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.

Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit recently commented that replacing page limits with word limits in all Rules of Appellate Procedure was sensible. Nonetheless, the remaining question was what the limit should be. He recounts the process that led to the 14,000-word limit for principal briefs that currently exists. He further shares his opinion that a reduction of the word limit to 12,500 at the intermediate appellate level while, at the same time, the United States Supreme Court replaced the 50-page brief limit with a 15,000-word limit "would create an unjustified difference."

You can read his comments by clicking here. Via How Appealing.

Professor Geoffrey Stone of the University of Chicago Law School was the feature speaker at our September 22 meeting. He provided us with a fascinating look at his work as a member of a five-member Review Group appointed by President Obamato advise him on the activities of the National Security Agency. Professor Stone is the former Dean of the University of Chicago Law School, a former provost of the entire University, and the Edward H. Levi Distinguished Service Professor of Law.

Among other matters examined by the Review Group was the controversial surveillance program of the NSA authorized by section 215 of the Patriot Act of 2001. Under this program, the NSA on a daily basis collects metadata -- consisting of phone numbers and connections but no identities of callers or conversations -- on millions of American's phone calls from telephone providers. Professor Stone explained that the NSA holds and processes the metadata on its own computers. When NSA analysts determine that a particular phone number is associated with terrorism, the agency "queries" the database to find out related phone numbers from the database.

In 2012, according to Professor Stone, the NSA queried the database for 288 different numbers. In 16 instances the suspect number was found to be in touch with another suspect number in the United States. Those 16 instances were turned over to the FBI for further investigation. In the seven years since the program was created, however, it has not provided any link that has proved critical in preventing a pending terrorist attack.

Despite the lack of measurable success to date, Professor Stone said that the Review Group was of the view that the program should continue. But at the same time it recognized the danger of government abuse. Ultimately, the Review Group recommended to the President that the metadata should be held, not by the government, but by private parties -- either the telephone providers or a newly created private entity charged with overseeing the database. In addition, the Review Group recommended that no one should be able to access the database without a court order.

Following the making of these recommendations, President Obama accepted them and directed that steps be taken to transition to the new model. Professor Stone, who is a card-carrying member of the ACLU, regarded this as a huge step forward.

The presentation provided a rare glimpse into some of the workings of the NSA. The ALA and those attending the presentation are very grateful to Professor Stone both for his service on the Review Committee and for taking time to share his experience with our group.

Recommended Citation: Don Sampen, Professor Geoffrey Stone Provides the Association With a Glimpse Into the NSA, The Brief, (October 7, 2014), http://applawyers-thebrief.blogspot.com/2014/10/professor-geoffrey-stone-provides.html.  

ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord. Also known as Lou Gehrig's disease, ALS is a crippling and fatal disease that quickly and systematically eliminates the body's ability to use its muscles. The disease has received worldwide attention in recent months with the ALS Ice Bucket Challenge.

Sadly, a member of the Illinois legal community has been inflicted with the disease. John Rooney, a longtime reporter for the Chicago Law Bulletin who has covered state and federal appeals, was diagnosed with ALS in March. A "Let's Roon ALS" fundraiser will be held on Sunday, October 19, 2014, in Merrionette Park, IL. The fundraiser will take place during a Chicago Bears game and, among other features, will include a buffet lunch, live entertainment, auction, and raffles. The proceeds will go towards John's medical costs, which given the nature of ALS, are likely to be high. 

For more information on the fundraiser and to purchase tickets, please click here.  

The Association will present the following seminars and luncheons during the month of October.

• October 8, 2014: Fourth District Appellate Seminar and Reception. 
• • Held at the University of Illinois College of Law in Champaign, the event will feature a panel discussion by justices from the Third, Fourth, and Fifth districts of the Appellate Court; an ethics discussion featuring Association President Steve Pflaum and ARDC Litigation Chief Peter Rotskoff; and former Illinois Solicitor General and Association Vice President Michael Scodro discussing tips for presenting oral arguments. The seminar will also include a roundtable luncheon with the Appellate Court justices and an informal gathering following the event. The seminar will run from 10:30 a.m. until 4:15 p.m. and offer 3.5 MCLE hours, including 1 hour of ethics. 

• October 29, 2014: Third Annual SIU/ALA Seminar. Writing Tips and Professionalism for the Appellate Practitioner.
• • Held at the Southern Illinois University School of Law in Carbondale, the event will feature justices from the Illinois Supreme Court and Illinois Appellate Court, Fifth District; Professor Cheryl L. Anderson of SIU School of Law presenting “Zombie Nouns and Other Impediments to Persuasive Written Advocacy”; and Association President Steve Pflaum presenting “Professional Responsibility for Appellate Lawyers.” The event starts at 1 p.m. and ends at 4:20 p.m., and will offer 3 MCLE hours.

• October 30, 2014: First District Luncheon Learn from the Press: Honing Writing Skills Under Pressure.
• • Pat Milhizer, the editor and a former reporter for the Chicago Daily Law Bulletin, and Teddy Greenstein, a longtime sports columnist for the Chicago Tribune, will offer the view from a different writing perspective. They will discuss how journalists gather relevant facts, think of a plan of attack, and then generate a concise discussion with a point, all the time under critical review by editors and a vocal public. The luncheon will be at the Union League Club in Chicago from 12 p.m. until 1:45 p.m. and offer 1 MCLE hour. 

For more information on these events and to register, click here.