The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

To Appeal Or Not To Appeal: Practical Counseling For The Client Considering An Appeal
By Timothy J. Storm

Before filing a notice of appeal, sometimes before entry of a judgment, occasionally even before filing the complaint, you may find yourself advising a client about whether an appeal can, or should, be filed.1  Of course, the particular circumstances of each case lead to unique considerations for each appeal. Nevertheless, experience shows that the attorney should address some common issues with the client before undertaking nearly every appeal.2 

The trial lawyer whose clients are not "frequent litigants" is probably familiar with the misconceptions that many lay people harbor about litigation B what steps are involved, how long it is likely to take, and how much it will cost. Multiply those misapprehensions by ten and you will approximate the typical level of client confusion about the appellate process.

The most common of those client misconceptions seem to fall into three categories. First, most clients do not really know what can be achieved in the appellate process. Second, clients often do not understand what becomes of the trial court judgment after an appeal has been filed. Third, clients may tend to overestimate (or simply have no basis to predict) the likelihood of success on appeal.

To properly advise the client who is considering an appeal, the attorney should be sure to explicitly address those three topics and correct any misconceptions that the client may have. After doing so, the attorney and client will have a shared basis to discuss whether to proceed with an appeal.

Explaining the Appellate Process

The first concern is by far the most common B the client does not understand the limitations of the appellate forum. Many lay people assume that an appeal is essentially a chance to begin afresh and take a "second shot" at the case. For example, a client who was dissatisfied with the testimony the first time around may believe that the witnesses will be more helpful when they "testify for the appeal."

To avoid any such misunderstandings, the lawyer should be sure to inform the client that the purpose of an appeal is to review the record that was created in the trial court to determine whether the circuit court committed reversible error.3  Accordingly, the parties and the appellate court are strictly limited to the record as it existed at the time the trial court ruled.4  Introduction of additional evidence at the appellate court level is not a feature of the appellate process.5 

The client should also understand that the constraints inherent in reviewing the trial court record extend beyond the evidence. As a general matter, the appellant is limited to raising only those legal theories on appeal that were first argued in the trial court.6  Moreover, the parties are usually prohibited from advancing a theory of the case on appeal that is not consistent with the theory relied on in the lower court.7 

Explaining the Options for Stay

Although they may not raise the issue, many clients assume that the circuit court’s judgment cannot be enforced while an appeal is pending. The significance of a stay of the judgment will depend upon the type of disposition in the circuit court. Where the order being appealed is, for example, the dismissal of a complaint, there is no occasion for a stay. At the other end of the scale, where the court has granted a money judgment or equitable relief which, if enforced, would be disastrous for a litigant, securing a stay will assume central importance.

In those cases where a stay may be significant, even if the client does not ask, the prudent attorney should be sure to explain that filing an appeal almost never stays a judgment automatically.8  Money judgments are stayed on appeal only upon posting of an appeal bond or other form of security.9  Judgments other than for money may be stayed "upon such terms as are just," with a bond or other security required where an interest in property is involved.10 

The rules provide for an automatic stay in one category of case. An order terminating parental rights under the Juvenile Court Act of 1987 is stayed automatically for 60 days following entry of the judgment.11  If a notice of appeal is filed within the 60-day period, the stay is automatically extended until the appeal is complete or the appellate court terminates the stay.12 

Explaining the Chances of Success on Appeal

The third common sort of misconception most often expressed by the potential appellant is that victory on appeal is nearly certain because the trial court=s decision is "obviously wrong." Besides the unavoidable fact that the infirmity of the decision was not so apparent to the judge who rendered it or to the opposing party and counsel who sought it, at least three other important factors counsel against a belief in the inevitability of an appellate victory. One, even if the trial court is dead wrong, the likelihood of a reversal is greatly affected by the standard of review that the reviewing court will apply to the issue(s) in question. Two, the appellant is fully responsible for locating grounds for reversal in the record and presenting to the reviewing court a persuasive argument for reversal based on those grounds. Finally, the circuit court may be affirmed on any basis appearing in the record, regardless of whether the court actually relied on that ground.

The Standard(s) of Review

It is somewhat tedious, but nevertheless important, for the attorney to explain to the client that for every issue brought before a reviewing court, the court will apply a standard of review.13  The standard of review indicates the degree of deference that the reviewing court provides to the decisions of the circuit court.14  Which standard is applied may well be outcome determinative in some cases15  and knowing which standard or standards of review will apply may play a significant role in deciding whether to appeal the trial court’s ruling.

Four general standards of review are used for appeals of Illinois civil cases: (A) de novo; (B) clear error; (C) manifest weight of the evidence; and (D) abuse of discretion.16  Even if the decision being appealed is "wrong," every standard of review except de novo provides the trial court with a "margin of error" so that the reviewing court will not reverse the decision.17  Under the most deferential standard B abuse of discretion B the appellate court affords the trial court’s ruling "great deference"18  and will reverse only where the court’s decision is "arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the court."19 

According to the author’s unscientific analysis, it appears that throughout all of the appellate districts and across a significant period of time, the average affirmance rate for issues decided under the least deferential, de novo, standard of review stands at about 55%; for the clear error and manifest weight of the evidence standards, the affirmance rate is over 75%; and where the most deferential abuse of discretion standard is used, the affirmance rate is well over 90%.

The Appellant Must Demonstrate Reversible Error

The second cause for caution in estimating the chance for a reversal is that the appellant is fully responsible for pointing out exactly where and how the trial court erred.20  Even if the appellee does not file a brief, the appellate court will not reverse the lower court’s decision unless the appellant demonstrates that error occurred.21  In that regard, the reviewing courts are fond of reminding litigants that it is not the "court’s duty to search the record for grounds upon which to base a reversal."22 

As noted in the first section of this article, a key feature of the appellate process is its reliance upon the trial court record. Errors are reviewable only if they are properly preserved in the record and not waived.23  The appellate court generally will review only those issues and arguments that were presented to, or considered by, the trial court.24 

The appellant has the burden of presenting a "sufficiently complete" record to support any claimed error.25  Without a sufficient record, the reviewing court will presume that the trial court’s actions were in conformity with the law and had a sufficient factual basis.26  In many cases, issues cannot be addressed on appeal either because they have been waived in the trial court or because the record is so incomplete that proper appellate review is not possible.27 

Further adding to the appellant’s burden on appeal is that not all errors constitute grounds for reversal. Under the "harmless error" doctrine, the appellant must show prejudice arising from the error, and reversal is required only where it appears that the outcome might have been different had the error not occurred.28 

Review Focuses on Outcome, Not Reasoning

Third, a corollary to the rule that the appellant must provide specific reasons and argument supporting a reversal of the judgment is the principle that the judgment may be affirmed on any basis supported by the record, regardless of whether the trial court relied upon that reasoning or ground.29 

The combined effect of a deferential standard of review, the burden on the appellant to demonstrate error, and the appellate court’s approach to affirming the judgment on any basis, even one not relied upon or even considered by the circuit court judge, tilts the balance strongly in favor of an affirmance. It is not an overstatement to say that a "wrong" decision B even one that the client may be convinced is "clearly wrong" B may be affirmed for a variety of reasons.

Conclusion

Before deciding whether to invest the time and money necessary to pursue an appeal, the client should be fully advised about the preliminary considerations outlined above. Further, experience shows that it is important for the attorney to address those matters explicitly rather than assuming that the client shares a common understanding of the opportunities and limitations of the appellate forum. Only after acquiring a basic understanding the appeal process can the client make the decision that rests only with the client B to appeal or not to appeal.

 1. Many of the considerations addressed in this article may be profitably discussed with both potential appellants and potential appellees. They are generally approached here from the appellant’s perspective because the appellee’s initial concern is not whether to file an appeal but whether to defend an appeal that has already been filed B usually a much easier decision.

 2. This article is geared toward advice that will assist the client in making informed decisions about proceeding with an appeal. The article does not cover important matters necessary to perfecting the appeal that more properly fall within the professional responsibility of the attorney, such as determining whether a post-judgment motion is necessary and filing a timely and effective notice of appeal.

 3. Foutch v. OBryant, 99 Ill.2d 389, 391, 459 N.E.2d 958, 959 (1984).

 4. Duncan v. Peterson, 359 Ill.App.3d 1034, 1047, 835 N.E.2d 411, 422 (2nd Dist. 2005), appeal denied, 217 Ill.2d 560, 844 N.E.2d 36 (2005).

 5. See, e.g., McCarty v. Weatherford, 362 Ill.App.3d 308, 311-12, 838 N.E.2d 337, 339-40 (4th Dist. 2005), appeal denied & rehg ordered, 218 Ill.2d 542, 844 N.E.2d 424 (2006) (and cases cited there).

 6. Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536, 662 N.E.2d 1248, 1253 (1996), cert. denied, 519 U.S. 910 (1996).

 7. Zdeb v. Baxter Int=l, Inc., 297 Ill.App.3d 622, 630, 697 N.E.2d 425, 430 (1st Dist. 1998), appeal denied, 179 Ill.2d 623, 705 N.E.2d 451 (1998).

 8. Ill. Sup. Ct R. 305(a). See also In re India B., 202 Ill.2d 522, 533, 782 N.E.2d 224, 231 (2002), cert. denied, 538 U.S. 915 (2003).

 9. Ill. Sup. Ct R. 305(a).

 10. Ill. Sup. Ct. R. 305(b).

 11. Ill. Sup. Ct R. 305(e).

 12. Ill. Sup. Ct. R. 305(e).

 13. See Redmond v. Socha, 216 Ill.2d 622, 633, 837 N.E.2d 883, 890 (2005).

 14. In re D.T., 212 Ill.2d 347, 355, 818 N.E.2d 1214, 1222 (2004).

 15. See People v. Miller, 173 Ill.2d 167, 207, 670 N.E.2d 721, 740 (1996) (J. McMorrow, specially concurring), cert. denied, 520 U.S. 1157 (1997).

 16. Dow Chem. Co. v. Department of Rev., 359 Ill.App.3d 1, 22, 832 N.E.2d 284, 300 (1st Dist. 2005); Bodine Elec. of Champaign v. City of Champaign, 305 Ill.App.3d 431, 435-36, 711 N.E.2d 471, 474 (4th Dist. 1999).

 17. Vuagniaux v. Department of Prof. Reg., 208 Ill.2d 173, 193, 802 N.E.2d 1156, 1168 (2003).

 18. Schwalbach v. Millikin Kappa Sigma Corp., 363 Ill.App.3d 926, 939, 845 N.E.2d 677, 688 (5th Dist. 2005), appeal denied, 218 Ill.2d 557, 850 N.E.2d 813 (2006).

 19. People v. Vercolio, 363 Ill.App.3d 232, 237, 843 N.E.2d 417, 421-22 (3rd Dist. 2006).

 20. Bielecki v. Painting Plus, Inc., 264 Ill.App.3d 344, 359, 637 N.E.2d 1054, 1064 (1st Dist. 1994).

 21. In re adoption of G. L. G., 307 Ill.App.3d 953, 962, 718 N.E.2d 360, 367 (2nd Dist. 1999).

 22. City of Rockford v. Suski, 307 Ill.App.3d 233, 247, 718 N.E.2d 269, 280 (2nd Dist. 1999), appeal dismissed, 187 Ill.2d 591, 724 N.E.2d 1275 (2000).

 23. Moon v. Smith, 276 Ill.App.3d 958, 961, 658 N.E.2d 856, 858 (2nd Dist. 1995), appeal denied, 166 Ill.2d 542, 664 N.E.2d 642 (1996).

 24. City of Chicago v. Latronica Asphalt & Grading, Inc., 346 Ill.App.3d 264, 276, 805 N.E.2d 281, 292 (1st Dist. 2004), appeal denied, 209 Ill.2d 578, 813 N.E.2d 221 (2004).

 25. Webster v. Hartman, 195 Ill.2d 426, 432, 749 N.E.2d 958, 962 (2001).

 26. Id.

 27. See, e.g., Jackson v. Naffah, 241 Ill.App.3d 1043, 1045-46, 609 N.E.2d 958, 960 (1st Dist. 1993).

 28. In re Detention of Traynoff, 358 Ill.App.3d 430, 441, 831 N.E.2d 709, 719 (2nd Dist. 2005).

 29. Central Ill. Elec. Serv., L.L.C. v. Slepian, 358 Ill.App.3d 545, 550, 831 N.E.2d 1169, 1173 (3rd Dist. 2005), appeal denied, 217 Ill.2d. 559, 844 N.E.2d 36 (2005).

Timothy J. Storm is the principal of Timothy J. Storm, P.C., in Wauconda, Illinois. He received a B.A. degree from the University of Chicago in 1986 and a J.D. with honors from John Marshall Law School in 1992. His practice is concentrated in civil appellate litigation in state and federal courts. The firm=s website is at www.timothyjstorm.com.


 
 
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