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The Litigation Minefield: How to Avoid Being A Casualty From The Circuit Court To The Appellate Court 

By Edward R. Sherman


Few of us are perfect and losing is part of the life of a trial and appellate attorney. We may lose because our client was not credible or there just was not enough evidence to convince a trier of fact. We may also lose because we are trailblazing a novel issue of law. These losses occur and while they may lead to disappointment with clients, they are acceptable.

 

On the other hand, there are some losses that are avoidable, unacceptable and can be traps for the unwary. The most well-known relate to deadlines, failure to raise arguments or comply with court rules. While some of these can be overcome based on a court’s general preference to have a case tried on its merits, they are minefields for the unguarded that attorneys prefer to avoid. This article explores these minefields at the circuit court level that may impact a party’s success on appeal, as well as initial appellate steps that require extra caution.

 

Pleadings – Don’t Lose A Limb Trying to Get in the Door

The first minefield relates to the governing document of all lawsuits: the complaint. Illinois is a fact pleading jurisdiction, and failure to set forth sufficient facts can result in the dismissal of a case at its beginning.1 Additionally, attorneys should anticipate possible affirmative defenses that may be raised when drafting a complaint as affirmative defenses can also be asserted as a motion to dismiss under 735 ILCS 5/2-619(a)(9) at the outset of a case.2 Apart from these issues, attorneys need to be mindful to amend their pleadings throughout their case as additional facts and theories develop because “proof without pleadings is as defective as pleadings without proof,” which can result in losing an appeal.3 Finally, when drafting a verified complaint, be mindful that any admissions against a party’s interest (i.e. a definitive statement of an amount of damages or an action by a plaintiff) may be considered a judicial admission such that a particular point is conceded for the rest of the lawsuit.4

 

In the event a motion to dismiss, motion for judgment on the pleadings or a motion for summary judgment is presented in response to a complaint, attorneys should consider asking for leave to amend or seek discovery as an alternative to setting a briefing schedule. While courts have discretion in granting leave to amend a complaint, leave is to be freely given and courts that fail to do so can be found to have abused their discretion, especially early in a case.5

 

Discovery – Think On Your Feet So You Don’t Risk Losing Them

The second minefield relates to discovery. While most attorneys think about facts they need to prove their case at trial, it is also important to ensure the facts being developed will be admissible as well. Make sure to think about how to authenticate documents and establish foundations for admission, as well as how to avoid exclusionary rules such as hearsay and relevance. Also, treat evidence depositions as “trial” because there is no opportunity to take a second bite at the apple to admit evidence from a witness who is not present.

 

These rules are important not only for trial, but also at the summary judgment stage because Supreme Court Rule 191(a) requires documents in response to a motion for summary judgment be authenticated and be admissible at trial.6

 

Mandatory Arbitration – Don’t Forget Your Ammunition

While not all cases proceed with mandatory arbitration under Supreme Court Rules 86 through 95, as well as 222, close attention must be paid to the rules in situations when arbitration is applicable. First, Supreme Court Rule 222 requires certain disclosures be made without request from an opposing party.7 Undisclosed evidence results in a mandatory exclusion at trial except by leave of court and with good cause shown.8 Furthermore, no discovery is allowed after the arbitration hearing and before trial unless good cause is shown.9 Finally, the failure of a party to appear at an arbitration hearing constitutes a waiver of the right to reject an award.10

 

Pretrial Motions – Build A Shield To Protect Yourself

Summary judgment motions are based on a combination of the law underlying the legal theories being presented and the facts developed in discovery. For a party attempting to obtain summary judgment, it is important to keep questioning, during depositions and other discovery devices, focused on the issues on which you are seeking summary judgment. Maintaining focus ensures that answers to interrogatories and deposition transcripts are clear and provide undisputed facts that you need to prevail on a particular legal theory. Also, for attorneys practicing in Cook County, keep in mind that Cook County Local Rule 2.1(f) requires that a summary judgment motion be presented and a briefing schedule set at least 45 days before trial.11

 

For a party opposing a summary judgment motion, developing disputed facts during depositions on issues that may form the basis of a summary judgment motion is crucial. Additionally, a pause should be taken before agreeing to a briefing schedule. This ensures that all discovery needed to respond has been obtained. If additional discovery is needed, a request should be made to enter and continue, if possible. If discovery is unattainable, consideration should be given to filing a Supreme Court Rule 191(b) affidavit setting forth the discovery that cannot be obtained and the reasons why it cannot be obtained.12 This will at least provide a record of additional evidence that can be argued as a basis for reversal on appeal. Finally, if oral argument is granted, the nonmoving party should generally consider obtaining a court reporter in any county where one is not provided so that the appellate court will have all arguments made to the circuit court, including arguments that may be made for the first time at oral argument in response to a movant’s reply brief.

 

Trial Motions – Be Prepared For Battle

Motions in limine are important for excluding evidence that should not be heard at trial. Don’t let hard work go to waste by failing to enforce motions in limine at trial. Failure to enforce a motion in limine may constitute a waiver. Also, if a motion in limine results in important evidence being excluded, make an offer of proof as to what the evidence would have shown at trial and assert arguments as to why exclusion was improper. Crucial evidence that is excluded can be a good argument for reversal on appeal if it is material to the outcome of the case. Having a second chair or appellate counsel observe and assist at trial can prevent these issues from inadvertently being overlooked.

 

Motions To Reconsider – Treat Your Wounds

Motions to reconsider are an important tool, but it is important to know when and how to use them. “The purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence which was not available at the time of the hearing, changes in the law or errors in the court’s previous application of existing law.”13 Of the three bases, error in application of existing law is the most commonly asserted. It is not proper to raise new issues, but a party is not constrained to repeat previous arguments verbatim. Additionally, in the event new material is presented on a motion to reconsider, it is the circuit court’s discretion to consider additional material.14 It is important to get a ruling on a motion to reconsider because “to preserve an issue for review, a litigant must first obtain either a ruling on the issue or a refusal to rule on it from the [circuit] court.”15

 

While motions to reconsider are important, they do not apply in every situation. Examples of orders to which motions to reconsider do not apply include: injunctions, orders compelling arbitration, receivers, mortgagees in possession, termination of parental rights and eminent domain proceedings.16

 

Final And Appealable Orders – Get Ready To Seek Vindication

In order to appeal, it is first necessary to have a final and appealable order. Certain orders such as judgments are final and appealable, while other orders first require a finding by a circuit court.

 

Examples of orders that are automatically final and appealable include: 1) judgments, 2) status of parties in guardianships/estates, 3) final judgments affecting rights of parties relating to receiverships and similar proceeding not appealable under Rule 307(a)(304(b)(2), 4) section 2-1401 petitions and 2-1402 citation final orders/judgments, 5) friendly contempt to challenge discovery orders, and 6) judgments that determine parental custody.17 Additionally, as set forth above, appeals relating to injunctions, orders compelling arbitration, receivers, mortgagees in possession, termination of parental rights, and eminent domain proceedings are all immediately appealable.18

 

Examples of orders needing special permission include: 1) interlocutory appeals under Rule 306 relating to granting new trials, 2) forum non conveniens/venue, 3) personal jurisdiction, 4) parental custody orders, and 5) disqualification of counsel.19 Additionally, if an order is entered that disposes of claims against one party or less than all claims, a circuit court can enter a finding that there is no just reason for delaying enforcement or appeal. The circuit court’s order, however, must be express and apply to a claim.20 Finally, a circuit court can certify an issue where there is a substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of the litigation.21

 

Initial Appellate Procedures – Getting Your Foot In The Door Again

Once a determination has been made that there is a final and appealable order, it is important to know when and what action needs to be taken. The most important issue to address initially is when and where to file a notice of appeal/application/petition.

 

A notice of appeal is the method for conferring jurisdiction of an appeal with the appellate court and if it is not timely filed an appeal will fail.22 For judgments and final orders, the notice should be filed with the circuit court within 30 days of the entry of the judgment being appealed.23 For interlocutory appeals under Rule 307(a), the notice of appeal should be entitled “notice of interlocutory appeal” and also must be filed within 30 days with the circuit court, however, a supporting record also must be filed with the appellate court within the same 30-day timeframe.24 For appeals seeking permission under Rule 306 and certified questions under Rule 308, the appeal is filed directly with the appellate court in the form of the petitions/applications actually being made.25 Appeals under Rule 306 have a 14-day deadline, while appeals under Rule 308 have a 30-day deadline.26

 

The second important issue as part of initial appellate proceedings is seeking a stay, if one is desired. For monetary judgments, stays require posting of a bond or other security.27 While the amount needed for a stay is generally the amount of the judgment plus anticipated post-judgment interest, the circuit court can consider the maximum amount available to the judgment debtor and fashion a specific remedy allowing a judgment debtor to proceed with the appeal.28 Stays should also be considered if there is an appeal of a foreclosure because if a property is sold to a third party during the pendency of an appeal, a reversal of a foreclosure judgment will not affect the sale to a third party during the pendency of an appeal.29

 

Once the issues of the notice and stay are addressed, it is important to docket the timeframe and tasks for all remaining parts of an appeal. Different types of appeals have different time frames for filing and particular attention should be paid with respect to the rules for the type of appeal being pursued. For example, an appeal of a final judgment has a briefing schedule of 35/35/14 days, while an appeal under Rule 307(a) has a briefing schedule of 7/7/7 days.30 Additionally, it is important to request any transcripts of proceedings early on to ensure the timely provision of the record by the circuit court to the appellate court.31 However, it is also important to keep in mind that in DuPage County, the clerk of the circuit court typically transmits the record on appeal once all transcripts of proceeding are received. This means that the quicker the transcripts of proceeding are requested and provided, the quicker an appellant’s brief on appeal will be due.

 

In conclusion, we all make mistakes. However, after reading this article, the unacceptable kind that all attorneys dread can hopefully be better avoided.


1. Alpha School Bus Co., Inc. v. Wagner, 391 Ill. App.3d 722, 735, 910 N.E.2d 1134, 1148 (1st Dist. 2009).

2. See 735 ILCS 5/2-619(a)(9).

3. American Standard v. Basbagill, 333 Ill.App.3d 11, 15, 775 N.E.2d 255, 258-59 (2nd Dist. 2002).

4. Shelton v. OSF Saint Francis Medical Center, 372 Ill. Dec. 241, 245-47, 991 N.E.2d 548, 552-54 (3rd Dist. 2013.

5. Bd. Of Educ. of Chicago v. Bd. of Trustees of Public Schools Teachers Pension, 395 Ill.App.3d 735, 741, 917 N.E.2d 527, 532-33 (1st Dist. 2009).

6. See JPMorgan Chase Bank, N.A. v. E.-W. Logistics, L.L.C., 380 Ill. Dec. 854, 874, 9 N.E.3d 104, 124 (1st Dist. 2014)(requirement that documents be authenticated in support of a motion for summary judgment); Robidoux v. Oliphant, 201 Ill.2d 324, 344, 775 N.E.2d 987, 998-99 (Ill. 2002)(Rule 191(a) is not a technicality).

7. Ill. Sup. Ct. R. 222(d).

8. Ill. Sup. Ct. R. 222(g).

9. Ill. Sup. Ct. R. 89.

10. Ill.. Sup. Ct. R. 91.

11. Cook County L.R. 2.1(f).

12. Ill. Sup. Ct. R. 191(b).

13. Korugluyan v. Chicago Title and Trust Company, 213 Ill.App.3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1991).

14. Greer v. Yellow Cab Co., 221 Ill.App.3d 908, 915, 582 N.E.2d 1292, 1296-97 (1st Dist. 1991).

15. Raintree Homes, Inc. v. Village of Kildeer, 302 Ill.App.3d 304, 306, 705 N.E.2d 953, 954 (2nd Dist. 1999).

16. Ill. Sup. Ct. R. 307(a); Royal Indemnity Company v. Chicago Hospital Risk Pooling Program, 372 Ill.App.3d 104, 107, 865 N.E.2d 317, 321 (1st Dist. 2007) (stating that an order compelling arbitration is analogous to a motion for injunctive relief).

17. Ill. Sup. Ct. R. 303(a); Ill. Sup. Ct. R. 304(b).

18. Ill. Sup. Ct. R. 307(a); Royal Indemnity Company v. Chicago Hospital Risk Pooling Program, 372 Ill.App.3d at 107, 865 N.E.2d at 321 (1st Dist. 2007) (stating that an order compelling arbitration is analogous to a motion for injunctive relief).

19. Ill. Sup. Ct. R. 306.

20. Ill. Sup. Ct. R. 304(a); John G. Phillips & Assoc. v. Brown, 197 Ill.2d 337, 339, 757 N.E.2d 875, 877 (Ill. 2001).

21. Ill. Sup. Ct. R. 308.

22. First Bank v. Phillips, 379 Ill.App.3d 186, 188, 882 N.E.2d 1265, 1267 (2nd Dist. 2008).

23. Ill. Sup. Ct. R. 303(a), 304(a), 304(b).

24. Ill. Sup. Ct. R. 307(a).

25. Ill. Sup. Ct. R. 306, 308.

26. Id.

27. Ill. Sup. Ct. R. 305(a).

28. Id.

29. Ill. Sup. Ct. R. 305(k).

30. Ill. Sup. Ct. R. 343; Ill. Sup. Ct. R. 307(a).

31. Ill. Sup. Ct. R. 323, Ill. Sup. Ct. R. 326.

 

Edward R. Sherman is an attorney in the Oak Brook firm of Lillig & Thorsness, Ltd. His practice includes civil litigation and appeals. He is a member of the Appellate Lawyers Association, Illinois Association of Defense Trial Counsel, as well as the Defense Research Institute’s Appellate Advocacy Committee.