Articles Posted in Appellate Practice

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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.”

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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?

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A police labor union wanted to be the exclusive representative of “all aviation security sergeants employed by the City of Chicago.” Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union’s petition. But the union was not completely satisfied because the Board ruled that the sergeants were not “peace officers,” a legal designation under the Illinois Labor Relations Act that affects the sergeants’ bargaining status.

Both Chicago and the union appealed ― Chicago to get the “exclusive representation” ruling reversed; the union to get the sergeants-are-not-peace-officers ruling reversed.

The First District Illinois Appellate Court affirmed the “exclusive representation” ruling, but dismissed the union’s “peace officer” appeal. The appellate court ruled that the union could not appeal because it won the right to be the exclusive representative, which is what it asked for in its petition. The union’s disagreement with some of the Board’s peripheral rulings was not a basis to appeal. Here is how the appellate court explained it:

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While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

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Wanda Boone died after her surgeon did not remove a cancerous tumor from her colon during a first surgery. The tumor was removed during a second surgery five days later. Wanda’s estate sued the surgeon, James Boffa, for medical malpractice, claiming Wanda died from the stress of the second surgery.

After trial, a jury found in favor of Dr. Boffa. The jury’s finding was a general verdict – i.e., the jury was not asked, and did not say, what defense theory it relied upon.

Dr. Boffa had two theories of defense. The First District Illinois Appellate Court rejected one of those theories — that there was another sole proximate cause for Wanda’s death — for lack of evidence. Wanda’s estate argued that the general verdict for Dr. Boffa therefore should be reversed.

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Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.

… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee’s brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee’s brief, or (3) it may reverse the trial court when the appellant’s brief demonstrates prima facie reversible error that is supported by the record …

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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.

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For a statistical comparison among the federal appellate courts of sanctions orders against attorneys, take a peek at the Fall 2008 edition of the Seventh Circuit Review. The analysis concludes: “The Seventh Circuit issued the fourth-most sanctions overall and issued the most serious sanctions. In the end, the data suggests that the Seventh Circuit may be ‘nitpicking’ to a certain degree, but that there are other circuits that are nearly as critical of attorneys.”

Here’s the whole article by Patrick Austermuehle, “Just a Bunch of Fusspots and Nitpickers? That Pretty Much Sums It Up,” 4 Seventh Cir. Rev. 34.

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Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

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Lots of appellate practitioners are solo or in small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That’s good for clients, and good for us.

I am always thinking about ways to increase the quality of my work product and push down costs. Lately I’ve been mulling over the idea of pooling resources with other appellate practitioners – staffing, electronic, digital, old-fashioned brainstorming with colleagues. Geography is not a limitation on the pooling concept; where you toil doesn’t matter. There is nothing insurmountable to prevent us from getting the best product and service, and the best pricing, from around the world to make our practices better and more cost efficient.

I’m interested in your thoughts. Call me (630-579-6460) or email (steve.merican@gmail.com) if you want to discuss this.

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