The Illinois Minefield Known As Preservation of Error For Appeal—Midwest Mailing and Shipping Systems, Inc. v. Schoenberg, Finkel, Newman & Rosenberg, 2023 IL App (1st) 220562-U.
By Melinda S. Kollross
This recent Illinois Appellate decision in Midwest Mailing illustrates again the many pitfalls that can occur to those unfamiliar or untrained with preserving error for appeal in Illinois. Defense counsel here must have thought they had undertaken all efforts to preserve a trial error for appeal, which they claimed was the cornerstone of their case. But sadly, they were wrong.
Plaintiff filed a legal malpractice action, alleging that certain negligent legal advice given it by defendant caused it to resolve a dispute with another entity for much less than it could otherwise have gotten. The case went to trial and over objection, plaintiff was allowed to present a damages expert who testified that but for defendant’s negligent advice, the plaintiff could have gotten $2.73 million instead of $300,000. Defendant had moved in limine to bar this expert testimony and objected to it both before and after it was received. The jury awarded $700,000. Defendant then appealed from the judgment but, and this is crucial, defendant never filed a post-trial motion raising its objections about the expert testimony.
The Point Was Forfeited
Defendant’s sole issue on appeal was that the trial court abused its discretion by allowing expert testimony that was based on guess, speculation, and conjecture. But the Court found that defendant forfeited this point for review because defendant failed to raise this issue in a post-trial motion following the jury trial. The Court found that Illinois law was clear, by statute, Supreme Court rule and decisional law that to preserve any issue for appellate review after a jury verdict, the point had to be raised and ruled on in a properly filed post-trial motion. In the absence of such a motion here, defendant forfeited the sole point of error for this appeal.
The Court though did say that even if it were to overlook the forfeiture and consider the issue, any error in allowing the expert to testify was not prejudicial to defendant because the jury was obviously unpersuaded by the expert testimony that plaintiff could have gotten $2.73 million when it awarded just $700,000.
Learning Points: Make no mistake—the Court’s examination of the forfeited issue does not suggest that Illinois reviewing courts are willing to resolve issues that are not properly preserved by trial court objection and a properly made post-trial motion. In this author’s opinion, the Court resolved the forfeited issue to prevent the future litigation of another legal malpractice action against defendant’s attorney based on an error that would not have changed the outcome of the case.
This decision does make clear though that “one size does not fit all” when it comes to preservation of error. If this case had been jury tried in the federal system, the preservation problem would never have arisen because a timely objection at trial preserves an issue for review without a post-trial motion. But this case was jury tried in Illinois state court where preservation of issues for appeal requires not only that counsel object to error during trial but raise it again in a post-trial motion. I explain to my clients that all errors occurring during the trial proceedings from the initial filing of the complaint to return of the verdict must be raised in a post-trial motion to be preserved for appeal in Illinois. My practice is to prepare a global, comprehensive post-trial motion seeking judgment notwithstanding the verdict, new trial, new trial on damages alone and remittitur. Although this type of motion is imperative in Illinois jury trials, I have found it good practice to prepare such a motion in any jury case where time permits—even in the federal system. Had such a comprehensive motion been filed in Midwest Mailing, the forfeiture problem would never have occurred.