Articles Posted in Appellate Practice

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here. 

We are nothing if not current.

An article published in 2003 about effective subheadings, available here for the clicking, was referenced at the top of a “legal writing” Google search I just did. Authors Kara Thompson and Zach Brez for the Writing Center at the Georgetown University Law Center, did a fine job in this short piece explaining the importance of the “point heading.” (Except please don’t make subheads all caps; typical sentence style, boldfaced, is better.)

Don’t be lazy about drafting the subheadings. Sometimes they will be the most important part of your brief.

Conventional wisdom says to limit your subheadings to one sentence. But that’s not necessarily best practice.

Have you ever encountered a cold court? Sometimes judges don’t have the time or the desire to read your brief thoroughly, or at all, before your case is called. I’ve watched judges leaf through my motion or my brief during oral argument. I want that judge to understand my positions. One-sentence subheadings don’t always accomplish that.

So by all means, make those subheads incisive and argumentative, and a little bold. And don’t be afraid to give the judge more help understanding your positions with a longer subheading.

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.

Get the whole guide by clicking here.

Nadeem Nizamuddin was expelled from school. He asked for and received a temporary restraining order against Community Education in Excellence, the operator of the private school, staying the expulsion at least until after a preliminary injunction hearing.

Excellence appealed the restraining order. But its appeal was dismissed for failure to comply with Illinois Supreme Court Rule 307(d), which states the requirements for establishing appellate jurisdiction over an appeal of a temporary restraining order.

Here is what the Second District Illinois Appellate Court said Excellence did wrong.

• Filed its petition and its Notice of Appeal in the wrong court. Excellence filed in the circuit court, which in a typical case is correct. But appeals from TROs have an expedited schedule, so Rule 307 requires the petition and the Notice of Appeal to be filed in the appellate court.

• Mailed the petition and the Notice of Appeal to the appellate court on the filing deadline. Ordinarily that’s okay; the “mailbox rule” governs typical appeals and makes the date of filing the same as the date of mailing. But the “mailbox rule” did not apply to this appeal from a TRO, and the appellate court did not receive the documents until after the filing deadline. So the appellate court said Excellence’s documents were too late to establish appellate jurisdiction.

• Served Nadeem by regular mail. But Rule 307 says service on the opposing party has to be by personal delivery or fax. So Excellence’s proof of service, which showed service by mail, was insufficient.

• Prejudiced Nadeem’s lawyer because he had only one day to file a response to Excellence’s petition. Had he been served personally or by fax, he would have had double the time to prepare a response.

Click here for the whole opinion, Nizamuddin v. Community Education In Excellence, 2013 IL App (2d) 131230 (12/23/13).

Carolyn Mahoney sued her former husband, Billy J. Cox, and his lawyer, Marc Gummerson, for plotting to kill her. Cox was in jail, so Mahoney served the Illinois Department of Corrections with a subpoena to find out information about the plot. The DOC asked the trial court to quash the subpoena because the documents Mahoney wanted contained the name of a confidential informant. The DOC argued the informant’s safety could be at risk if his identity were disclosed.

Trial court refused quash the subpoena, and instead compelled the DOC to produce the records. The DOC then asked for an immediate appeal of whether the informant’s identity was privileged under an Illinois statute.

The appeal was allowed, and a question about whether the statute made the informant’s identity confidential was certified. The DOC filed its brief, but neither Mahoney, Cox, nor Gummerson responded. So the issue was how the appellate court should treat an appeal that no one opposed.

The Second District Illinois Appellate Court acknowledged the usual methodology when an opposing brief is not filed: the court considers the merits of the appeal “if the issues and record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant [party appealing] if the appellant establishes a prima facie [on its face; at first blush] case for reversal.”

But the appellate court ruled that the typical method would not work in this case because the court had to decide a certified question of law. Here’s how the court explained it:

“[I]n an appeal that considers certified questions … ruling in favor of the appellant who establishes a prima facie case would entail not ordering a case-specific outcome but, rather, articulating a legal proposition that may or may not be correct… [T]he failure to file an appellee’s brief does not establish or corroborate the answer to a certified question. A certified question is a question of law that is not susceptible to either a default or a prima facie showing of error. Therefore, we address certified questions on their merits, regardless of their simplicity. Our review is de novo [no trial court discretion] because we are presented solely with questions of law.”

Read the whole opinion, Mahoney v. Gummerson, 2012 IL App (2d) 120391 (11/20/12), by clicking here.

Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.

Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”

These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.

The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”

Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.

We start now.

These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.

Tip One
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.

One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.

Tip Two
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.

In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.

Remember the old saying: Trial courts look for justice. Appellate courts look for error.

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.

This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court.

The opinion grew from a summary judgment given to Scott Memorial in a False Claims Act case. Abner appealed the summary judgment. As required by Federal Rule of Appellate Procedure 32, her lawyer signed a certification that her brief was under the 14,000 word limit. In fact, the brief had more than 18,000 words.

In response to the rule to show cause, Abner’s lawyer conceded his brief was too long. He said he inadvertently misread the rule, and did not include everything in the word count that he should have. But the appellate court ruled that Rule 32 is not ambiguous, “hence [there was] no room for misinterpreting the rule.”

After his incorrect affidavit was discovered, Abner’s lawyer asked for leave to file a brief in excess of the word limit. The appellate court rejected that request because it “advance[d] no persuasive grounds for allowing an oversized brief to be filed, and so the brief is stricken.”

The appellate court ruled the appeal was meritless, and summarily affirmed the summary judgment. “To allow time for the appellants [Abner] to file a compliant brief and the appellees [Scott Memorial] to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.”

Appellate lawyers are belt-and–suspenders types. We read the rules; then re-read the rules; then just to be sure, read them again. We check our cites; re-check our cites; then just to be sure, check them again.

We agonize over the legal briefs we write. And for good reason: more than 90 percent of appeals are decided on the briefs. We think our facts tell the story our judges need and want to read. We think our issues and arguments leave no room for doubt.

If there were a way to know if your brief does what you think it does, would you take it? Would your client want you to? If there were a way to know if your brief addresses the facts and the law appellate judges expect, would you take it? Would your client want you to?

Appellatology offers the way. We let you ask them. And you do it from the comfort of your office (or anywhere else you have a web connection).

Using the latest in web conferencing software, Appellatology puts together a mock panel of retired judges, senior lawyers, and academics to conference your brief, just like your appellate panel will. Only this time, you’ll hear it all before you file your brief.

We’ve stripped the process of unnecessary overhead expense. We’ve set it up so you can ask questions during the session. And everything will be recorded for your easy access, so you and your colleagues and your client can see and hear the session anytime.

What better way to tighten your belt and suspenders?

Learn more by clicking on the Appellatology button at the top of this page, or right here if you prefer. Rather talk to someone? Call me at the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department, 630-579-6460.

More Mock Appellate Judges Wanted
• Do you like reading the law?
• Do you have superior powers of analysis?
• Do you know good writing?
• Can you communicate your ideas and are you willing to speak your mind?

Then maybe you should be an Appellatology panel member.

Appellatology is building its mock appellate judge panel, and needs retired judges (trial or appellate), senior lawyers, and academics to fill the bill.

Why should you do it?
• Good pay.
• No travel.
• Geography not an issue because we do everything over the internet. (And you don’t need new software.)
• Enjoy the excitement of being part of a new service and working with other bright and terrific people.
• And it’s fun.

Call (630-579-6460) or email me (steve.merican@gmail.com) if you’re interested. I’ll be happy to tell you more.