Illinois Appellate Lawyer Blog

Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.

… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief, or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record …

An appellee — at least one with the resources to do so — has to be pretty nervy to decide not to file a response brief. Why would you consciously decide not to file a response? I see only two legitimate reasons: (1) you can’t afford it or (2) the appellant’s positions are so lacking in merit that a response is not necessary.

Don’t delude yourself with respect to the latter. We’ve all seen dead-bang-winners turn into something else. The conceit that comes with winning in the court below can be dangerous.

Neil Ehlers worked as a salesman for Sunbelt Rentals, a seller and renter of industrial equipment. After about five years, Ehlers left Sunbelt and went to work for Midwest Aerials & Equipment, a company that competed with Sunbelt. Sunbelt sued Ehlers and Midwest to enforce restrictive covenants in Sunbelt’s employment agreement with Ehlers. Sunbelt got a preliminary injunction against Ehlers and Midwest, who then appealed.

One of the issues on appeal was whether the trial court properly followed the “legitimate business interest” test when it analyzed the propriety of the restrictive covenants. That test had been used by Illinois appellate courts for more than 30 years.

But the Fourth District Illinois Appellate Court ruled that it didn’t matter because the “legitimate business interest” test had been “spun out of whole cloth” and never had been adopted by the Illinois Supreme Court. The appellate court ruled it was not constrained to abide a standard set by other state appellate courts despite 30 years of acceptance and use. Here’s the court’s rationale:

[E]ven assuming that Ehlers and Midwest are correct that the trial court was bound by appellate court precedent to apply the "legitimate-business-interest" test and failed to do so, we decline to reach the merits of their argument because, unlike the trial court, this court is not required to follow the decisions of its sister districts or, for that matter, our own prior decisions … ("[T]he opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels".) Thus, having repudiated the validity of the "legitimate-business-interest" test earlier in this decision--assuming it was ever valid--we need not address the argument of Ehlers and Midwest that the trial court was bound by precedent to apply it in this case. Any error by the trial court in this regard simply no longer matters at this stage of proceedings.

This opinion is important to appellate practitioners as a reminder not to take the “long-established black letter law” for granted. Maybe it’s not so established. In this case, the appellate court referred to the “legitimate business interest” test as “nothing more than a judicial gloss incorrectly applied to this area of law by [other] … appellate courts.”

In the end, the appellate court affirmed the preliminary injunction. Read the whole case, Sunbelt Rentals v. Ehlers, No. 4-09-0290 (9/23/09), by clicking here.

For a statistical comparison among the federal appellate courts of sanctions orders against attorneys, take a peek at the Fall 2008 edition of the Seventh Circuit Review. The analysis concludes: “The Seventh Circuit issued the fourth-most sanctions overall and issued the most serious sanctions. In the end, the data suggests that the Seventh Circuit may be ‘nitpicking’ to a certain degree, but that there are other circuits that are nearly as critical of attorneys.”

Here’s the whole article by Patrick Austermuehle, “Just a Bunch of Fusspots and Nitpickers? That Pretty Much Sums It Up,” 4 Seventh Cir. Rev. 34.

Lots of appellate practitioners are solo or in small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That’s good for clients, and good for us.

I am always thinking about ways to increase the quality of my work product and push down costs. Lately I’ve been mulling over the idea of pooling resources with other appellate practitioners – staffing, electronic, digital, old-fashioned brainstorming with colleagues. Geography is not a limitation on the pooling concept; where you toil doesn’t matter. There is nothing insurmountable to prevent us from getting the best product and service, and the best pricing, from around the world to make our practices better and more cost efficient.

I’m interested in your thoughts. Call me (630-579-6460) or email (steve.merican@gmail.com) if you want to discuss this.

Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.

Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.

Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.

For more details, the court’s press release is available by clicking here.

The big news from the Illinois Appellate Lawyers Association luncheon to honor the Second District justices yesterday came when Presiding Justice R. Peter Grometer announced the court would definitely increase the number of cases receiving oral argument in the coming year. For as long as I can remember, the Second District Illinois court has been known for not allowing oral argument. No reason for the change in philosophy was given.

Increasing the number of oral arguments bucks the trend we’re seeing in many appellate courts. I wrote some about this in my recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” And while catching up on my reading, I read Susan Larsen’s comments, in a January 18, 2007 discussion in D. Todd Smith’s very fine Texas Appellate Law Blog. Larsen, formerly a justice on the Texas Court of Appeals, posits that oral argument forces judges to focus on the real people in a dispute and not “just theorize with briefs and transcripts and law books and computer research.”

Most lawyers routinely request oral argument. But most appellate judges I’ve spoken to say that oral argument rarely changes the way judges view a case. Many judges stick by the old saw that you can’t win a case at oral argument but you can lose one. So if the benefits of oral argument are minimal, and you’re more likely to hurt yourself than you are to help, then maybe we shouldn’t be so fast to prop up our egos with routine requests for oral argument.