The Technicalities of Appellate Practice: Use of an Appellate Specialist During Every Stage of the Appellate Process is Crucial to the Successful Prosecution of Any Appeal
December, 2005
by Edward M. Kay and Melinda S. Kollross
Appellate practice is a misnomer -- it is not limited to just brief writing and oral argument, but involves much more.
The Clausen Miller Appellate Practice Group utilizes its appellate skills in a number of ways -- at dispositive brief writing pre-trial; at trial monitoring and assistance during trial; at post-trial motion preparation; and of course at appellate brief writing and oral argument presentation. Appellate brief writing and oral argument are important steps in the appellate process -- but they are not the only important steps. The steps leading to the brief writing and oral argument are just as crucial and must be undertaken by an appellate specialist because without these steps being fulfilled within the letter and spirit of the law, all may be lost by the time of the brief writing and oral argument stages.
A recent decision by the Illinois Appellate Court, Fourth District, sitting in Springfield, Illinois illustrates just how important these “pre-appeal” steps are and how disastrous it can be for the attorney or client who does not ensure these steps are fully and properly completed.
In McCarty v. Weatherford, 2005 WL 2994902 (Ill. App. 2005), plaintiffs appealed summary judgment granted to defendants claiming that issues of fact precluded the entry of summary judgment. Plaintiffs, however, did not ensure that a proper record was prepared by the court clerk containing the necessary materials that would have shown the existence of fact issues. Instead of presenting the appellate court with a full and properly prepared record, plaintiffs filed an incomplete record and tried to make up for this shortcoming by providing the appellate court with an appendix of additional materials with their briefs.
The court found that plaintiffs’ presentation of the record was inadequate. The court would not consider the appendix provided by plaintiffs, despite the fact that the appendix supported plaintiffs’ position that issues of fact precluded summary judgment. Further, the court would not excuse plaintiffs’ deficiencies because the clerk of the circuit court failed to file several documents that were before the trial court. The appellate court held that the clerk’s failure to do his job did not excuse plaintiffs’ burden in providing the appellate court with a sufficiently complete record on appeal. The appellate court concluded that although its decision might seem harsh, the prosecution of an appeal requires the necessary time and expense to ensure full compliance with all the rules:
We recognize that our refusal to consider the documents in the McCartys’ “appendix” or sua sponte supplement the record with those documents might seem to be a technical application of supreme court rules…. However, the decision to take an appeal is a serious one, and this court has the right to expect that parties (like the McCartys) who choose to do so will pursue their appeal with diligence and in accordance with supreme court rules. To assure that appeals proceed in an efficient and fair manner, our supreme court has set forth rules of appellate procedure, and it is incumbent upon parties to follow them.
Learning Point:
McCarty teaches that attorneys cannot “cut corners” in order to save expense in the prosecution of an appeal. Reviewing courts in Illinois and elsewhere expect that appeals will be prosecuted in a professional manner by parties having the necessary skill and experience to ensure that all steps are undertaken in full compliance with applicable court rules. Putting a record together may seem to some like a ministerial or paralegal-like task, but as the McCarty decision makes clear, it is one of the most crucial steps in the appellate process. The McCarty plaintiffs would have obtained a reversal of the summary judgments granted to defendants but for a properly prepared appellate record. The bottom line is that appeals cannot be done “on the cheap.”
The Appellate Practice Group at Clausen Miller assigns an appellate advocate in every case, be it the prosecution or the defense of an appeal, to ensure that all necessary steps are undertaken during these crucial “pre-appeal stages”, such as those involving the preparation of a record on appeal. Our appellate advocates take the necessary time to check that the clerk’s file matches the attorney’s trial file and where documents are missing, as they were in the McCarty appeal, our attorneys appear before the trial court to have those documents made part of the record; we also stay in constant communication with the clerk preparing the record. We undertake this expense to ensure that once the appeal reaches the brief writing and oral argument stages, we have the necessary weapons in the record to either overturn or sustain the judgment below -- unlike the situation in the McCarty appeal. We believe our clients expect no less. •
Back to CM Report of Recent Decisions (2005v4) 2005 Volume 4 Table of Contents
