Illinois Supreme Court Confirms That Post-Trial And Appellate Litigation Is A Minefield That Should Only Be Navigated By Experienced Post-Trial And Appellate Lawyers
For over 25 years, my practice has focused primarily on post-trial and appellate litigation. I have seen the intricacies and “traps” presented by various state and federal rules on how to properly prosecute post-trial matters and preserve issues for appeal. I have accordingly counseled clients to utilize attorneys trained in post-trial and appellate litigation to handle such matters because of the minefield the practitioner must navigate to successfully prosecute/defend post-trial and appellate proceedings. The Illinois Supreme Court’s recent decision in Crim v. Dietrich, 2020 IL 124318 confirms this wisdom of only employing experienced post-trial and appellate attorneys to handle these litigation stages.
Plaintiffs filed a two-count medical malpractice action arising from injuries suffered by a baby during birth. One count alleged failure to obtain the mother’s informed consent to perform a natural birth versus Caesarean section, and the other count alleged negligence in delivering the child. The case went to trial on both counts. Defendant moved for and received a directed verdict on informed consent based upon the legal argument that plaintiffs failed to proffer expert testimony that a reasonable person would have acted differently had she been properly informed. The negligence count went to the jury with the jury finding in favor of defendant. Following the verdict, plaintiffs did not file any post-trial motions, but instead filed a timely appeal. Plaintiffs’ appeal was limited just to the informed consent issue. The Appellate Court (Crim I) reversed the informed consent directed verdict but did not address any other issues. The Appellate Court mandate reversed the order of the trial court and remanded the case back for such proceedings as required by the Appellate Court’s decision.
On remand, defendant moved to bar any reference during retrial to the negligence count contending that plaintiffs forfeited their right to retry this count because of their failure to file a post-trial motion directed to the jury’s original finding in defendant’s favor on negligence. Plaintiffs contended that they preserved their right for a new trial on all issues including negligence because they asked for a new trial in their notice of appeal and appellate brief. The trial court denied defendant’s motion but certified an order for immediate appeal on whether the appellate court’s decision required a new trial on all claims. On appeal again, the Appellate Court (Crim II) ruled that plaintiff was entitled to a new trial on all claims. The Illinois Supreme Court thereafter granted review.
On appeal, the Supreme Court held that the ruling in Crim I could not require a new trial on all issues including negligence because of plaintiffs’ failure to file a post-trial motion challenging the jury’s verdict on the negligence count as required by Section 1202 of the Illinois Code of Civil Procedure which sets forth “strict rules” for filing such motions in jury cases. In so holding, the Court rejected several of plaintiffs’ attempts to circumvent Section 1202’s penalty for failing to file a post-trial motion— the waiver of the right to apply for a new trial.
Plaintiffs first argued that since the court granted a directed verdict on informed consent, they were under no obligation to file a “futile and meaningless” post-trial motion on the remaining negligence claim. But the court ruled the only time such a post-trial motion is not required is when a trial court grants a directed verdict as to the “entire” case. A post-trial motion is still required in instances of partial directed verdicts.
Plaintiffs next argued that the informed consent claim and negligence claim were so “intertwined” that the directed verdict on informed consent “materially altered the tenor” of the remaining case and affected the jury’s verdict on the negligence count. But the Court found that the problem here was plaintiffs’ failure to file a timely post-trial motion in which plaintiffs could have argued that the trial court erred by letting the case go to the jury on negligence after directing a verdict on informed consent. Plaintiffs’ argument now was too late, according to the Court. Indeed, the Court found that plaintiffs’ argument highlighted exactly the reasons why a timely post-trial motion is necessary: to allow the trial court to address any such errors immediately, instead of years later.
Finally, the Court rejected plaintiffs’ contention that their notice of appeal and appellate brief preserved all issues for review. According to the Court, the adoption of plaintiffs’ argument would render meaningless the posttrial motion requirements of Section 1202, an outcome the Court stated it was “compelled to avoid”.
Learning Point: The Illinois Supreme Court’s decision again shows why trained and experienced post-trial and appellate counsel should be brought
into the case at the very latest when a verdict or judgment is rendered— to make sure all rights are being preserved. In this case, the plaintiffs would have been wise to have even added appellate counsel when the partial directed verdict was entered, to preserve all arguments about how the claims might be intertwined. But certainly, following verdict, it was necessary to bring on post-trial and appellate counsel to avoid the waiver plaintiffs faced here.