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.

The Illinois Supreme Court rules require appellant’s merits brief to have an introductory paragraph. The introduction normally is described as the “Nature of the Action.” I often see appellant merits briefs that have long and argumentative “Nature of the Action” sections. The Second District Illinois Appellate Court recently struck one that was just too much. Here’s why:

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings … Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

The lesson is: Resist the urge to argue in the introductory paragraph. Just because you can throw down the gauntlet at that point doesn’t mean you should. The rules do not instruct you to do so. And most important is that your audience is not looking for your argument in the introduction.

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.

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

The Second District Illinois Appellate Court ruled that it was permitted to take judicial notice of the administrative code, so the taxpayers were allowed to include them in their appendix. However, stating it had no legal basis, the appellate court struck the dictionary excerpt. Here is what the court stated.

We first note that courts are required to take judicial notice of all rules published in the Illinois Administrative Code and the Illinois Register … This court may take judicial notice of rules and regulations even when they are not part of the record on appeal … Thus, while [Illinois] Supreme Court Rule 342(a) [stating the requirements for the appendix] … does not provide for the inclusion in the appendix of such nonrecord material as rules and regulations, we do not find that the inclusion of the Illinois Administrative Code sections is improper, and we deny the motion to strike as it relates to this material. However, the inclusion of the printout of the Internet thesaurus has no legal basis, and it and all references to it are stricken.

Get the whole case, G.I.S. Venture v. Novak, No. 2-07-0934 (2/16/09), by clicking here.

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.