Illinois Appellate Lawyer Blog

In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff’s reply brief for lack of appropriate citations.

Rejecting plaintiff’s Joycian stream of consciousness style, the court stated:

The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341 … Rule 341(j) , which authorizes an appellant to file a reply brief, provides as follows: "The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument." 210 Ill.2d R. 341(j). Rule 341(h)(7) requires appellants to give reasons for their contentions "with citation of the authorities and the pages of the record relied on." 210 Ill.2d R. 341(h)(7). This court has stated that "[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." … A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited.

Read the whole case, Crull v. Sriratana, No. 4-06-0952 (10/11/07), by clicking here.

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In this tax dispute, the bank’s brief in the court of appeals contained a 4½-page “Nature of the Case” section. That was “excessive,” according to the Second District Illinois Appellate Court. But the bank’s excessiveness did not interfere with review of the case, so the court declined to strike that section of the brief.

The whole case, County Treasurer v. Lake Carroll Association, No. 2-05-1209 (6/5/07), is available by clicking here.

The second in the series of “Thoughts From An Unconstrained Litigator,” is now available for your downloading, amusement, knee-slapping laughter, criticism, and, I hope, thoughtful consideration. Read “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read,” by yours truly. It’s posted right here, on the shameless self-promotion section of www.illinoislocalcounsel.com.

I judged one of the early final rounds of the American Bar Association Law Student Division National Appellate Advocacy Competition a couple of weeks ago. I was told that this is the most prominent moot court competition in the country.

I judged two arguments. Each team split the argument between two teammates. All eight of the contestants I judged did a fine job. Insofar as performance was concerned, the difference among these teams was on the margin. All of the presentations were polished, and one of the defense teams offered an especially good and professionally structured argument.

The teams’ briefs were independently assessed and scored for the competition. The scoring system places heavier emphasis on the oral presentation than the written product. I guess that’s the way all moot court competitions are. That’s a problem that needs to be fixed.

In the real world of appellate practice, the written brief usually is far more important than oral argument. An overwhelming number of cases are decided on the briefs. And most judges I’ve heard on the subject say that oral argument rarely persuades them one way or another. The anecdotal evidence I get from colleagues around the country supports the notion that appellate courts are allowing oral argument in fewer cases than ever. I wrote about this in a recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.”

So to the extent moot court is an educational experience meant to prepare students for real appellate practice, greater emphasis should be placed on the teams’ written product. Oral argument can be important in some cases, but its decreasing influence should be acknowledged in moot court competition.

What you think you’ve written is not always the way it reads. That’s why the best way to proofread any writing, legal brief or quick email, is to read it out loud. Can’t be bothered? James Michener did it, and his novels are longer than a tall drink of water.

Well, maybe you have a sore throat or you just don’t have it in you to read your 50-page brief after you’ve worked on it for a month or more. Save your mellifluous tones and let Ultra Hal Text-to Speech Reader do the work. I learned about Ultra Hal from Eric Waltmire’s Blog. Ultra Hal TTS Reader reads your text out loud. You’ll be able to hear if what you wrote is what you meant to say. Ultra Hal TTS Reader is free. It’s very cool, and it does improve the proofing process. I used it for this error-free entry.

Plaintiff bought a car that he claimed had an “unremediated defect.” He appealed after his case was dismissed at trial. The appellate opinion contains a list of horribles in plaintiff’s brief and the record -- misleading Points and Authorities and Issues sections, lack of citation to the record, an incomplete record, to name a few. Despite the numerous transgressions from the Illinois Supreme Court Rules, the court considered the appeal, stating:

Given the deficient brief and record, it would be within our discretion to affirm the sanction [dismissal] order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.

The entire case, Gonzalez v. Nissan North America, No. 1-05-3539 (1st Dist. 12/4/06), is available by clicking here.

Last week the ISBA sponsored a seminar on Effective Legal Writing. I was intrigued by the promo, which promised going beyond the usually drab basic stuff you can get from any decent style book. Greg Colomb, an English professor at the University of Virginia, taught the seminar. He did not disappoint. He was witty and thoughtful as we deciphered and rewrote samples of ineffective and effective writing.

The discussion about writing “flow” was particularly impressive. Greg emphasized two points.

1. Sentences are bundles of information. Readers understand longer, more complex information better when it arrives at the end of a sentence. The “architecture of a clear sentence” suggests placing short bundles of information before long bundles.

2. Clarity and directness depend on the first six words in your sentence. Use the six-word test to assure you are opening with a familiar subject taking important action.

Greg also discussed principles of writing persuasively. The crucial question for the writer is: What creates the mental disposition in my reader to do what I want? Readers have three tendencies the writer should acknowledge in trying to create that mental disposition:

1. Readers always remember details concerning the main character first.

2. Readers tend to hold the main character responsible.

3. Readers tend to judge events through the value system of the main character.

The seminar goes on my recommended list. Experienced writers and writers at the infancy of developing their style should benefit from it. More information about writing technique and style is available at the University of Virginia English Department’s web site, by clicking right here.

Argument should be saved for the Argument section of your brief. In Illinois, Supreme Court Rule 341 prohibits argument in the Fact section. When Commonwealth Edison filed a brief that stepped into foul grounds, the Second District Appellate Court “admonish[ed] counsel for ComEd to comply with the supreme court rules in the future.” The court read Com Ed’s facts, but disregarded the statements that violated Rule 341.

The whole case, Village of Roselle v. Commonwealth Edison Co., No. 2-06-0294 (2006), is right here.

I am writing a series of articles for the DCBA Brief, the journal for the DuPage County, Illinois Bar Association, that we’re calling “Thoughts Of An Unconstrained Practitioner.” The first article, published in November 2006, is titled, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” This article suggests the steps a lawyer and writer must take to prepare an appellate brief. The article is available on my website, www.illinoislocalcounsel.com, by clicking here.

Next in the series, to be published in January 2007, I think will be titled, “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read.” This article suggests ideas for good writing. It’s not a rehash of the stuff you can get from Strunk and White, and any number of other good writing manuals. It’s Merican’s unconstrained thoughts on good writing for appellate briefs.