Illinois Appellate Lawyer Blog

June 14, 2011

Estate’s Prima Facie Evidence Defeats French Manufacturer’s Jurisdiction Dismissal

Michael Russell died in a helicopter crash. His estate sued SNFA, a French company that manufactured the part of the helicopter the estate claimed was defective and caused the crash. SNFA claimed the trial court did not have personal jurisdiction over the company, and so asked the court to dismiss the case.

The trial court agreed, and ruled the estate “failed to meet its burden of showing continuous and systematic presence in Illinois” and that the accident “did not arise out of an Illinois activity.” But the First District Illinois Appellate Court reversed and sent the case back to the trial court for a decision on the merits.

The appellate court discussed the proper standard of review of a decision to dismiss for lack of jurisdiction.

June 12, 2011

♪♪♪ Sing, Sing, Sing ♪♪♪

by Steven R. Merican

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.

June 2, 2011

Illinois Changes Official Case Citation System

by Steven R. Merican

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.

June 1, 2011

Part 2 Of Guberman Interview On Appellate-Brief Writing

by Steven R. Merican

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.

May 29, 2011

Condo Owner’s Interlocutory Appeal Dismissed For Incomplete Rule 304(a) Finding

by Steven R. Merican

Marc and Mary Simon bought a condominium from Palmolive Tower Condominium before Palmolive finished constructing the building. The Simons were unhappy with Palmolive’s performance, and refused to release the money being held in escrow for Palmolive. So Palmolive sued the Simons, and the Simons counterclaimed for breach of contract and fraud.

Palmolive asked the trial court for judgment on the pleadings on its own multi-count complaint, and to dismiss the Simons’s counterclaim. The trial court dismissed the counterclaims, and stated its order was “a final and appealable order there being no just reason to delay enforcement or appeal.” Later the trial court gave judgment on the pleadings in favor of Palmolive on the first of several counts of its complaint. The remaining counts of Palmolive’s complaint were left standing. The court’s judgment said it was “final and appealable.”

The Simons appealed from both orders. The parties agreed the appellate court had jurisdiction over the order giving Palmolive judgment on the pleadings. But the court thought otherwise and dismissed that part of the Simons’s appeal. Here’s why.

May 20, 2011

“Point Made” Author Regales About Appellate Brief Writing

by Steven R. Merican

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.

May 9, 2011

State’s Compliance With Mental Health Code A Public-Interest Exception To Mootness Doctrine

by Steven R. Merican

Nicholas L. had been living at the Elmhurst Memorial Hospital for about a month when the State of Illinois filed a petition to administer electroconvulsive therapy and psychotropic medication. The trial court heard testimony on the State’s petition, then ruled in favor of the State.

Nicholas appealed, arguing that the State did not comply with the Mental Health and Disabilities Code because it did not give Nicholas written notification of alternative treatments. The State first argued the appeal was moot because the trial court’s order allowing the State’s petition already had expired. Nicholas argued the appellate court should consider the case anyway because the public-interest exception to the mootness doctrine applied. Because the question in the case involved the State’s compliance with the Mental Health Code, the Second District Illinois Appellate Court agreed with Nicholas and heard the appeal. Here is the appellate court’s rationale.

[T]he question presented by respondent [Nicholas] involves the issue of statutory compliance and thus qualifies as a matter of a public nature. Moreover, the vast number of cases addressing the issue of compliance with section 2-102(a-5) [requiring the State to give the patient information about alternative treatments] … indicates both a need for an authoritative determination for the future guidance of public officers and the likelihood of future recurrence … We also confirm respondent’s assertion that no published opinion in our state has addressed the specific issue of failure to provide written notification solely of alternative treatment options. Accordingly, the public-interest exception is applicable to respondent’s contention regarding statutory compliance.

May 5, 2011

Failure To Object At Trial Dooms Appeal In Car-Cow Crash Case

by Steven R. Merican

Benjamin Juday’s pickup truck was damaged when it crashed into a cow owned by David Albers. The truck was insured by American Family Mutual Insurance. American Family, as subrogee of Juday [stood in Juday’s shoes], sued Albers under the Illinois Domestic Animals Running At Large Act to get compensation for the damage to the truck.

During the trial, American’s lawyer argued that Albers did not show he acted reasonably to restrain the cow. Albers argued just the opposite. A jury returned a verdict in favor of Albers. American Family asked the trial court for judgment notwithstanding the verdict. The trial court denied American’s request, so the insurer appealed.

In the appellate court, American Family argued that Albers could not argue he acted reasonably because (1) Albers’s reasonableness was an affirmative defense to American’s claim under the Animals Running At Large Act, and (2) Albers had not submitted a written affirmative defense.

April 23, 2011

Father Forfeits Appeal Of Negligence Dismissal For Failure To Reallege It In Amended Complaint

by Steven R. Merican

While warming up his son for a baseball game, Thomas Vilardo threw batting practice from behind a pitching screen provided by the Barrington Community School District. Vilardo’s son hit a pitch that Vilardo claimed went through a hole in the screen and hit him in the eye, causing injury.

Vilardo sued, claiming the School District was guilty of negligence and of willful and wanton conduct. The School District asked the trial court to dismiss Vilardo’s claims. The trial court dismissed Vilardo’s negligence claim because the School District was statutorily immune from a plain negligence claim.

The trial court dismissed the negligence count with prejudice (can’t re-plead it), and dismissed the willful and wanton claim without prejudice (can re-plead it). Vilardo filed an amended complaint that alleged only willful and wanton conduct against the School District. The amended complaint did not re-allege or refer to the plain negligence claim that had been dismissed.

April 19, 2011

Fewer Oral Arguments Heightens Importance Of Appellate Brief

by Steven R. Merican

Here is a letter to the editor I submitted to Illinois State Bar Journal with my observations about an article in the April 2011 edition that disapproves of the declining number of appellate oral arguments.

To the Editor:

“Surviving the Death of Oral Argument” (sorry, subscription required) is misnamed. The article doesn’t contain ideas for how lawyers should proceed in their appellate practice in view of an established trend by courts to dispense with oral argument. Instead, the article bemoans the reality of fewer oral arguments, and criticizes the trend because, the author states, without a public oral argument judges may not be fully engaged.