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.
Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit. At the same time, the forest preserve passed an ordinance that stated “the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].”
The owners claimed they could not develop the property for commercial purposes because the ordinance stated the government’s intention to condemn it. So the owners sued the forest preserve and the arboretum under the due process clause of the Fifth Amendment of the U.S. Constitution for engaging in a conspiracy to take the land. The trial court dismissed that lawsuit. The arboretum then asked the trial court to award attorney fees. Meanwhile, the owners appealed the dismissal, but the appellate court affirmed. The owners’ petition for leave to appeal to the Illinois Supreme Court was denied. The arboretum then asked for an award of its attorney fees incurred in defending the owners’ appeal.
The trial court awarded the arboretum its fees under Section 1988 [federal civil rights statute] for defending the appeal, but not for defending the case in the trial court. The owners then appealed the award of attorney fees.
Tina Hemminger died from cervical cancer. Her husband, Daniel, sued Tina’s doctors, lab technician, and the hospital where she was treated for medical malpractice in failing to diagnose Tina’s cancer.
Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit.
The trial court gave summary judgment to the three defendants, and made a finding under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the judgment). Within the 30-day deadline, Daniel asked the trial court to reconsider the summary judgment. His reconsideration request raised only the statute of limitations issue, and not the immunity question. The trial court denied Daniel’s request.
Courtney McNiff sued Mazda Motor of America under the Magnuson-Moss Warranty Act. After they settled the dispute, Courtney’s lawyers, who had a contingency fee agreement with Courtney, petitioned the court for an award of attorney fees. Based on the lawyers’ time reports, the trial court awarded fees that were in excess of the contingency fee. Mazda appealed. The appellate court affirmed the award, stating it was within the trial court’s discretion.
Courtney’s lawyers also requested fees for defending Mazda’s appeal. The Fourth District Illinois Appellate Court allowed the appellate fees. “‘Allowing a plaintiff to petition for appellate attorney fees and costs furthers the [Magnuson-Moss] Act’s goal of providing consumers with legal assistance to enable them to pursue a remedy for injury or loss.’ … Accordingly, we grant plaintiff’s request to file a supplemental petition in the trial court for attorney fees and costs incurred in responding to defendant’s direct appeal … The trial court may award any and all fees and costs reasonably incurred in defending this ‘simple’ case on appeal.”
Get the whole opinion, McNiff v. Mazda Motor of America, No. 4-08-0817 (7/18/08), by clicking here.
Illinois Appellate Lawyer Blog