May 29, 2011

Condo Owner’s Interlocutory Appeal Dismissed For Incomplete Rule 304(a) Finding

Marc and Mary Simon bought a condominium from Palmolive Tower Condominium before Palmolive finished constructing the building. The Simons were unhappy with Palmolive’s performance, and refused to release the money being held in escrow for Palmolive. So Palmolive sued the Simons, and the Simons counterclaimed for breach of contract and fraud.

Palmolive asked the trial court for judgment on the pleadings on its own multi-count complaint, and to dismiss the Simons’s counterclaim. The trial court dismissed the counterclaims, and stated its order was “a final and appealable order there being no just reason to delay enforcement or appeal.” Later the trial court gave judgment on the pleadings in favor of Palmolive on the first of several counts of its complaint. The remaining counts of Palmolive’s complaint were left standing. The court’s judgment said it was “final and appealable.”

The Simons appealed from both orders. The parties agreed the appellate court had jurisdiction over the order giving Palmolive judgment on the pleadings. But the court thought otherwise and dismissed that part of the Simons’s appeal. Here’s why.

Here, the defendants seek to appeal an order that resolved only one count of the plaintiff’s multi-count complaint and therefore unquestionably resolved fewer than all of the claims between the parties. Accordingly, under [Illinois Supreme Court] Rule 304(a) the order was not appealable unless it was accompanied by the circuit court’s express written finding that there was "no just reason for delaying either enforcement or appeal or both." For their stance that the circuit court’s April 10 order [giving Palmolive judgment on the pleadings on one of its claims] is appealable, the parties cite the court’s statement that the order was "final and appealable." That order, however, contains no reference either to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal.

The rationale underlying Rule 304(a) is that it allows appeals to be taken before the final disposition of a case where the circuit court considers an immediate appeal to be appropriate … Thus, Rule 304(a) allows a circuit court to limit piecemeal appeals yet still allow early appeals when, in its discretion, doing so "would have the effect of expediting the resolution of the controversy, would be fair to the parties, and would conserve judicial resources." … A circuit court’s declaration that an order is "final and appealable," without reference to the justness of delay, or even reference to immediate appealability, evinces no application of the discretion Rule 304(a) contemplates … Instead, absent some other indication from the record that the court intended to invoke Rule 304(a) … a circuit court’s declaration that an order is "final and appealable" amounts to nothing more than a non-binding interpretation.

The First District Illinois Appellate Court acknowledged that a Rule 304(a) finding does not have to exactly mirror the rule, but the circumstances do have to reflect the desirability of an interlocutory appeal. The lesson is: To assure your interlocutory order is appealable, and to avoid being a test case, make sure the Rule 304(a) finding states there is no just reason for delaying enforcement or appeal” of the order. Read the whole case, Palmolive Tower Condominiums v. Simon, Nos. 1-10-0427, 1348 (5/16/11).

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May 20, 2011

"Point Made" Author Regales About Appellate Brief Writing

Ross Guberman is the author of Point Made: How to Write Like the Nation’s Top Advocates. Go here to read illinoisappellatelawyerblog’s review of Ross’s book. We liked it so much, illinoisappellatelawyerblog asked Ross to answer a few questions about appellate brief writing. Here is Part 1 of that Q&A.

Is brief writing important? If the court will do what it wants anyway, then why does it even matter what the lawyer says in the brief or how he or she says it?

I know there’s been some recent research suggesting that some appellate decisions fall on party lines (in employment-discrimination cases, for example, judges appointed by Democrats are more likely to side with employees than Republican judges are). But most cases are neither political nor ideological, and even in the ones that are, judges look to the briefs for guidance.

“In about 80 percent of all appeals, I reach a firm inclination just from reading the briefs,” said former Federal Circuit Chief Judge Paul Michel.

So yes, what the lawyer says matters very much. But what about the other part of your question? Does “how” we make those points matter? Perhaps the style or the presentation shouldn’t matter, but judges and clerks are only human after all. The easier and more engaging the read, the likelier they are to grasp the substance.

[Editor’s Note: The American Bar Association ran an article this week about U.S. Supreme Court Justice Alito’s public comment about the importance of the briefing process. Paraphrasing Alito, the ABA Journal wrote: “[O]ral arguments aren’t all that important, despite a popular belief to the contrary. Instead, he [Alito] asserted, what’s important are the briefs and the preparation.”]

What are the worst mistakes you see lawyers make in appellate briefs? What should lawyers never do or write in their appellate briefs?

Rather than talk about the really bad briefs or the truly unethical or sloppy lawyers, let’s talk about decent briefs from hard-working lawyers that could have been a lot better. Such “so-so” briefs have four main features:

• First, the lawyers spend too much time and too many words saying how wrong the trial court was or how erroneous or misguided their opponents’ positions are.

• Second, the lawyers fail to identify up front what former Third Circuit Chief Judge Ruggero Aldisert calls the “flashpoint of controversy”—the boiled-down version of the parties’ competing views on the law.

• Third, when cases are cited, the approach is like that of a news anchor: “this happened, that happened, and then the court said this about what happened.”

• Fourth, the style has a piled-on feel; the sentences and paragraphs just meander to and fro, with no real linear progression. Lots of sentences begin with “moreover” or “furthermore,” just so the lawyer has an excuse to write something else.

So what are the main characteristics of a good appellate brief?

OK, here are four! I’ll avoid the obvious ones like “be organized” or “have a good issue statement.”
• First, the lawyer sounds more like a passionate professor than an angry or indignant hired gun. You sound like you simply want to help the panel get the law right.

• Second, the lawyer uses the cases as a means to an end, not as an end in themselves. That means that you integrate the case law into your argument rather than the other way around.

• Third, the sentences have varied styles and lengths and structures. Many sentences include the word “although” or the phrase “even though”; they concede something about the other side’s position (or the trial court’s decision) but then explain why that concession shouldn’t carry the day.

• Fourth, the lawyer sprinkles in many fresh analogies, examples, figures of speech, and comparisons to bring the points alive.

Can you identify the elements of a good Fact section? In addition to the obvious – i.e., an adequate description of the facts – what should a good fact section accomplish?

The most important principle is “Show, Not Tell.” You need to purge your fact section of most adverbs, and also cut all phrases like “which illustrates” or “which reflects.” The facts must speak for themselves.

It’s also helpful to cut a lot of the dates altogether, or at least to replace them with phrases like “two days later.” Excessive dates are among the things that annoy judges most.

Use headings and subheadings liberally, and don’t be afraid to be a little creative or to write the headings in the present tense.
Also consider starting with an umbrella or overview passage that sets the stage, explains who the parties are, and previews what sort of story the court is about to read.

Can you identify the elements of a good argument section?

Let me share the best test of all, and one that only the nation’s very best appellate advocates pass. In each section, most or all of your paragraphs should begin with a reason the heading is true, and no paragraphs should begin with neutral observations on the dispute, the facts, or the case law.

The other key element is to invoke the sense of a dialogue, not a monologue. In other words, you really have to engage the counterarguments and tackle them head-on. Making everything sound one-sided and overly simple will ultimately backfire.

Part 2 of Ross Guberman on appellate brief writing to follow soon.

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May 9, 2011

State’s Compliance With Mental Health Code A Public-Interest Exception To Mootness Doctrine

Nicholas L. had been living at the Elmhurst Memorial Hospital for about a month when the State of Illinois filed a petition to administer electroconvulsive therapy and psychotropic medication. The trial court heard testimony on the State’s petition, then ruled in favor of the State.

Nicholas appealed, arguing that the State did not comply with the Mental Health and Disabilities Code because it did not give Nicholas written notification of alternative treatments. The State first argued the appeal was moot because the trial court’s order allowing the State’s petition already had expired. Nicholas argued the appellate court should consider the case anyway because the public-interest exception to the mootness doctrine applied. Because the question in the case involved the State’s compliance with the Mental Health Code, the Second District Illinois Appellate Court agreed with Nicholas and heard the appeal. Here is the appellate court’s rationale.

[T]he question presented by respondent [Nicholas] involves the issue of statutory compliance and thus qualifies as a matter of a public nature. Moreover, the vast number of cases addressing the issue of compliance with section 2-102(a-5) [requiring the State to give the patient information about alternative treatments] … indicates both a need for an authoritative determination for the future guidance of public officers and the likelihood of future recurrence … We also confirm respondent's assertion that no published opinion in our state has addressed the specific issue of failure to provide written notification solely of alternative treatment options. Accordingly, the public-interest exception is applicable to respondent's contention regarding statutory compliance.

The appellate court ultimately reversed the trial court because “psychotropic medication is invasive and includes possibly significant side effects, and because involuntary administration implicates important liberty interests, courts must exercise caution in entering such orders and require "firm proof" of the necessary statutory elements.”

Read the whole case, In re Nicholas L., No. 2-09-1181 (2/16/11), by clicking here.

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May 5, 2011

Failure To Object At Trial Dooms Appeal In Car-Cow Crash Case

Benjamin Juday’s pickup truck was damaged when it crashed into a cow owned by David Albers. The truck was insured by American Family Mutual Insurance. American Family, as subrogee of Juday [stood in Juday’s shoes], sued Albers under the Illinois Domestic Animals Running At Large Act to get compensation for the damage to the truck.

During the trial, American’s lawyer argued that Albers did not show he acted reasonably to restrain the cow. Albers argued just the opposite. A jury returned a verdict in favor of Albers. American Family asked the trial court for judgment notwithstanding the verdict. The trial court denied American’s request, so the insurer appealed.

In the appellate court, American Family argued that Albers could not argue he acted reasonably because (1) Albers’s reasonableness was an affirmative defense to American’s claim under the Animals Running At Large Act, and (2) Albers had not submitted a written affirmative defense.

The Third District Illinois Appellate Court rejected American’s waiver argument. Even though Albers had not submitted a written affirmative defense, the question of Albers’s reasonableness was central to the trial, and American Family had not made the objection in the trial court. Here’s how the court explained it:

Here, the plaintiff [American Family] has waived any objection to the defendant's failure to plead reasonable care as an affirmative defense by failing to object at trial. The record indicates that the defendant's theory throughout trial was that the plaintiff's claim would be defeated because he had used reasonable care to restrain his cattle. The issue of whether the defendant exercised reasonable care was discussed by both parties in opening statements and in their closing arguments. Further, the plaintiff questioned the defendant as part of its own case-in-chief on the issue of the defendant's use of reasonable care. Both parties argued the issue in the context of the motions for directed verdict. Moreover, the plaintiff did not object to the defendant's proffered jury instructions discussing reasonable care. There was no surprise in the defendant's assertion of reasonable care as a defense.

So while American argued that Albers waived a reasonableness defense, the appellate court ruled that American waived that argument because it had not raised it in the trial court. In the end, the appellate court affirmed Albers’s judgment. Read the whole case, American Family Mutual Insurance Company v. Albers, No. 3-09-0839 (2/10/11), by clicking here.

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