issue of liability. But that was not enough; it was a “mere allegation.” The reviewing court concluded that the plaintiff also had to specifically ask for that directed verdict in his posttrial motion.

The plaintiff raised the issue of the judgment he sought in his posttrial motion as a “point” and probably a “ground,” but fatally omitted to specifically request that judgment n.o.v. – the form of the “relief” he sought during the trial when he moved for a directed verdict. Two out of three may not be that bad in love songs, but it will not preserve an issue for appeal in a posttrial motion. See Meat Loaf, “Two Out of Three Ain’t Bad,” Bat Out of Hell (1977).

The reviewing court, however, did consider the plaintiff's appeal as framed by the notice of appeal, that is, the trial court's denial of his posttrial motion for a new trial. The court noted that, because the plaintiff did not sufficiently develop his argument regarding the trial court’s denial of his posttrial motion in his brief, it would have been justified in declining to address that issue pursuant to Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). Nonetheless, because the defendant decided to brief the issue as framed by the notice of appeal, he would not be prejudiced if the reviewing court decided that issue. The reviewing court concluded that the trial court did not abuse its discretion in denying the plaintiff's posttrial motion for a new trial. 

Posttrial motions require careful attention. Including the points and grounds is the easy part. Specifically asking for all the particular forms of relief requested–by name–requires more thought. And is required.

Recommended Citation: Lawrence A. Stein, "Any Point, Ground, or Relief" - Posttrial Motions Require Careful Attention, The Brief, (November 2, 2014), http://applawyers-thebrief.blogspot.com/2014/11/any-point-ground-or-relief-posttrial.html#more.

The Seventh Circuit had the opportunity to consider the contours of pendent appellate jurisdiction in Allman v. Smith, 764 F. 3d 682 (7th Cir. 2014). The matter involved a ruling from a motions panel reviewing the district court’s denial of a motion to stay proceedings pending an interlocutory appeal. The case is important for appellate practitioners because it highlights that, although pendent appellate jurisdiction is “an embattled doctrine,” it will be invoked when compelling reasons exist.

In Allman, the plaintiffs, former employees of a city in Indiana, sued both the mayor and the city claiming that they were fired because of their political affiliations. The mayor argued that he violated no constitutional rights; and alternatively, even if the firings violated the employees’ constitutional rights, the doctrine of qualified immunity applied and absolved him from liability. The city, whose liability was derivative, claimed that the mayor’s actions did not constitute a constitutional violation and also moved for summary judgment. The district court granted the mayor’s motion for summary judgment based on qualified immunity as to some plaintiffs, but denied the mayor’s motion for summary judgment as to two of the plaintiffs after finding that an issue of fact existed. The district court further denied the mayor’s motion that the proceedings be stayed pending appeal. The district court denied the city’s summary judgment motion as well as the city’s motion to stay further proceedings against it.



The Seventh Circuit first noted that there was no question that the mayor was entitled to a stay because of the qualified immunity claim. However, the more interesting question for the court was whether the city, who could not rely on qualified immunity, was entitled to a stay under pendent appellate jurisdiction.

The reviewing court observed that pendent appellate jurisdiction is “an embattled doctrine” that is significantly narrow in scope. It requires a compelling practical reason to allow an appeal from a ruling where there is otherwise no independent jurisdictional basis. The court found that the posture of the city’s case represented a compelling practical reason to stay further proceedings relative to the city pending resolution of the mayor’s appeal. The court noted that claims against the city depended on the outcome of the mayor’s appeal—if the merits panel agreed with the mayor’s principle argument that there was no constitutional violation, then the city would also be relieved of liability. Absent a stay, any proceedings against the city would have been for naught. The court also commented that the plaintiffs’ desire to proceed against the city pending the mayor’s appeal could result in two trials involving the same facts and witnesses—an outcome that the court deemed unattractive. Also unattractive was the possibility that there would be conflicting findings on the nature of the mayor’s conduct if the case against the city was to be tried while the mayor’s appeal remained pending. The court then concluded that a stay of proceedings as to the city was warranted due to the city’s claimed status as party “ ‘pendent’ because of its interdependence with the mayor’s appeal.” But the court cautioned that the pendent jurisdiction of the city’s claim was limited to asking for review of the denial of its motion to stay. It emphasized that it lacked jurisdiction over of the city’s appeal from any district court rulings other than the district court’s denial of the city’s motion to stay.

The net result was that the proceedings against both the mayor and the city were stayed pending the mayor’s appeal. The outcome of the mayor’s appeal will then determine whether a trial against the city will be necessary, and if so, the scope of issues to be tried.

Recommended Citation: Rosa M. Tumialán, Seventh Circuit Invokes Pendent Appellate Jurisdiction, the “Embattled Doctrine”, The Brief, (October 29, 2014), http://applawyers-thebrief.blogspot.com/2014/10/seventh-circuit-invokes-pendent.html#more.

The ALA is committed to fostering and encouraging the highest professional and ethical standards within the appellate bar. Pursuant to that commitment, the Association sponsored an Appellate Practice Seminar at the University of Illinois College of Law in Champaign. Held on October 8, 2014, the event featured an interactive panel discussion, presentations by seasoned appellate attorneys, a luncheon, and an informal social gathering attended by ALA members, University of Illinois law school faculty, and law students.

Appellate Court Justice Robert Steigmann of the Fourth District, moderated the panel discussion. The panel also included Justices Mary K. O'Brien and Daniel Schmidt of the Third District Appellate Court; Justices Lisa Holder White and Thomas Harris of the Fourth District Appellate Court; and Justice S. Gene Schwarm of the Fifth District Appellate Court. The panel covered a wide range of topics germane to appellate practice and procedure, and answered questions from attendees.

The seminar also featured ALA President Steve Pflaum and ARDC Ethics Director Peter Rotskoff present a discussion on ethics. ALA Vice President Michael Scodro, drawing on his experience as the former Illinois Solicitor General, offered a discussion focusing on tips for presenting oral arguments. Seminar participants were also invited to join the College of Law for their annual luncheon, which followed the Fourth District Oral Argument also held at the law school that morning.

The ALA thanks the Appellate Court Justices and the other speakers for their participation, and also thanks the University of Illinois College of Law.

ALA President Steven F. Pflaum was recently named Lawyer of the Month by Attorney At Law Magazine, which highlights his career accomplishments and contributions to the legal profession. In addition to representing clients like municipalities, media entities, and hospitals at trial and on appeal, President Pflaum has dedicated his career to "raising the bar" for both practitioners and the bench. He "devotes a substantial amount of time to activities intended to improve the administration of justice and the regulation of the legal profession." Toward that end, President Pflaum has held various positions related to both judicial and legal ethics, including serving as the current chair of the Illinois Judicial Ethics Committee. 

The article also shares insight into President Pflaum's activities outside of the law. An avid cyclist and tennis player, President Pflaum lives by the motto "Work hard, play hard, hardly sleep." Between zealously representing clients, giving back to the legal community, cycling, playing tennis, and spending time with his wife Karen and their family, including six children, President Pflaum's only complaint is that "there are rarely enough hours in the day.”

President Pflaum's many friends at the Association congratulate him on this well-deserved accomplishment. To read the full article, please click here. 

Effective September 19, 2014, the Supreme Court has amended Rules 12 and 373. Rule 12 governs proof of service in the trial court and reviewing courts. The amendment pertains to subsection (4), which now provides that "in the case of service by mail by a pro se petitioner from a correctional institution," proof of service may be established by an affidavit or "by certification as provided in section 1-109 of the Code of Civil Procedure" of the person who deposited the document in the institutional mail. The certification should state the time and place of deposit, as well as the complete address to where the document was delivered. 

Rule 373 governs filing papers in reviewing courts. The Rule specifies that proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). The amendment added language providing that the rule applies to "a motion directed against the judgment" as well as to the notice of appeal filed in the trial court. 

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules 12 and 373, (October 16, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/10/supreme-court-amends-rules-12-and-373.html.

The Appellate Lawyers Association is pleased to support The Chicago Bar Association and The Chicago Bar Foundation's 10th Anniversary Celebration: 2014 Pro Bono Week "Lifting Lives, Strengthening Access," which will take place during the week of October 20, 2014 through October 24, 2014. For more information, please visit The Chicago Bar Association by clicking here.