"The Brief" - The ALA Blog

  • March 18, 2020 10:38 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court and Illinois Appellate Courts remain open but have modified some procedures in light of the difficulties created by COVID-19. 

    The Illinois Supreme Court has allowed parties to submit paper copies of briefs and other documents in 14 days, rather than five days, through March 31, 2020.

    The First District of the Appellate Court has stated that it will allow a 30-day extension for any appellant or appellee briefs due on or before April 17, 2020, in all civil cases and criminal cases where the defendant is represented by private counsel or is self-represented. The First District also waived its requirement that parties provide six paper copies of filed briefs through April 17, 2020.

    The Second District has allowed parties 14 days, rather than five days, to submit paper copies of briefs filed through March 31, 2020.

    The Fourth District has temporarily postponed oral arguments. 

    The Fifth District also modified its March oral argument calendar and has suspended its requirement that parties submit paper copies of briefs until further order of the court.

    The Illinois Supreme Court and other Illinois courts will continue to post announcements on the Illinois courts' website, which may be found here.

  • March 16, 2020 4:52 PM | Carson Griffis (Administrator)

    Given the growing concerns around COVID-19 and in consideration of the health and safety of our members and guests, the Appellate Lawyers Association has decided to postpone the following events:

    1) The First District Roundtable Luncheon scheduled for Tuesday, March 24

    2) The Second District Roundtable Luncheon scheduled for Tuesday, April 7

    3) The Advanced Appellate Practice Seminar scheduled for Thursday, April 9

    Full refunds will be issued for those who already registered.  We intend to reschedule these events for another date and will share event details in the future.

  • March 16, 2020 8:34 AM | Carson Griffis (Administrator)

    Chief Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit announced that Christopher G. Conway has been selected to serve as Clerk of Court.  Mr. Conway will fill the vacancy created by the retirement of Gino J. Agnello.

    Christopher Conway joined the Clerk’s Office in 1991.  Throughout his 29 years in the Clerk's Office, he has served in its Case Processing Department, managed its Pro Se Department, managed the combined Court Services and Pro Se Departments, and performed crossover work as the Court’s Internal Control Evaluation Officer in the Financial Department.  Most recently, he served as the Court’s Attorney Advisor/Court Services Manager.  

    Christopher Conway earned his bachelor’s degree from Lewis University cum laude and his law degree from DePaul University College of Law.

  • March 05, 2020 7:06 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s  March Term begins Monday, March 9, 2020.  Oral arguments are scheduled for March 10, 11, 17 and 18, 2020. A total of 11 cases will be heard – 6 criminal and 5 civil. The following criminal cases are scheduled for argument this Term:

    March 10, 2020

    People v. Rickey Robinson, No.  123849 

    People v. William Coty, No. 123872

    People v. Miguel DeLeon, No. 124744

    People v. Patrick Legoo, No. 124965

    March 11, 2020

    People v. Donnell Green, No. 125005

    People v. Rasheed Casler, No. 125117

    Below is a summary for one of these cases, People v. Donnell Green. Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

    People v. Donnell Green, No. 125005

    This case presents the issue of whether trial counsel’s prior representation of the intended victim of a crime -- as opposed to the actual victim of the charged crime -- constitutes a per se conflict of interest. 

    Illinois law recognizes two types of conflicts of interest: per se and actual.  A per se conflict is one in which facts about counsel's status, in and of themselves, create a disabling conflict resulting in automatic reversal even absent a showing that the conflict influenced counsel's representation.  Currently, one way in which a per se conflict of interest is recognized is when counsel has a prior association with "the victim." 

    Defendant was found guilty of first degree murder after the prosecution argued for the application of two doctrines: transferred intent and accountability.   Under Illinois's murder statute, the requisite mens rea may be directed towards either the decedent or another person, a codification of the doctrine of transferred intent.  And a person is legally accountable for another person's when, before or during the offense's commission, and with the intent to facilitate its commission, a person aids the other in the planning or commission of the offense.  The prosecution is not required to include in the charging instrument its intent to rely on either doctrine, so long as the theories are supported by trial evidence.

    Here, defendant was a passenger in a car who said "I'll do it" but then handed the gun to another passenger who shot at the car of a rival gang, killing the passenger, Jimmy Lewis.  The prosecution theorized that the group targeted the driver, Danny "Keeko" Williams, or perhaps the actual victim Lewis or the rival gang more generally.

    Defendant filed a postconviction petition, alleging a per se conflict of interest because his defense counsel previously represented Keeko, the intended victim of the shooting.  The lower courts denied relief, concluding that an intended victim does not fall within the per se categories, and only the Supreme Court should expand the existing categories.

    In its briefing before the Illinois Supreme Court, defendant asserts that the intended victim in a transferred-intent situation should be included within the existing per se conflict category for prior representation of "the victim."  Alternatively, defendant argues that the Court should expand the per se conflict categories to include such a situation.  The rationale behind the per se conflict rule is that (1) when counsel has a professional association with a person or entity that might benefit from an unfavorable verdict against the defendant, it might subliminally affect counsel's performance in ways that are difficult to detect and demonstrate, and (2) the rule avoids an appearance of impropriety.  Defendant asserts that those considerations are also present in his intended victim situation.

    The State responds by noting that no (precedential) case has found that the established per se conflict category encompasses this intended victim situation and has instead been limited to actual victims of charged crimes.  And the State suggests that the Court should not expand the per se conflict rule in this manner.  For one thing, transferred intent need not be alleged in the charging instrument, and ultimately the identity of the intended victim need not ever be definitively resolved.  The present case is just such a case in that some evidence indicated that Keeko was the target while other evidence indicated that the group was targeting the rival gang more generally.  Finally, if an intended victim could be a group rather than a single individual besides the actual victim, the per se conflict category would have the potential of disqualifying a prohibitive number of defense attorneys, particularly in smaller counties.

  • March 02, 2020 7:08 PM | Carson Griffis (Administrator)

     Justice Charles E. Freeman,  who served on the Illinois  Supreme Court from 1990 to 2018, passed away March 2,  2020.  He was 86 years old.

     Justice Freeman was born in Richmond, Virginia, in  December 1933.  He earned his bachelor's degree from  Virginia Union University in 1954 and his Juris Doctor  from The John Marshall Law School in 1962.

    Along with pursuing private practice, Justice Freeman had a long career in public service.  He served as an assistant attorney general, Cook County assistant state's attorney, assistant attorney for the County Board of Election Commissioners, arbitrator for the Illinois Industrial Commission, and member of the Illinois Commerce Commission.

    Justice Freeman was elected to the Cook County Circuit Court in 1976 and served until 1986, when he was elected to the First District of the Appellate Court.  In 1990, Justice Freeman was elected to the Illinois Supreme Court. Justice Freeman was chosen as Chief Justice in 1997, becoming the first African American to lead a branch of government in Illinois.  Over the years, he authored many opinions having a profound impact on the development of Illinois law.

    The Appellate Lawyers Association expresses profound condolences to Justice Freeman's friends and family.  The Illinois Supreme Court's press release on Justice Freeman's passing may be found here

  • March 02, 2020 11:36 AM | Carson Griffis (Administrator)
    The Illinois Supreme Court’s  March Term begins Tuesday, March 10, 2020.  Oral arguments are scheduled for March 10, 11, 17 and 18, 2020. A total of 11 cases will be heard – 6 criminal and 5 civil. The following civil cases are scheduled for argument this Term:

    March 17, 2020

    Tabirta v. Cummings, No.  124798

    The City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, No. 124831

    Sharpe v. Westmoreland, No. 124863

    March 18, 2020

    Hamby v. Bayer Corp. and Rios v. Bayer Corp., Nos. 125020, 125021 (cons.)

    Williamson County Board of Commissioners v. Board of Trustees of the Illinois Municipal Retirement Fund, No. 125330

    Below is a summary for two of these cases, Hamby v. Bayer Corp. and Rios v. Bayer Corp.  Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

    Hamby v. Bayer Corp. and Rios v. Bayer Corp., Nos. 125020, 125021 (cons.)

    The issue in these consolidated cases is whether, under Bristol Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), courts should focus on the actions of the plaintiffs or the defendants’ connections to the forum state when determining whether to exercise specific jurisdiction over nonresident defendants.

    These class action claims were filed by plaintiffs, most of whom are nonresidents of Illinois, against Defendant Bayer Corporation (“Bayer”) for injuries caused by Essure, a permanent contraceptive device manufactured by Bayer. Bayer, relying on Bristol Myers Squibb, moved to dismiss the claims brought by the nonresident plaintiffs for lack of personal jurisdiction, arguing that Illinois lacked both general and specific jurisdiction over it because the plaintiffs were not citizens of Illinois and they did not undergo the Essure procedure in Illinois.  The circuit court denied Bayer’s motions to dismiss, finding that the nonresident plaintiffs’ claims “directly arose from or [were] related to” Bayer’s purposeful activities in Illinois and that it would not be unreasonable to require Bayer to litigate in Illinois.  Bayer appealed under Supreme Court Rule 306(a)(3).

    The Illinois Appellate Court, Fifth District, affirmed, holding that in order for a state court to exercise specific personal jurisdiction over an out-of-state defendant, the suit must arise out of, or relate to, defendant’s contact with the forum.  The court held that the proper focus was not on the actions of the plaintiffs, but on Bayer’s conduct that occurred in Illinois and whether the causes of action in the complaint arose from or were connected to its conduct in Illinois.  The appellate court held that Bayer purposefully availed itself of Illinois when it directly targeted and marketed in Illinois, conducted clinical trials in Illinois, contracted with Illinois physicians and facilities, and established a physician accreditation program in Illinois, notwithstanding whether the plaintiffs themselves were injured in Illinois, visited doctors in Illinois, or had the device implanted in Illinois. The court further held that the plaintiffs made a prima facie showing that exercising specific personal jurisdiction in this case is appropriate, Bayer failed to rebut that showing, and litigating in Illinois would not be unreasonable.

    In their petitions for leave to appeal, Bayer argues, in part, that the appellate court’s decision conflicts with Bristol-Myers Squibb, which held that a state court cannot exercise specific personal jurisdiction over the claims of an out-of-state plaintiff against an out-of-state defendant when “the conduct giving rise to the nonresidents’ claims occurred elsewhere.”

    Appellate Court Decision:  2019 IL App (5th) 180279-U; 2019 IL App (5th) 180278-U.  Welch, J., with Overstreet, P.J., and Moore, J., concurring.


  • February 12, 2020 12:06 PM | Carson Griffis (Administrator)

    By:  Carson Griffis*

    Chief Judge Wood recently issued an opinion reminding practitioners of their duty to submit complete and correct jurisdictional statements in their briefs, including identifying a magistrate judge's involvement in district court proceedings.  In two cases, Lowrey v. Tilden, No. 19-1365, and McCray v. Wilkie, No. 19-3145, magistrate judges had issued the final judgments from which the appeals had been taken.

    But Chief Judge Wood found that the parties' briefs lacked necessary information about the magistrate judges' involvement to satisfy Seventh Circuit Rule 28.  She noted that Circuit Rule 28 requires an appellant's brief to include information about the magistrate judge's involvement in its jurisdictional statement, including the date on which each party consented to the entry of final judgment by the magistrate judge.  And if an appellant's jurisdictional statement is not complete and correct, the appellee's brief must provide that information.  But the parties in the two appeals did not provide the dates on which each party consented to the magistrate judge entering final judgment, and in McCray, the parties neglected to mention that a magistrate judge had made the decision being appealed.  Chief Judge Wood stressed that this information was critically important to the Seventh Circuit because a magistrate judge has no authority to issue a final, appealable decision unless all parties consent.  

    Chief Judge Wood ordered the parties to submit amended jurisdictional statements and encouraged all attorneys practicing in the Seventh Circuit to consult the court's Practitioner's Handbook for Appeals (2019 ed.) for guidance on how to prepare complete and correct jurisdictional statements.  And she emphasized that the court expected all attorneys "to give close attention to all of the rules, including Circuit Rule 28."

    The Practitioner's Handbook for Appeals (2019 ed.) is available on the Seventh Circuit's website and can be found here.

    *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. 

  • February 10, 2020 11:55 AM | Carson Griffis (Administrator)

    Justice Robert R. Thomas has announced his retirement from the Illinois Supreme Court effective February 29, 2020.  Justice Michael J. Burke, currently a member of the Illinois Appellate Court, Second District, has been appointed to fill Justice Thomas's seat from March 1, 2020, through December 5, 2022.  DuPage County Circuit Judge Liam Brennan has been assigned to the Second District effective March 2, 2020, through December 5, 2022.

    Justice Thomas has served on the Illinois Supreme Court since November 2000 and served as Chief Justice from 2005 to 2008.  Before that, he served on the Second District of the Appellate Court and as a Circuit Judge of the 18th Judicial Circuit in DuPage County.  Justice Thomas was admitted to the Illinois Bar in 1981 and practiced in several firms before being elected to the bench in 1988.

    Justice Burke began his legal career in the DuPage County State's Attorney's Office in 1983 and became Chief of the Special Prosecutions Unit in 1991.  He became an associate judge in 1992 and was appointed to the circuit court in 2001.  The next year, he was elected to the circuit court, where he served until his assignment to the Appellate Court in July 2008.

    Judge Brennan currently serves as the Presiding Judge of the Felony Division of the DuPage County Circuit Court.  He became an Associate Judge in 2008 and a Circuit Judge in 2014.  Before serving on the bench, Judge Brennan worked in private practice and in the DuPage County State's Attorney's Office.

    The Illinois Supreme Court's announcement of Justice Thomas's retirement, Justice Burke's appointment, and Judge Brennan's appointment can be found here

    The Appellate Lawyers Association congratulates Justice Thomas on his retirement, Justice Burke on his appointment to the Illinois Supreme Court, and Judge Brennan on his appointment to the Illinois Appellate Court.

  • February 07, 2020 4:31 PM | Carson Griffis (Administrator)

    The Chicago Bar Association is hosting a candidate forum on Wednesday, Feb. 26, for the judicial candidates running for the Illinois Supreme Court.  The forum will be held from 3 p.m. to 5 p.m. at the James R. Thompson Center, 100 West Randolph Street, in the lower level Assembly Hall. 

    Illinois Supreme Court Justice P. Scott Neville, Jr.; Illinois Appellate Court Justices Cynthia Cobbs, Nathaniel Howse, Jr., Margaret Stanton McBride, and Jesse Reyes; and attorney Daniel Epstein are scheduled to participate in the forum, which will be moderated by Paul Lisnek, a WGN-TV Political Analyst and Anchor of WGN-TV’s Political Report.  The forum will also be livestreamed on CAN TV. 

    This event is complimentary.  RSVP and direct any questions to events@chicagobar.org

  • February 03, 2020 9:28 AM | Carson Griffis (Administrator)

    On March 3, 2020, the American Bar Association Commission on Women in the Profession and the Women’s Bar Association of Illinois are hosting a Summit on Advancing Women in the Law. The ALA is proud to co-sponsor this free event, where participants will learn what recent groundbreaking research has to say about why women lawyers stay in or leave the profession, and how they can attain access to success in their careers.  

    Registration is available here.

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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