Articles Posted in Writing

Illinois has adopted public-domain citation for all cases filed on or after July 1, 2011. The Illinois Supreme Court has amended its Rule 6, which now also requires pinpoint citation to an assigned paragraph number. Your memorandum or brief may contain a citation to West’s North Eastern Reporter or Illinois Decisions, but those citations will be neither required nor alone sufficient. The official reporter — which we’re accustomed to citing as “Ill. 2d” or “Ill. App. 3d” — is going extinct for cases filed after July 1st.

So what’s a Westlaw researcher to do? A Westlaw telephone researcher reported the company is working on paginating in accord with the public domain versions. No word yet on when the new pagination will be available on Westlaw.

According to the revised Rule 6 comments, here’s how the new supreme court cite should look: People v. Doe, 2011 IL 10234. A pinpoint cite to an appellate court opinion should look like this: People v. Doe, 2011 IL App (1st) 101234, ¶ 15. The “1st” parenthetical refers to the First District Appellate Court, so newly filed appellate opinions will require reference to one of the five appellate court districts. (I wonder why. The Illinois appellate courts are a unified system. Each opinion, no matter which district issues it, should have equal precedential value.)

Good writing has a lot in common with pleasing music. That’s so for appellate briefs as much as novels. Good narration and argument stays with the reader, and makes the reader want more, just like a toe-tapping melody.

Bret Rappaport says your mind’s ear hears what you read. How do you use that thesis in your appellate briefs? Take a look at Rappaport’s article, “Using the Elements of Rhythm, Flow, and Tone to Create a More Effective and Persuasive Acoustic Experience in Legal Writing,” (Journal of Legal Writing Institute, Vol. 16, p. 65, 2010. Thanks to the (new) legal writer for the reference.

Changes to the official method of case citation in Illinois go into effect next month. The Illinois Supreme Court Rules will require the court docket number to be cited, and does away with citation to an official printed reporter. Official Illinois supreme court and appellate court opinions will be on the courts’ website. Here is the supreme court’s press release on the changes.

We continue with Part 2 of author and legal-writing expert Ross Guberman’s insights into drafting appellate briefs. In case you missed it, here’s Part 1. And here is a link to my review of Ross’s book, Point Made: How to Write Like the Nation’s Top Advocates.

What is the role of case law precedent in a well-written appellate brief?

Judge Posner suggests in his book How Judges Think that most litigators overestimate the importance of case law and underestimate the pragmatic advantage of making the court feel like it is doing the right thing, or at least that following the case law makes sense.

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.

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.

Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city.

The record citations in the fact section of the city’s appellate brief were placed at the end of each paragraph, rather than after each sentence. Charles asked the appellate court to strike the facts in the city’s brief and the arguments that relied on those facts. He argued that the city’s method of record citation violated Illinois Supreme Court Rule 341(h)(6), which requires an accurate and fully cited fact section.

The Fourth District Illinois Appellate Court denied Charles’s request and allowed the city’s brief to stand. The court explained:

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.

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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.