THE APPEALS PROCESS
An Appeal is a legal means to correct prejudicial legal errors that occurred during the trial. An appeal, whether civil or criminal, is vastly different than a trial. In a trial, evidence is presented to a trier of fact – a judge in a bench trial or a jury in a jury trial. Witnesses testify at a trial and the trier of fact weighs their credibility. None of this happens on appeal.
In an appeal, the vast majority of appeals cases are litigated on paper with the filing of appellate briefs, the appellate record, appendix to the record, and any appellate motions that may need to be filed. Very rarely does an appellate case go to oral argument and when it does the oral argument is unlike any argument that is conducted in a trial court. Ultimately, an appeal is not a second trial but a legal means to correct prejudicial legal errors that occurred during the trial.
Federal Appeal or an Illinois State Appeal?
Generally, whether your appeal will be heard by a federal appeals court or the Illinois Appellate Court depends upon whether your trial was conducted in a federal district court or a circuit court located in an Illinois county.
The Untied States Court of Appeals is divided into 13 circuits. These courts review the decisions of the federal trial courts, which are known as district courts. Illinois falls under the jurisdiction of the United States Court of Appeals for the Seventh Circuit located at the Dirksen Federal Building in Chicago. The 7th Circuit also hears federal cases that originate from Indiana and Wisconsin. The Supreme Court of the United States reviews the decisions of the 7th Circuit and the other circuits. The U.S. Supreme Court also hears cases that involve the U.S. Constitution that are decided by state supreme courts like the Illinois Supreme Court.
The Illinois appellate courts are a unified court system that is divided into 5 Districts. Where the trial originated will determine which district will hear your appeal. The Illinois Supreme Court reviews cases decided by the Illinois Appellate Court. The Illinois appellate courts are located in the following locations:
- First District- Located in Chicago; hears cases that arise out of Cook County. The First District is further divided into 6 Divisions, each with 4 judges.
- Second District- Located in Elgin; hears cases arising in 13 counties in northern Illinois (Boone, Carroll, DeKalb, Du Page, Jo Daviess, Kane, Kendall, Lake, Lee, McHenry, Ogle, Stephenson, and Winnebago). Nine judges are assigned to the 2nd District.
- Third District- located in Ottawa; hears cases arising in 21 counties in central Illinois (Bureau, Fulton, Grundy, Hancock, Henderson, Henry, Iroquois, Kankakee, Knox, LaSalle, Marshall, McDonough, Mercer, Peoria, Putnam, Rock Island, Stark, Tazewell, Warren, Whiteside, and Will). The 3rd District has seven judges.
- Fourth District- located in Springfield; hears cases arising in 30 counties in central Illinois (Adams, Brown, Calhoun, Cass, Champaign, Clark, Coles, Cumberland, DeWitt, Douglas, Edgar, Ford, Greene, Jersey, Livingston, Logan, Macon, Macoupin, Mason, McLean, Menard, Morgan, Moultrie, Piatt, Pike, Sangamon, Schuyler, Scott, Vermillion, and Woodford). Seven judges are assigned to the 4th District has seven judges.
- Fifth District- located in Mt. Vernon; hears cases arising in 37 counties in southern Illinois (Alexander, Bond, Christian, Clay, Clinton, Crawford, Edwards, Effingham, Fayette, Franklin, Gallatin, Hamilton, Hardin, Jackson, Jasper, Jefferson, Johnson, Lawrence, Madison, Marion, Massac, Monroe, Montgomery, Perry, Pope, Pulaski, Randolph, Richland, St. Clair, Saline, Shelby, Union, Wabash, Washington, Wayne, White, and Williamson). The 5th District has seven judges.
Whether you are appealing to a federal court or a state court, the purpose of the appeal is virtually identical – fix and correct trial errors that were so prejudicial that denied you due process or rendered your trial unfair. Although the purposes of both appellate courts are similar, the procedural rules and the deadlines that govern an appeal are different in federal court than they are in state court. Additionally, federal appeals tend to be a much more complicated and longer process.
Notice of Appeal
The filing of a notice of appeal with the trial court is the first of many procedural steps in filing an appeal. Strict time limits apply to when the notice of appeal must be filed. The notice of appeal confers jurisdiction to the appellate courts and without it the appellate court cannot hear your case. If the deadline is missed then the right to appeal is lost forever unless the appellate court grants express permission allowing you to file a late notice of appeal. The time to file a notice of appeal begins once the trial court enters its final judgment.
A notice of appeal must include the case caption and it must identify the judgment being appealed and the relief you are seeking in the reviewing court. The notice of appeal must be signed. Once the notice of appeal is filed, the long process of actually filing the appeal begins.
After the notice of appeal is filed a docketing statement must be filed with the appellate court. The docketing statement must include the case caption. It must also identify whether the appeal is a cross-appeal or an appeal that deals with a child support issue. Additionally, the docketing statement must identify if any party is a corporation or association along with the identity of any affiliate, subsidiary, or parent group. The docketing statement must also include the full name and address of the parties on appeal and any appellate lawyers involved along with the name and contact information of the court reporting staff. Finally, the docketing statement must include a statement of the issues to be raised and argued on appeal. The docketing statement must also include a certification by the appellant (the person filing the appeal).
Record on Appeal
While preparing the notice of appeal and docketing statement the record on appeal must begin to be prepared. The record on appeal consists of the entire original common law record and the report of proceedings. The common law record includes every document filed in the trial court, every judgment and order entered by the judge, and any exhibits entered into evidence. Another major portion of the record on appeal is the report of proceedings. The main portion of the report of proceedings is the transcript of the trial testimony and the oral rulings made by the trial judge. A bystander report must be filed if a court reporter was not present during the trial recording the trial testimony. The record on appeal must also include the notice of appeal and the judgment that is being appealed. The record on appeal controls the appeals process because parties are allowed to only make arguments based upon what is contained in the appellate record. Moreover, the appellate courts will not reverse the trial court’s decision unless an error is contained in the record and it will presume that the trial court ruled correctly if an error is not contained within the record on appeal.
Stay of Judgment During Appeal
Every person contemplating an appeal questions whether the filing of an appeal stops the trial court’s judgment from being enforced. Criminal defendants want to know whether they need to start serving their prison sentence, family law litigants want to know when the terms of the divorce will take effect, and civil appeals clients want to know whether they need to pay or when they will be paid the judgment they won after trial. Ultimately, the answer depends upon what type of judgment is being appealed.
Illinois Supreme Court Rules distinguish between monetary awards and non-money judgments. Monetary judgments can be stayed if the trial court accepts an appeal bond. An appeal bond will be granted if it equals the judgment plus costs and interest. However, the trial court does have authority to lower the appeal bond amount if it deems that the full amount is not reasonably available to the person seeking an appeal. The appeal bond can be in the form of cash or another form of security, such as letters of credit, escrow agreements, or certificates of deposit.
Non-monetary judgments are treated completely different. Unlike monetary judgments where the trial court is directed by the Illinois Supreme Court Rules to grant appeal bonds on a reasonable basis, whether to grant an appeal bond on a non-money judgment is entirely within the discretion of the court. In these situations, the only requirement is that the other party has an opportunity to contest the appeal bond and that the appeal bond is granted with “just” terms.
The Appellate Brief
The single most important part of an appeal, whether a federal appeal or an appeal in state court, is the appellate brief. The briefing in an appeals case consists of three filings regardless if it is a criminal appeal or a civil appeal.
The first filing is the appellant’s opening brief. The opening brief is filed by the party seeking to appeal the trial court. The opening brief must provide a statement of the issues that are presented for review and a citation to the appropriate law that grants the appellate court jurisdiction over the case. The opening brief must also contain a fact section that succinctly states the procedural history of the case along with the facts adduced at trial. This fact section must cite to the record on appeal and it must not contain any arguments. The meat of the opening brief is the argument section, which details the issues that you want the reviewing court to consider. Relevant legal authority such as prior decisions made by the appellate court or the Supreme Court that are similar to your case must support all arguments made in the brief.
After the opening brief is filed, the next filing comes from the party defending the appeal known as the appellee. The appellee’s response is just that – a brief that responds to the arguments raised by the appellant in his opening brief. Essentially, the appellee’s response states all the reasons why the appellant is wrong, why the trial court’s ruling was legally correct, and why the trial court’s rulings should be upheld.
The final filing in the appeals process is the appellant’s reply. The reply brief is the appellant’s final chance to brief the appellate court on the issues on appeal. However, it is not meant to rehash the arguments already made but to reply to the appellee’s brief that warrant a formal response, usually, when the appellee misstates the facts or the law. New arguments or issues not raised in the opening brief are absolutely prohibited from being raised for the first-time in a reply brief.
Preparing an appellate brief whether for the appellant or an appellee is time-consuming endeavor that can be hundreds of hour’s worth of work. The record on appeal itself can be well over 10,000 pages and every page needs to be read and analyzed thoroughly for potential error, which means that the record usually needs to be read multiple times. Essentially, an appellate brief is a huge legal tome that can be well over 50 pages in length.
A web of procedural rules governs the filing of the appellate briefs. The briefs must conform to page lengths and they each have their own filing deadlines. The rules also cover very mundane issues such as page margins, the type of font that can be used, the spacing that is required, how the page numbering should be, and even the color of the paper used for the first page of the brief. Failure to comply with these rules can result in the reviewing court dismissing your appeal on procedural grounds because it failed to follow the appellate rules.
Thousands of appeals are filed each year in Illinois and only a select few are ever called for oral argument. The oral argument is in front of the three-judge panel that will be deciding your appeal. Unlike a closing argument at trial, which can greatly affect the outcome of the trial, the oral argument on appeal will certainly not be the determining factor in whether you are victorious in your appeal. Rather, the oral argument is short and it consists of the panel of judges asking the attorneys questions regarding the appeal. Most of the time answering the judges’ questions will take up the vast majority of the allotted time for the oral argument.
Appellate Court’s Ruling
At some point after the oral argument, the appellate court will issue its ruling. The ruling can come in 3 different forms. The appellate court can issue a full written opinion that is published and carries precedential value. Written opinions are reserved for cases that establish a new rule of law or cases that modify, explain or criticize an existing rule of law; or cases where the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate Court. In other words, written orders are published cases that create new law that can be cited as legal authority in future cases. Cases that do not qualify for a written opinion can be disposed by a written or summary order. Written or summary orders do not create new law and they are meant to only resolve the case before the court.
After the Court Rules
An unfavorable ruling by the appellate court can still be contested by the losing party. The losing party can file a petition for rehearing asking the appellate court to reconsider its decision arguing that the appellate court misapplied existing law or because of a change in the law that was not considered by the appellate court. If a petition for rehearing is denied the losing party can attempt to have the Supreme Court take the case. Supreme Court review is a subject of its own.
When is the good time to file an appeal?
Pursuing an appeal is an important decision that must be made immediately after losing in the trial court. On one hand, the only way to get the justice you deserve is by filing an appeal. However, an appeal can easily be the most expensive and time-consuming part of the litigation process. Furthermore, if you are successful on appeal the usual remedy that is granted by the appellate court is a new trial, which starts the litigation process anew.
At Jaleel Law P.C. we know the difficult decisions that you and your family are facing. Even clients of ours that have won at trial are still apprehensive and have questions as to why they now need to continue the fight even though they already won. We understand that regardless of your personal situation you have questions. Thankfully, we have answers and we are willing to answer your questions in a no obligation consultation. We will discuss with you the pros and cons of an appeal and we tell you what we would do if we were in your situation. If you have a good appealable case, appealing is something that you should definitely undertake; however, you should only take on the additional expense of an appeal if you have an appellate attorney who knows what he is doing fighting the appeal on your behalf.
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