The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

The Secret of a Solid Appeal
By Honorable Susan Fayette Hutchinson

Many practitioners subscribe to the theory that skilled, logical appellate advocacy wins appeals—oftentimes it does.

I will admit that I am quick to appreciate an advocate’s ability to craft an argument using plain, straightforward language and logic. However, I believe that the secret weapon in the appellate wars is the trial court record.

During my thirteen-year tenure as a trial court judge, I endeavored to make sure the record for which I would be deemed responsible was complete, clear, and preserved for appeal. Though I was in no position to request portions of the transcribed record be sent to the appellate court, I was able to exercise authority when bystander’s reports were submitted.

When asked to certify a bystander’s report, I never hesitated to take the time to review my trial and decision notes and make any necessary changes. Furthermore, I found that when I expressed my concern for the status of the record during the course of proceedings, the lawyers and/or litigants had a heightened awareness of their respective responsibilities for the completeness and accuracy of the record.

Finally, I believed that every decision I made as a trial court judge was perfectly sound in interpreting the appropriate law and applying it to the determinative facts. But appellate review occasionally dissuaded me from this belief. Reversals and remands were rarely welcomed events, but it became even more unpleasant when the appellate court order advised that I could have provided a better record about a ruling or preserve something for the record, and in doing so surmised that the outcome may have been different.

Notwithstanding that the trial court should always strive to make complete, concise, and timely rulings for the record, the ultimate control over the record belongs to each trial advocate. Trial preparation and trial strategy may win the battle at the trial court level. However, if you fail to make a complete record and preserve it for the appellate court, you might lose the war at the appellate level.

As a member of the Appellate Court, I begin with the trial court record and I end with the trial court record in proposing dispositions to my colleagues. While accessing the correct body of law, analyzing it, debating its finer points with my colleagues and clerks, and producing an order that constitutes a conclusion for the parties or precedent for future litigants are exhilarating, it is an exercise in futility if the Appellate Court lacks jurisdiction.

Therefore, I look first to the trial court record to assess jurisdiction to entertain the appeal. All courts have an affirmative obligation to determine whether they have jurisdiction over the matters before them. Zurich v. Baxter, 275 Ill. App. 3d 30, 38 (1995). An appeal must be dismissed if the reviewing court lacks jurisdiction. Anest v. Bailey, 265 Ill. App. 3d 58, 63 (1994). In my four years on this court, I have not found completeness of the trial court record to be a substantial problem in jurisdiction questions. Rather, on at least two occasions, timeliness of certain actions and the failure to preserve certain orders or rulings have caused interesting appellate arguments to be wasted for want of jurisdiction. In those cases, the trial court record held the answer.

After I review the trial court record to assess jurisdiction, I then look at the sufficiency of the record. In this arena, the most brilliant appellate argument may be cast aside if the trial court record is incomplete. Appellants have the burden to produce a record sufficient to support their claims of error, and any doubts arising from the incompleteness of the record will be resolved in favor of the trial court’s judgment. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984); Bachmann v. Kent, 293 Ill. App. 3d 1078, 1081 (1997). Appellees are also advised that compliance with the Supreme Court rules addressing the record on appeal is not the sole responsibility of appellants. Strategy is an important element of the practice of law, but it is not a good excuse when the Supreme Court rules allow for, and encourage, the supplementing of the record. See 134 Ill. 2d R. 329. Furthermore, I believe that it is the appellee’s responsibility to insure that all exhibits supporting its successful motion are included in the record. See Burgan v. City of St. Charles, No. 2—96—1113 (1997) (unpublished order under Supreme Court Rule 23) (Hutchinson, J., dissenting).

Next, the trial court record, when complete and clear, is crucial in determining whether an issue has been waived. One pretrial procedure and one trial procedure deserve special attention here. Motions in limine are most often used in jury trials, and if discovery is complete and the practitioner is prepared, these motions are brought prior to trial. A successful motion in limine is designed to bar the introduction of irrelevant, prejudicial, unreliable, and damaging testimony before a jury is exposed to such testimony. Rutledge v. St. Anne’s Hospital, 230 Ill. App. 3d 786, 792-93 (1992). The motion in limine should be in writing, and the trial court’s ruling should be set forth in a written order so that there can be no misunderstanding at trial or on appeal regarding the scope of the restriction that has been granted. Finally, if you are unsuccessful in convincing the trial court to enter an order granting your motion in limine, it is important that the issue be preserved by objecting to the subject testimony when it is presented at trial and by raising the motion in limine grounds anew in a timely posttrial motion. Cohan v. Garretson, 282 Ill. App. 3d 248, 256-60 (1996).

The other matter of trial procedure is the offer of proof. The purpose of an offer of proof is to convey to the trial court and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine the propriety of the trial court’s ruling. People v. Andrews, 146 Ill. 2d 413, 421 (1992); Green v. Union Pacific R.R. Co., 269 Ill. App. 3d 1075, 1082 (1995). Making a successful offer of proof can be a tedious task, but the effort may save your case on appeal.

Most offers of proof that I have either entertained or reviewed have been made by counsel in summary fashion. The danger in making an offer of proof this way is that specific facts are lost, and without facts, determining admissibility is very difficult. See Green, 269 Ill. App. 3d at 1082-84. In my opinion, the preferred method for making an offer of proof is the question and answer method. If a witness is available, then by all means you should call that witness to testify, as opposed to an informal recitation by counsel. This is a time-consuming process, and your witness and the trial court judge may express some consternation. However, if the testimony is ultimately excluded, your success on appeal may be dependent upon the specificity of the offer. Only those issues and grounds raised in the trial court may be raised on appeal, and a failure to make a sufficient offer of proof may deem your issue waived on appeal. Green, 269 Ill. App. 3d at 1082; see also Sandburg-Schiller v. Rosello, 119 Ill. App. 3d 318, 330-31 (1983) (holding that the defendant waived review of one of his defenses because after the trial court denied the defendant’s summary judgment motion, he failed to plead or offer proof of that issue during the evidentiary trial).

I would be remiss in concluding without the following tip and admonition. Especially when a long trial court record is involved, it is very helpful to have the judgment order, any memorandum from the trial court, and other orders supporting or incorporating critical issues included in the appendix to a given brief. In fact, Supreme Court Rule 342 (155 Ill. 2d R. 342) requires as much. That way, those documents are always readily available to the author and the panel members. However, please do not attach documents to your brief that were not properly presented to the trial court. Barker v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068 (1994). Sanctions on appeal take the joy out of a hard fought victory and make a loss that much more unpalatable.

Finally, Justice James Murray (retired First District) has said that "the record is the most important document in any appeal. An incomplete or inaccurate record can be fatal to an otherwise worthy appeal." In other words, the best brief conceivable cannot persuade and be successful if the record does not support the assertions therein. On the other hand, even the least skillfully crafted appellate brief can be redeemed by a clear, complete, and concise trial court record.

I believe that it is incumbent upon the appellate practitioner to report the trial court proceedings accurately. However, I also believe that it is my responsibility as a member of the Appellate Court to carefully review the record and to be familiar with the facts that constitute the case on review. As a trial court judge, I used to instruct jurors that they should listen carefully to closing arguments, but that they should also understand that the arguments were designed to persuade rather than to accurately relate the facts. Some briefs can be like closing arguments in that they are well planned, slick tools of persuasion with accompanying case law. My responsibility is to make sure that the issues presented are supported and preserved in the trial court record. The advocate’s responsibility is to adequately preserve a complete record lest the appeal be lost before the trial has ended.

Honorable Susan Fayette Hutchinson is a Justice of the Illinois Appellate Court, Second District. She received her Undergraduate Degree in 1971 from Quincy University and her Law Degree in 1977 from DePaul University.

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