The Journal of The DuPage County Bar Association

Back Issues > Vol. 28 (2015-16)

What Appellate Lawyers Wish Trial Lawyers Knew
By Kaitlyn Anne Wild

Not every trial lawyer wants to handle, or feels comfortable handling, appeals. When a case needs to be taken up, or gets taken up, on appeal, the trial lawyer has the option of bringing in another lawyer with experience in appellate matters. Such collaborations between trial lawyers and appellate lawyers can be beneficial to the clients (who receive the best representation possible in all stages of their cases) and to the lawyers (who have the opportunity to focus their practices on the areas of law where their experiences and strengths lie).

However, bringing an appellate lawyer on board or transferring a case from a trial lawyer to an appellate lawyer needs to be done carefully and with all due consideration – especially if the client is going to be the appellant in the upcoming appeal. There is no clean break between the appellate process and the trial process as the former grows out of the latter. As such, an appeal can be only as strong as the trial court foundation on which it is based. Given all of the rules and case law set to limit the scope of appeals, there are multiple trial-court level practice points that appellate lawyers wish trial lawyers knew and would keep in mind. The purpose of this article is to explain a few of those practice points that generally relate to most civil appeals.

The notice of appeal must be timely filed. The ability to appeal a trial court ruling, whether a final judgment or an interlocutory order, hinges of the proper filing of a notice of appeal. The timely filing of a notice of appeal is both mandatory and jurisdictional.1 Accordingly, it is crucial that the decision to appeal a ruling be made quickly enough after the relevant judgment or order is entered that there is adequate opportunity to file the notice of appeal. In most cases, the time for filing the notice of appeal is short, thirty days from entry of the order to be appealed.2 In some cases, the time for filing a notice of appeal is very short, for example two days for appeals of temporary restraining orders.3

Without a properly filed notice of appeal, the appellate court will lack jurisdiction over the appeal and the appeal will be dismissed.4 The supreme court has made clear that neither the trial court nor the appellate court has the “authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.”5 If the appellate lawyer brought on a case is to be tasked with handling the necessary notice of appeal, the trial lawyer must be aware of the relevant deadlines and hand off the case in a timely manner.

There are generally no automatic stays pending an appeal. Filing a notice and prosecuting an appeal does not automatically stay the enforcement of a judgment or order of the trial court, except in a very limited class of family law cases.6 The supreme court has made clear that “the right to an appeal is a matter separate and apart from the right to supersedeas during the pendency of the appeal.”7 As such, perfecting the stay of any trial court proceedings and perfecting an appeal are two different processes, but both get handled at roughly the same time. There is only so much an appellate lawyer can do to try and stay the enforcement of a trial court judgment or order after the time for filing a notice of appeal has lapsed.

That is because Illinois Supreme Court Rule 305, which governs stays pending civil appeals, dictates that an application for a stay should be made to the trial court within the time set for filing the notice of appeal.8 To stay a money judgment, an appeal bond or other form of security equal to the amount of the money judgment, plus interest reasonably expected to accumulate during the pendency of appeal, should be presented to the trial court for approval and filing within that time frame.9 To stay a nonmoney judgment, a motion seeking the stay is filed with the trial court.10 Rule 305 states that a motion for a stay made to the appellate court “must show that application to the circuit court is not practical, or that the circuit court has denied an application or has failed to afford the relief that the applicant has requested.”11

If the procedures set out in Rule 305(a) are followed, the stay “shall” be entered.12 If the procedures set out in Rule 305 are not followed, an appellate lawyer is forced to fall back on the principal that “courts have inherent power to grant a stay pending appeal, and whether or not to do so is a discretionary act.”13

If it was not on the record, it is not in the record on appeal. The record on appeal is the appellate court’s window into a case; thus, it is important that every document and piece of evidence necessary to support an appellate argument be included in the record on appeal. What appellate lawyers wish every trial lawyer knew is that the record on appeal does not include all documents related to a case. Pursuant to Illinois Supreme Court Rule 321, “the record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law record.”14 The common law record of a case “includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party” as well as a report of proceedings that includes transcripts of any court proceedings prepared by trial court reporting personnel at the request of any party pursuant to Rule 323.15 A record on appeal does not include documents not filed with the trial court during the course of a case.16

The universe of documents relevant to an appeal that do not get filed with the trial court as a matter of course may ordinarily be small, but it can often include critical materials. For example, discovery documents, including written discovery responses and deposition transcripts may be important to an argument on appeal and all parties to a case may be familiar with them, but if they were not especially filed with or presented to the trial court for its consideration, the appellate court will not consider them.17 Evidence not presented to the trial court during the course of proceedings cannot be presented for the first time on appeal.18

It is the appellant’s burden to provide the appellate court with an adequate record on appeal for its consideration.19 Meeting that burden may require that a trial lawyer has made an appropriate offer of proof during trial or filed copies of all relevant discovery documents as part of briefing on a motion.20 Or it may require that a trial lawyer has ensured that all significant oral arguments and discussions were made “on the record” in open court before a court reporter or someone able to make a bystander’s report.21 If, for example, a jury instruction conference is held off the record, it may be difficult adequately to appeal a trial court’s ruling on a jury instruction because an appeal of such a ruling requires evidence of the contents of the conference and arguments and objections raised during the course thereof.22 Should the record on appeal fail to include a relevant piece of evidence, the appellate court will assume that there was an adequate legal and factual basis for the trial court’s ruling.23 Trial lawyers need to be cognizant of how to lay the foundations for a complete record on appeal during the course of proceedings before the trial court.

If an issue was not raised below, it cannot be raised on appeal. The preservation of issues for appeal is a very important task that must be undertaken by a trial lawyer during the course of proceedings before the trial court. The basic rule of thumb is that an argument or objection cannot be made for the first time on appeal.24 Accordingly, if there is a valid objection to be made or argument to raise, the trial lawyer must make the objection or raise the argument when the opportunity arises before the trial court. In some instances, the proper preservation of an issue for appeal requires that extra steps be taken during the course of a trial. If the outcome of the trial hinges on that issue,  those extra steps are well worth the effort, and an appellate lawyer cannot take them after the fact.

Evidentiary objections are an example of when consideration must be paid to the preservation of issues for appeal during the course of trial. Under Illinois law, “the failure to object to allegedly improper evidence operates as a waiver to consider the issue on appeal.”25 Not only that, but a trial lawyer needs to remember that an objection must be appropriately comprehensive because no grounds for objection other than those raised before the trial court will be considered by the appellate court.26 Additionally, the necessary objection must be made during the course of trial when the improper evidence is being presented, regardless of whether any objection was made in earlier proceedings. Even if a motion in limine has been filed with respect to the improper evidence, another objection to the evidence at the time it is offered during trial must be made in order to preserve the issue for review.27 The failure to renew the objection during trial results in forfeiture of the ability to challenge the trial court’s admission of the improper evidence.28 Also with respect to evidentiary issues, special steps must be taken during trial in order to preserve a challenge to the court’s exclusion of evidence. Specifically, as the supreme court has explained, “the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court.”29 The offer of proof demonstrates to the trial judge and opposing counsel the nature of the evidence the trial lawyer wishes to offer and provides the foundation on which the appellate court determines whether exclusion of the evidence was proper.30 As with the failure to raise a timely objection to the admission of evidence, the failure to make a timely offer of proof of excluded evidence results in a waiver of the issue on appeal.31

Rulings on jury instructions is another example of when consideration must be paid to the preservation of issues for appeal during the trial process. According to the supreme court: “To raise an issue on appeal concerning the giving of or the failure to give an instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court.”32 Such a requirement shows the importance both of raising all appropriate objections before the trial court and of ensuring that all important documents and proceedings are accounted for in the record on appeal.

Of course, the need to preserve issues for appeal is not limited to the time of trial. For example, filing an amended pleading forfeits all objections to the trial court’s rulings on any previously pleadings; therefore, special steps need to be taken to preserve those objections.33 Such steps may include filing an amended pleading that realleges or incorporates by reference any dismissed claims or standing on the dismissed claims, voluntarily dismissing any additional claims, and appealing the dismissal.34 Unless a trial lawyer takes the necessary steps to preserve the dismissal of claims, an appellate lawyer cannot contest the dismissal on appeal. No matter how strong an issue may be for appeal, a trial lawyer must ensure that the issue is properly preserved for review. Appellate lawyers wish trial lawyers would keep that in mind.

Conclusion. When pursuing an appeal, an appellate lawyer can work with only the tools provided by the trial lawyer during the course of proceedings before the trial court and an appellate lawyer’s hands are often tied when the necessary tools are not provided. No matter the merits of an argument on appeal, it may not succeed if review of the issue has been waived or if it cannot be adequately presented to the appellate court. Appellate lawyers wish trial lawyers knew about all of the potential pitfalls leading up to the appellate process. If a trial lawyer can keep in mind the requirements for preserving issues for review and creating a complete case record and the initial procedures for noticing an appeal and obtaining a stay of the enforcement of the relevant judgment or order, an appellate attorney will be in the best position possible for pursuing the appeal.

Even better, imagine an attitude shift in which each system views each child as valuable and unique. Imagine if everyone who touched the child’s life recognized his or her accountability for that child’s experience with that person. In addition to holding the child accountable for his actions – so far as the child is capable, what if we recognized that many of these children have been failed by those who should have cared for them? What if each of us took responsibility for seeing every child reach his or her potential? Or, for a start, just to graduate from high school with a regular diploma. It takes a village.

1. Dus v. Provena St. Mary’s Hosp., 2012 IL App (3d) 091064 ¶ 10, 968 N.E.2d 1178, 1181.
2. See Ill. Sup. Ct. R. 303(a), 304(a), 306(c), 307(a).
3. Ill. Sup. Ct. R. 307(d).
4. Gen. Motors Corp. v. Pappas, 242 Ill.2d 163, 176, 950 N.E.2d 1136, 1144 (2011).
5. Mitchell v. Fiat-Allis, Inc., 158 Ill.2d 143, 150, 632 N.E.2d 1010, 1012 (1994).
6. See Ill. Sup. Ct. R. 305(e).
7. Jack Spring, Inc. v. Little, 50 Ill.2d 351, 356, 280 N.E.2d 208, 212 (1972).
8. See Ill. Sup. Ct. R. 305.
9. Ill. Sup. Ct. R. 305(a).
10. Ill. Sup. Ct. R. 305(b), (d).
11. Ill. Sup. Ct. R. 305(d).
12. Ill. Sup. Ct. R. 305(a).
13. See Stacke v. Bates, 138 Ill.2d 295, 302, 562 N.E.2d 192, 195 (1990).
14. Ill. Sup. Ct. R. 321.
15. Ill. Sup. Ct. R. 321, 323.
16. See Rutter v. Horace Mann Ins. Co., 190 Ill.App.3d 467, 473, 545 N.E.2d 1381, 1384 (2d Dist. 1989).
17. See, e.g., In re Custody of Landau, 233 Ill.App.3d 853, 858, 600 N.E.2d 25, 28-29 (1st Dist. 1992); James by James v. Yasunaga, 157 Ill.App.3d  450, 452, 510 N.E.2d 531, 533 (4th Dist. 1987.
18. Kessler v. Zekman, 250 Ill.App 3d 172, 188-89, 620 N.E.2d 1249, 1260 (1st Dist. 1993).
19. Davis v. Allstate Ins. Co., 147 Ill.App.3d 581, 584, 498 N.E.2d 246, 248 (2d Dist. 1986).
20. See Hall v. Svea Mut. Ins. Co., 143 Ill.App.3d 809, 813, 493 N.E.2d 1102, 1106 (3d Dist. 1986).
21. See In re Custody of Landau, 233 Ill.App.3d 853, 858, 600 N.E.2d 25, 28-29 (1st Dist. 1992) (mentioning
transcripts of relevant child custody hearings).
22. Brown v. Decatur Mem’l Hosp., 83 Ill. 2d 344, 350, 415 N.E.2d 337, 339-40 (1980).
23. In re Custody of Landau, 233 Ill. App. 3d 853, 858, 600 N.E.2d 25, 28-29 (1st Dist. 1992).
24. See W. Cas. & Sur. Co. v. Brochu, 105 Ill.2d 486, 500, 475 N.E.2d 872, 879 (1985).
25. Scassifero v. Glaser, 333 Ill.App.3d 846, 859, 776 N.E.2d 859, 870 (2d Dist. 2002).
26. Moore v. Farmers Ins. Exch., 111 Ill.App.3d 401, 411, 444 N.E.2d 220, 227 (2d Dist. 1982).
27. Simmons v. Garces, 198 Ill.2d 541, 569, 763 N.E.2d 720, 738 (2002).
28. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887 ¶ 71, 30 N.E.3d 631, 648.
29. People v. Andrews, 146 Ill. 2d 413, 420-21, 588 N.E.2d 1126, 1131 (1992).
30. People v. Andrews, 146 Ill. 2d at 421, 588 N.E.2d at 1131 (1992).
31. People v. Andrews, 146 Ill. 2d at 421, 588 N.E.2d at 1131 (1992).
32. Brown v. Decatur Mem’l Hosp., 83 Ill. 2d 344, 350, 415 N.E.2d 337, 339-40 (1980).
33. Jacobson v. Gimbel, 2013 IL App (2d) 120478 ¶ 19, 986 N.E.2d 1262, 1269.
34. Id.

Kaitlyn Anne Wild is a graduate of Marquette University Law School and currently works as an attorney with the firm of Rathje & Woodward, LLC in Wheaton, Illinois. She has a B.A. from Mount Holyoke College and an M.B.A. from Marquette University Graduate School of Management. She received her J.D. from Marquette University Law School.

 
 
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