April 15, 2017 § Leave a comment
The judge thinks that because of the 1st Dist Appellate case Bowman which is a 2014 case the Rule below is no good.
METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation, or by testimony in the form of an opinion.
(b) Specific Instances of Conduct.
(1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct; and
(2) In criminal homicide or battery cases when the accused raises the theory of self-defense and there is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made of specific instances of the alleged victim’s prior violent conduct.
Adopted September 27, 2010, eff. January 1, 2011.
Judge has ruled that no opinion evidence regarding reputation is allowed only reputation in the community.
Cornell University Law SchoolSearch Cornell
Federal Rules of Evidence › ARTICLE IV. RELEVANCE AND ITS LIMITS
Rule 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
The rule deals only with allowable methods of proving character, not with the admissibility of character evidence, which is covered in Rule 404.
Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue. This treatment is, with respect to specific instances of conduct and reputation, conventional contemporary common law doctrine. McCormick §153.
In recognizing opinion as a means of proving character, the rule departs from usual contemporary practice in favor of that of an earlier day. See 7 Wigmore §1986, pointing out that the earlier practice permitted opinion and arguing strongly for evidence based on personal knowledge and belief as contrasted with “the secondhand, irresponsible product of multiplied guesses and gossip which we term ‘reputation’.” It seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise. Traditionally character has been regarded primarily in moral overtones of good and bad: chaste, peaceable, truthful, honest. Nevertheless, on occasion nonmoral considerations crop up, as in the case of the incompetent driver, and this seems bound to happen increasingly. If character is defined as the kind of person one is, then account must be taken of varying ways of arriving at the estimate. These may range from the opinion of the employer who has found the man honest to the opinion of the psychiatrist based upon examination and testing. No effective dividing line exists between character and mental capacity, and the latter traditionally has been provable by opinion.
According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony.
The express allowance of inquiry into specific instances of conduct on cross-examination in subdivision (a) and the express allowance of it as part of a case in chief when character is actually in issue in subdivision (b) contemplate that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. Similarly as to witnesses to the character of witnesses under Rule 608(b). Opinion testimony on direct in these situations ought in general to correspond to reputation testimony as now given, i.e., be confined to the nature and extent of observation and acquaintance upon which the opinion is based. See Rule 701.
Notes of Committee on the Judiciary, House Report No. 93–650
Rule 405(a) as submitted proposed to change existing law by allowing evidence of character in the form of opinion as well as reputation testimony. Fearing, among other reasons, that wholesale allowance of opinion testimony might tend to turn a trial into a swearing contest between conflicting character witnesses, the Committee decided to delete from this Rule, as well as from Rule 608(a) which involves a related problem, reference to opinion testimony.
Notes of Conference Committee, House Report No. 93–1597
The Senate makes two language changes in the nature of conforming amendments. The Conference adopts the Senate amendments.
Notes of Advisory Committee on Rules—1987 Amendment
The amendment is technical. No substantive change is intended.
Committee Notes on Rules—2011 Amendment
The language of Rule 405 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
April 15, 2017 § Leave a comment
Writing Better Appellate Briefs
Thanks for great info and insight walking through the mess they set up for us all.
Appellate justices will tell you over and over – most cases are won or lost on the
briefs. In today’s world of shorter and shorter oral arguments, we must present
the bulk of our argument in written format and cannot rely on an oral
presentation to convey our points. In fact, today most appellate courts view oral
argument as a conversation to discuss remaining questions with the case;
arguments are not a long recitation of facts and authorities or powerful analysis.
A. Governing Rules
The applicable rules for civil appeals are found in the 300–series rules; those
governing criminal appeals are found in the 600-series.
The rules of procedure concerning appellate briefs are not mere suggestions, and it is
within this court’s discretion to strike [a] brief for failing to comply with Supreme Court
Rule 341.” Crull v. Sriratana, 376 Ill. App. 3d 803, 812 (4th Dist. 2007).
The governing rules should be consulted before any appellate project.
B. The Importance of Planning
The following steps are recommended when beginning work on your brief,
regardless of whether you are the appellant or the appellee. Perhaps the most
important suggestion is to clear sufficient time for the brief. Most briefs take a
minimum of 30-40 hours to prepare, from notice of appeal to oral argument
What to Review?
• Review the case in full and thoroughly study the record on appeal.
o Order appealed from;
o Underlying motions;
o Transcripts and exhibits;
o Review prior research;
o Identify your issues;
o Confirm you have the correct standard of review.
• Update your research.
• Create an outline.
o What must I show to win?
o How do I show that?
o Anticipate problems, questions, your opponent, the court.
• Formulate a theme for the brief.
• Write it, and then edit, edit, edit.
C. The Importance of Editing and Not Simply Dictating the Brief
Editing is crucial to a good brief. Sufficient time should be allowed for many
revisions to the brief, including reads for typographical errors, grammar, and
condensing prose. Each sentence of the brief should be confronted with the
questions, “what does this add to my brief? Can I say this in fewer words?”
Matt Garner also testified at trial before Arbitrator Smithson (C. 77). Matt Garner
was the employer’s chief mechanic at that time (C. 77). He was working on the
day of the claimant’s accident (C. 78). He did not see the accident (C. 78). He did
hear the claimant tell his shift supervisor that he had cut his hand on the stamp
press (C. 79). He saw the cut on claimant’s hand (C. 79-80). The claimant’s shift
supervisor was Pollyanne McBride (C. 45, 80).
Matt Garner, the employer’s chief mechanic, testified that while he did not
witness the claimant’s accident, he overheard the claimant report the injury to
the shift supervisor, Pollyanne McBride, and he saw the claimant’s injured hand
You should also consider having the brief read by a secretary or paralegal.
Also, avoid dictating your brief, unless you plan to do heavy editing. We speak
differently than we write and it is usually readily apparent when counsel simply
dictates a brief and sends it to be bound. Your conversational tone should be
saved for the oral argument.
II. The Brief
A. Procedural Matters
There are various general requirements for an appellate brief set forth in
Supreme Court Rule 341.
1. Form of Brief
According to Rule 341(a), briefs must be double-spaced with 1-½ inch margins
on the left side and 1 inch margins on all other sides. The briefs must be securely
bound on the left side. Typeface must be 12-point or larger.
Rule 341(a) also expresses some preferences of the court. The Rule states that
lengthy quotations are not favored and footnotes are discouraged.
2. Length of Brief
The appellant’s brief is limited to 50 pages. Rule 341(b)(1). This limitation
excludes the cover, the statement of points and authorities, the certificate of
compliance, the certificate of service and those pages to be appended to the brief.
A motion to file a brief in excess of the page limitation is allowed, but not
favored. Rule 341(b)(2). If a motion is filed, it must be filed at least 10 days before
the brief is due and must state the number of excess pages requested and the
specific grounds for the necessity of additional pages.
3. Certificate of Compliance
Filed with the brief, an attorney must submit a signed certification that the brief
complies with the form and length requirements. Rule 341(c). This certificate
reads as follows:
I certify that this brief conforms to the requirements of Rules 341(a) and (b). The
length of this brief, excluding the pages containing the Rule 341(d) cover, the
Rule 341(h)(1) statement of points and authorizes, the Rule 341(c) certificate of
compliance, the certificate of service, and those matters to be appended to the
brief under Rule 342(a) is ____ pages.
Per Rule 341(d), the cover of the brief shall be white and include:
• The number of the case in the reviewing court and the name of that court;
• The name of the court from which the case was brought;
• The name of the case as it appeared in the lower tribunal (except that the
parties should now be referred to as plaintiff-appellant, etc.);
• The name of the trial judge entering the judgment; and
• The individual names and addresses of the attorneys (or unrepresented
5. Copies and Proof of Service
Nine copies of each brief shall be filed in the Appellate Court. Rule 341(e).
Twenty (20) copies shall be filed in the Supreme Court. Three (3) copies of the
brief shall be served upon each other party to the appeal. A proof of service must
be filed with all briefs.
6. References to Parties
In a brief, the parties should not be referenced as “appellant,” “appellee,”
“respondent,” or “petitioner.” Instead, the parties should be referenced as they
were in the trial court, or by descriptive terms such as “the injured person” or
In a juvenile case or a case involving mental health, the parties shall be referred
to by first name and last initial.
B. Substantive Thoughts
1. Nature of the Case
Supreme Court Rule 341(h)(2) requires an introductory paragraph stating the
nature of the action and of the judgment appealed from and whether the
judgment is based upon the verdict of a jury. The introductory paragraph must
also state whether any question is raised on the pleadings.
The “Nature of the Case” section should be limited to informing the appellate
court of what lies ahead in your brief. It should not be argumentative, but it can
suggest an answer. The section should inform the court generally of the type of
case before it, the specific claims asserted, and defenses, the nature of the action
which brought the case before the appellate court, and the court’s disposition of
This appeal challenges the circuit court’s order granting defendant Mitchell’s
motion for summary judgment against the plaintiff Anderson. Anderson was
struck by a car driven by Mitchell’s teenage son, but owned by Mitchell;
Anderson alleged that Mitchell was liable for his son’s actions based on negligent
entrustment. The circuit court granted summary judgment for Mitchell, finding
there that Anderson had presented no evidence that Mitchell knew the car had
been taken, no evidence that Mitchell gave permission to drive the car, and failed
to present any evidence that Mitchell had reason to believe that his son was an
inept or unqualified driver. Anderson now appeals to this Court.
The nature of the case section should be short, concise and should not be
2. Statement of Jurisdiction
a. Procedural Rules
When appealing to the Supreme Court directly from the trial court or as a matter
of right from the Appellate Court, there must be a brief statement of the
jurisdiction grounds for the appeal under the heading “Jurisdiction.” Rule
Rule 341(h)(4) also provides that when a case is appealed to the Appellate Court
there shall be a “Jurisdiction” heading. Under this heading, the appellant shall
give a brief statement for the basis for appeal including:
• The supreme court rule or other law which confers jurisdiction
upon the reviewing court;
• The facts of the case which bring it within this rule or other law;
• The date that the order being appealed was entered;
• Any other facts which are necessary to demonstrate the appeal is
• In an appeal from a judgment to all claims and parties, a
demonstration of the disposition of all claims and all parties.
All facts recited in this statement must be supported by page references to the
record on appeal.
b. Substantive Thoughts
This section should be short and inform the appellate court of the jurisdictional
basis for the appeal. You should reference the date of the order appealed from,
state that the order was final and disposed of all issues in the case, and include
the date of any applicable motion to reconsider and the order disposing of that
motion. The notice of appeal should also be referenced by date.
If there is a jurisdictional issue, you can mention that deficiency in your
statement of jurisdiction, and should consider filing a separate motion to dismiss
the appeal and then include an argument on that basis in the brief, if there is
insufficient time for the appellate court to rule or if the court takes the motion
with the case.
If you are an appellant and are concerned with a jurisdictional issue, you can file
a motion to clarify jurisdiction to get the court’s attention early in the case.
Appellate jurisdiction is proper under Supreme Court Rules 301 and 303
following the circuit court’s final order entered on July 10, 2011 (C. 9; A-4). In
that order, the circuit court granted defendant Mitchell’s motion for summary
judgment, disposing of both counts of plaintiff Anderson’s complaint (C. 9-14; A-
4-9). Anderson filed his notice of appeal on July 16, 2011 (C. 18; A-2).
If there are multiple parties, be sure to indicate how claims as to each party have
been resolved so as not to create a question of whether your order is final and
3. Statement of Issues
A statement of the issues presented for reviewed, without detail or citation of
authorities, is required by Rule 341(h)(3).
Avoid simply stating, “Whether the trial court erred,” or “Whether the trial
judge abused his discretion by refusing to admit evidence.”
Issues should be used as a tool to help you persuade the appellate court that you
are correct. They should identify the exact issue before the court and suggest the
answer you desire.
Also, you are not wedded to using “whether” to commence each issue presented.
Consider the following “deep” issues:
Did the circuit court judge abuse his discretion by denying the defendants’ forum
non conveniens motion based on the presence in St. Claire County of one
occurrence witness, when the plaintiff, a resident of Nebraska, was injured in
Nebraska, received his medical treatment in Iowa, and all other witnesses to the
accident were located in either Iowa or Central Nebraska?
Can a circuit judge properly admit medical testimony from a physician
concerning the victim’s recent and pre-attack diagnosis of advanced syphilis,
where that testimony would reasonably demonstrate that her condition would
have been passed to the defendant had he truly committed the alleged sexual
Is the jury’s verdict finding the defendant not guilty against the manifest weight
of the evidence where there was no claim of comparative negligence made
against the plaintiff and the defendant admitted on the stand that he entered the
intersection against a red light?
It is also acceptable to use issues with multiple statements.
Taking the time to craft an informative issue statement can help you formulate
your argument and also persuade the court that you should prevail.
4. The Standard of Review
Rule 341(h)(3) requires a concise statement of the applicable standard of review
for each issue, with citation to authority. This statement shall be located either in
the discussion of the issue in the argument or under a separate heading before
the discussion in the argument.
1. What is a standard of review?
The standard of review refers to the level of deference a reviewing court affords
the determinations of the circuit court. The standard of review varies depending
on the type of decision made at the lower level (e.g., motion to dismiss, summary
judgment, verdict) and the nature of the issue from which an appeal is sought
(fact, discretionary, legal).
It is imperative to understand the standard of review that will be applied by the
appellate court, because the standard of review almost always determines the
outcome. An excellent reference on applicable standards of review for specific
scenarios is Hugh Griffin and Hugh S. Balsam, The Standard of Review in Civil
Cases in Illinois: More Than Meets the Eye, 15 APP.L.REV. 1 (Winter 2002 – 2003).
2. What are the standards?
The standard of review can be set forth in a separate section of the brief. If
multiple issues are presented, the applicable standard of review must be stated
for each issue raised.
Under the de novo standard of review, the appellate court grants no deference to
a trial court’s determination and instead it conducts an independent review of
the issue on appeal. In re Marriage of Abrell, 236 Ill. 2d 249, 255 (2010).
The de novo standard of review typically is applied whenever an issue is
adjudicated short of trial on issues that are purely legal in nature or that do not
involve a weighing or adjudication of evidence. For example, an appellate court
applies a de novo standard of review to trial court orders that grant a motion to
dismiss or a motion for summary judgment. Wright v. Pucinski, 352 Ill. App. 3d
769 (1st Dist. 2004).
Although the issue involves the retroactivity of child support, the trial court’s
decision was predicated on its finding that it had no authority to make the
modification of child support retroactive prior to May 2007. This is a question of
law, and therefore, we apply a de novo standard of review. In re Marriage of Streur,
2011 IL APP (1st) 082326, ¶ 13.
Abuse of Discretion
Appellate courts review discretionary findings under an abuse of discretion
standard. Abuse can be found only if a court acted arbitrarily without the
employment of conscientious judgment or exceeded the bounds of reason and
ignored recognized principles of law. Zurich Ins. Co. v. Raymark Industries, Inc.,
213 Ill. App. 3d 591 (1st Dist. 1991). The test is often stated as no reasonable trier
of fact would have reached the conclusion reached below. At least one court has
noted out the need for a fact-finder to make specific findings of fact so as to
enable the appellate court to determine whether there existed an “informed
basis” for the circuit court’s ruling. See, e.g., McGrath v. Botsford, 405 Ill. App. 3d
781 (2d Dist. 2010).
The abuse of discretion standard is applied to types of judgments that the circuit
court is deemed to have considerable latitude in deciding, e.g., leave to amend or
file pleadings, admission of evidence, and compliance with deadlines. See In re
Marriage of D.T.W. and S.L.W., 2011 IL APP (1st) 111225, ¶ 107 (a circuit court’s
ruling granting an amendment to a petition for removal is reviewed for an abuse
The trial court is vested with broad discretion in determining matters of
visitation, and we will not disturb a trial court’s decision as to visitation unless
the trial court abuses its discretion, or where a manifest injustice has been done
to the children or the parent. In re Marriage of Diehl, 221 Ill. App. 3d 410, 429 (2d
A trial court’s decision regarding retroactivity of child support is usually
reviewed under an abuse of discretion standard. In re Marriage of Eberhardt, 387
Ill. App. 3d 226, 233 (1st Dist. 2008).
The allowance of attorney fees and the amount awarded are matters within the
sound discretion of the circuit court and will not be reversed on appeal absent an
abuse of discretion. In re Marriage of Streur, 2011 IL APP (1st) 082326.
Although the issue involves the retroactivity of child support, an issue usually
reviewed under an abuse of discretion standard, the trial court’s decision was
predicated on its finding that it had no authority to make the modification of
child support retroactive prior to May 2007. This is a question of law, and
therefore, we apply a de novo standard of review. In re Marriage of Streur, 2011 IL
APP (1st) 082326, ¶ 13.
A reviewing court will not disturb the circuit court’s decision to enter a
bifurcated judgment of dissolution of marriage absent an abuse of discretion. In
re Marriage of Wade, 408 Ill. App. 3d 775, 778 (1st Dist. 2011).
Manifest Weight of the Evidence
This standard applies to findings of fact, which includes credibility and
evaluating conflicting evidence. The manifest weight standard asks whether an
opposite result is clearly apparent or when the trial court’s findings are
unreasonable, arbitrary or not based on the evidence. In re Custody of K.P.L., 304
Ill. App. 3d 481, 488 (3d Dist. 1999). The trier of fact is given considerable
deference under this standard and a reviewing court will not reverse simply
because it would have reached a different conclusion or because an alternative
inference might be possible.
A trial court’s determination of what is in the best interests of the children will
not be reversed unless it is clearly against the manifest weight of the evidence
and it appears that a manifest injustice has occurred. In re Marriage of
Collingbourne, 204 Ill. 2d 498, 521 (2003).
For briefs filed in the Third District, the standard of review must be included
with each issue in the argument section. Local Administrative Rule 48.
The standard of review can be stated as follows:
This issue involves whether jury’s verdict is against the manifest weight of the
evidence. A decision is against the manifest weight of the evidence where an
opposite result is clearly apparent. In re Marriage of Demaret, 2012 IL APP (1st)
111916, ¶ 43. On questions of fact, this Court should affirm where there is some
evidence to support the jury’s determination; this Court may not substitute its
decision simply because a different conclusion could be reached.
Outside the Third District, the standards of review can be stated in one
preliminary section so long as the appropriate standard is related to each issue.
5. Statement of the Facts
Rule 341(b)(6) provides that the Statement of Facts be stated “accurately and
fairly and without argument or comment, and with appropriate reference to the
pages of the record on appeal … .”
There are several considerations when preparing your statement of facts. First
and foremost, we want to be non-argumentative. Second, while we want to
present all of the facts necessary to help the court decide our case, we also need
to be mindful of leaving out those facts which do not add any useful information.
An example is the lawyer’s tendency to want to describe every filing by date and
full title. Consider the following two examples:
On July 3, 1999, the plaintiff, Anna Kendrick, by and through her
attorney, Lofton Sinclair, filed her complaint for damages against
the defendant, Dale Burton, in the Circuit Court of Madison
County, Illinois, seeking to recover for negligence arising out of an
automobile accident that occurred at 7:15 a.m. on July 2, 1997, at the
intersection of Illinois Route 4 and Cobbler Road (C. 1, 2). At the
time of the collision, Kendrick was traveling southeast on Illinois 4
in a blue Oldsmobile (C. 3). Burton was driving in a westerly
direction in a white Ford F 150 pickup truck (C. 4).
On July 29, 1999, the defendant filed a section 2-615 motion to
dismiss the complaint, which was granted by the circuit court,
Judge John Carter presiding, on August 27, 1999 (C. 22, 30). Leave
was given to replead (C. 31). The plaintiff filed a first amended
complaint on September 15, 1999, to which the defendant filed a
section 2-619 motion to dismiss on October 1, 1999, this time raising
the two year statute of limitations (C. 35, 41). The circuit court
granted the motion on November 10, 1999, following a hearing on
that motion held October 25, 1999 (C. 50; R. 1, 17).
The plaintiff, Anna Kendrick, filed a complaint against the
defendant, Dale Burton, alleging negligence arising out of a July 2,
1997 automobile accident (C. 1, 2). Following the court’s dismissal
of the complaint for failure to state a cause of action, the plaintiff
amended her complaint; the defendant filed a section 2-619 motion
to dismiss, this time raising the two year statute of limitations (C.
35, 41). The circuit court granted the motion on November 10, 1999
(C. 50; R. 1, 17).
Another significant consideration is how to script the statement of facts. While
striving to tell a story, we have the option of telling the story in chronological
order, incident facts versus procedural facts, or issue-related. We should avoid
presenting trial testimony in a witness by witness fashion; it is hard to follow.
Consider this example of a narrative from a defendant’s brief combining the
observations of a second witness with the plaintiff’s:
While Marshall said the traffic light was yellow as she entered the intersection
(C. 256), John Simpson, who was traveling in the car immediately behind her,
said the light had already turned red and that he had already began to slow his
vehicle when Marshall entered the intersection (C. 412-415). Simpson, an
accident reconstruction expert who was on his way to a deposition, said he had
paid close attention to Marshall’s car because he had noticed her tail lights were
not functioning (C. 420).
This statement tells us what the plaintiff Marshall claims, then offers evidence to
refute that statement and further offers evidence of his credibility.
As appellee, we want to offer a supplemental statement of facts in most cases.
Remember, while we want to present a non-argumentative statement of facts, we
nevertheless want to present the statement in a light most favorable to our
position. This means we will rarely accept the statement of facts offered by our
Some claim the best approach to writing a brief is to write the argument first;
however, a command of the facts is essential to fully understanding your case.
Thus, it may be best to draft the statement of facts first, then daft the argument.
General TIPS for the Statement of Fact
• Avoid telling the whole story from beginning to end. Rarely is that an
• Where possible, break the facts into those necessary to show how the
controversy arose and those telling the procedural history of the case,
including trial testimony of experts.
• Use subheadings.
• Be candid and tell both favorable and unfavorable facts.
• Support all fact references with citations to the record.
• Avoid repetition – in fact intensive cases, summarize the facts in the
statement of facts and then draw these out in detail during the argument,
or vice versa.
a. Procedural Rules
Rule 341(h)(7) provides that the argument shall contain the contentions of the
appellant and the reasons therefore, and must contain citation of the authorities
and the pages of the record that are relied on. It is important to note that citation
to numerous authorities in support of the same point is not favored. Also, points
not argued are waived and shall not be raised in the reply brief, oral argument or
petition for rehearing.
b. Substantive Thoughts
The argument section is where we address each of the issues in detail and show
how we reached the conclusions supporting our desired relief. The best approach
is to prepare an outline and then supplement and expand that document with
your supporting points and authorities. This outline can then be used to prepare
the overall argument. By using this approach you can better see how the
argument comes together and identify potential holes in your logic.
Also, appellate brief arguments should not resemble a law journal article. While
a law journal article may include a detailed historical background or provide a
thorough discussion of the development of the law, this is rarely productive in
an appellate brief. In most instances, reference to a few governing principles will
suffice as will a single citation to a seminal case rather than a string of cites.
Likewise, an appellate brief need not always include a laundry list of broad,
neutral principles of law.
General Comments on the Argument Section:
• Lead with conclusions.
• Use headings and sub-headings.
• Keep your paragraphs short.
• Both show and tell the court what you are saying.
• Remember to cite case or statutory authority – you do not want waiver.
• Limit quotations.
• Be concise in your arguments.
• Spelling, tense, grammar, syntax.
• Avoid legalese.
An argument should ideally be organized to present the strongest argument first,
followed by one of two other points. If several issues relate to the admission of
evidence, those can be grouped together under one general issue and then
addressed individually with sub-issues.
One area that occasionally appears and presents a problem is that of a strong
damages argument mated with a weak liability argument. Logically, we should
address liability first and then address damages. At times we can continue with
the logical presentation in our brief and change our emphasis or focus at oral
Typical Criticisms of Briefs
• Briefs are too long.
• Counsel raises too many issues.
• Argumentative statements of facts.
• No organization or lack of focus.
• Misrepresentation of the record or the cited case law.
• Failing to address negative facts or significant cases cited.
• Failure to abide by court rules.
• Typos, misspellings, and grammar errors.
• Refusal to reference or apply the standard of review.
• Personal attacks against counsel or the trial court.
• Failure to cite the record or case authority.
7. The Conclusion
A conclusion is required by Rule 341(h)(8).
The conclusion should simply ask the Court for the desired relief. The conclusion
should ask for both primary and alternative relief, whether that relief be a new
trial, a new trial on damages only, or affirmance of the circuit court’s order of
dismissal or summary judgment.
Use of Summaries
Summaries are not required but are strongly recommended in either complex or
long briefs. A tight introductory summary helps direct the court where you are
going and a good ending summary ties all of your points together so that the
court can leave your brief with a good understanding of your points.
III. The Appendix
Supreme Court Rule 342(a) states that the appendix shall include the order
appealed from, the notice of appeal, and, if the appellant’s brief, the index to the
record on appeal.
However, the appendix should also include any documents that are significant in
your appeal. These additional materials may include jury instructions or special
interrogatories, verdict forms, a transcript of an offer of proof, a key photograph
or chart, or a pleading demonstrating that you did not waive an issue.
Remember, there is only one record on appeal; but there can be anywhere from
three to five to seven members of the court reviewing your brief. Including all
significant documents in the appendix ensures that these documents are with the
brief and available to the justice to review wherever the brief is reviewed.
A. Record Citations
Record citations should be offered for each fact referenced, whether in the
statement of facts or argument section of the brief. Citations should be listed as
Common law record citations (C. __).
Transcript of Proceedings citations (R. __)
Because the circuit clerks often get creative when preparing the record on appeal,
these are general guidelines and not hard and fast rules.
TIPS for Record Citation
• Indicate in a footnote any unusual citation system employed by the circuit
• If there are many volumes, consider indicating the volume number with
the “C” number as follows: (Vol. I, C. 12; Vol. 6, C. 1498).
• Some transcripts will be given volume numbers based on the individual
transcripts, so there may be multiple “R” citations; for these records, a
volume reference is a must: (Vol. 2, R. 27).
Key documents included in your appendix (discussed later) should be cited with
the record citation as follows: (C. 77; A-14). This lets the appellate court know
that the document is contained in the brief appendix.
B. Case Citations
Case citations should follow the blue book and, for cases as of July 1, 2011,
follow the new Supreme Court citation system.
TIPS for Case Citations
• Omit references to Illinois decisions.
• Use pin-point citations to specific pages (Illinois reporters) or paragraphs
• Use short cites; repeat full citation or at least first page of citation if you
get too far from original citation. Murphy, 398 Ill. App. 3d 10, 18.
• Always include reference in the citation form to the applicable appellate
• You cannot cite to Rule 23 orders.
• Try to cite to controlling case; where possible cite to an Illinois Supreme
Court case, followed by the controlling or leading case from your
• Avoid string cites.
• Consider using parentheticals, but do not use them to argument
V. Motions Affecting the Brief
A. Motion to Enlarge Page Limitation
Page limitations should be strictly adhered to and motions to enlarge the number
of pages should be used sparingly. A motion to enlarge page limitations can also
be limited to the statement of facts; the Third District has a 15-page limitation on
the fact section.
B. Motion for Extension of Time to File Brief
Motions for extension of time are governed by Supreme Court Rule 361(f) as well
as local rules applicable to each district. Motions asking for additional time
should explain why the added time is needed and should be supported by an
affidavit of counsel. It is also best to ask opposing counsel for consent and then to
label the motion as “agreed.” The Second District has extremely precise
requirements which are spelled out in Local Rule 103. Most districts will grant at
least one extension of 30 days as a matter of course.
At times, a motion for stay of the briefing schedule may be the more advisable
approach. Appropriate situations may include those where counsel has reached a
tentative settlement and is awaiting some additional finding or documentation
necessary to finalize the settlement. In that case, the parties should ask for the
stay and then agree to provide the court with a status letter every 30 days on
VI. Appellee Briefs and Reply Briefs
A. Appellee Briefs
The appellee’s brief is also limited to 50 pages, subject to the same rules as the
appellant’s brief per Rule 341(b)(1). The cover of an appellee brief must be light
blue as stated in Rule 341(d).
The appellee’s brief requires fewer sections than an appellant’s brief. According
to Rule 341(i), the appellee’s brief must include argument; the statement of facts
and other sections found in the appellant’s brief are optional and should be
referenced only where there is error or misstatement in the appellant’s brief.
However, that being said, most appellees should include their own supplemental
statement of facts, setting forth the facts it deems appropriate and most favorable
to its position.
Strategically, the appellee’s brief seeks not to point out error but rather to uphold
and support the circuit court’s decision. If the issues before the appellate court
are fact issues and subject to the manifest weight of the evidence standard, your
appellee brief should point out to the court how the standard requires
affirmance. In other words, the appellee should point out those evidentiary facts
supporting the fact finder’s determinations. It may not be necessary to address
all of the appellant’s points in great detail. Where the issues are discretionary, the
goal of the appellee is to show that the trial judge did not abuse his or her
Other Goals of the Appellee Brief
• Correcting a misstated issue.
• Correcting a standard of review.
• Correcting factual misstatements.
• Demonstrating the argument is flawed.
• Pointing out waiver.
B. Reply Briefs
Reply briefs are optional, but generally recommended. Per Rule 341(b)(1), a reply
brief is limited to 20 pages. The cover of a reply brief must be light yellow per
Rule 341(d). This brief should be confined to a direct rebuttal of the appellee
brief. New arguments or issues may not be raised. Arguments raised for the first
time in a reply brief are considered waived. See Illinois Health Maintenance
Organization Guar. Ass’n. v. Department of Ins., 372 Ill. App. 3d 24, 45 (1st Dist.
The reply also should not be a regurgitation of the appellant’s brief. Rather, it
should point out how the appellee’s argument is wrong or weak, where the
appellee misstated facts, and should try to return the court’s attention to the
VII. Other Briefs.
Where a party files a petition for leave to appeal and that petition is allowed, the
party filing the petition, as well as the answer thereto is usually best to file a new
brief and not stand on the petition, as the rules permit. The focus of the
discretionary petition, which seeks to gain the court’s interest in taking the case,
is different from that of the main brief, which seeks to convince the court to
change the ruling below.
Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and
Appellate Courts, Oxford University Press, 2d edition, 2004.
Bryan A. Garner, Legal Writing in Plain English, University of Chicago Press, 2001.
The apperance Rule 23 states way to destroy your case? A constitutional right to prove your case destroyed?
March 1, 2017 § Leave a comment
At times you will see a letter following the court-assigned identifier number. The letter U indicates that the opinion is unpublished per Supreme Court Rule 23. The letter B indicates that the opinion is the second opinion filed under the same docket number. If there is a third opinion filed under the same docket number, you will see the letter C. This pattern will continue for any additional opinions filed under the same docket number. Finally, if the opinion was issued from the Workers’ Compensation Commission Division, the letters “WC” will follow the identifier number.
A complete public-domain citation will include the following information, in order: (1) the case name, (2) the year, (3) the court abbreviation, (4) the identifier number, and (5) the pinpoint cite to the paragraph number. To demonstrate all of this, let’s look at a few examples:
• Supreme Court: People v. Leach, 2012 IL 111534, ¶ 5.
• Appellate Court: People v. Cobian, 2012 IL App (1st) 980535, ¶¶ 19-21.
• Unpublished: People v. Cooper, 2012 IL App (1st) 102545-U, ¶ 50 (unpublished order under Supreme Court Rule 23).
2. Illinois Supreme Court Rule 23
Illinois Supreme Court Rule 23 addresses what are commonly called “unpublished opinions.” The citation format you should use when citing to unpublished opinions is addressed in the Manual, discussed in the next section. But, attorneys should realize that Rule 23 prohibits attorneys from citing to unpublished opinions unless you do so “to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case,” or to provide the reader with a fuller understanding of the history of a case. Thus, the Illinois Supreme Court Rules prohibit attorneys from citing to unpublished opinions in most situations.
Rule 23 in Il. the states way to crush anything you have done to prove your record to just destroy anything you put on the record moving forward to have any records they are sealed and can’t be used in any lea gel proceeding moving forward .
February 18, 2017 § Leave a comment
Court denies Madigan petition to stop state worker pay
Lisa Madigan lost the first round in her quest to stop state worker pay during Illinois’ budget impasse.
An alternative to tax hikes
A plan to balance the state’s budget without tax hikes.
Rauner’s budget needs more spending reforms
The governor should reject tax hikes and push for the structural spending reforms Illinois needs to fix its fiscal crisis and improve its economy.
Illinois has higher property taxes than every state with no income tax
Despite taxing both sales and income, Illinois has higher property taxes than every single state that does not charge an income tax.
February 1, 2017 § Leave a comment
THIS IS VETTED! PLEASE share! (See comments for link)
URGENT CALL TO ACTION: Virginia Legislation
Senator Richard H. Black recently introduced SB1592 seeking to restrict the jurisdiction of Virginia’s juvenile and domestic relations courts. In short, the bill strips the courts of jurisdiction over juveniles not lawfully present in the United States. If passed, this bill will essentially eliminate all Special Immigration Juvenile cases in Virginia.
This bill is presently in the Senate Courts of Justice Committee and is likely to be heard on Wednesday, February 1st. As of Friday the bill was not scheduled to be heard in today’s Committee session.
We urge all AILA members to take the following steps:
Contact your representatives to express the devastating effect this bill will have on children and families.
Contact the Committee members (a chart listing the Committee members is below);
Reach out to others in the immigrant community; and
Attend the Committee meeting on Wednesday.
We know that not everyone will be able to attend the Committee Meeting, but at a minimum everyone can take 5 minutes to contact their representatives and the Committee members.
In addition to the SB1592, there are two other problematic bills pending.
HB2001 Requires the governing board and each employee of each public institution of higher education to cooperate in the enforcement of federal law by U.S. Customs and Immigration Enforcement on the institution’s campus, in any noncampus building or property, and on public property, as such terms are defined in relevant state law.
HB2004Requires the annual executive summary submitted by the governing board of each public institution of higher education to the General Assembly and the Governor to indicate the number of undergraduate students enrolled full time who are not citizens of the United States and the number of such students who receive annual financial assistance to attend such institution in an amount greater than 25 percent of the total annual cost of full-time undergraduate Virginia student tuition and room and board.
Members of Senate Courts of Justice Committee:
SENATE COURTS OF JUSTICE COMMITTEE
Mark Obenshain (Chair)
Benton “Ben” Chafin
How many times does the child’s constitutional get violated to have parents is directly related to attorneys and judges ?
November 18, 2016 § Leave a comment
If there was no litigation the appearance the scumbags wouldn’t get extortion monies out of the noncustodial parent is just unjust and business as usual in ILLINOIS.
August 29, 2016 § Leave a comment
BY GERI PFEIFFER
Who is this person? Is this employee of a state agency that just knocked on your door a civil servant in the traditional sense? Comparable to what? A judge? An attorney? A police officer? A Doctor?
The caseworker at your door, insisting upon seeing your children, without a warrant, is getting ready to make your life a living, breathing hell. For at least the next two years. And at the end of it, there is a 85% chance you will walk away without your children, financially bankrupt, emotionally destroyed, suffering from PTSD and clinical depression, with homicidal tendencies towards that piece of crap caseworker that knocked on your front door, just two years ago. I’ve said it before, I’ll say it again, and I’m going to keep saying it…..THAT CASEWORKER IS NOT YOUR FRIEND!
That person is being paid through your tax dollars to take your child away from you forever. That’s right! Your very own government has used the taxes you paid all your life to create and build a fool proof way to confiscate children for forced adoption. All that garbage we were taught about civil rights, democracy, justice in the American court system, and social services being an agency that protects children was designed with careful forethought and planning to turn us into the docile creature that opened the door and let a human trafficker in and basically gave them permission to steal your children.
How did that happen? You were taught to trust those in authority over a very long period of time. It started in kindergarten and culminated in your high school civics classes. So how could that government employee be at your door to harm your family? Because over the last 50 years or so an elite sector of America has decided its a good idea to clean up the welfare roles and eliminate undesirable citizens from the ranks of “acceptable” society! Who are these elite? Why your elected officials of course! It is well past time to do something about the confiscation of America’s children.
We must join in active resistance to this tyranny and start dealing with these slime balls who are coming in the front door of our homes, with no warrant in most cases, to steal YOUR children. They are paid out of your tax dollars. In many states they are not even required to have a degree and of the states that do require a degree that degree can be in anything. The caseworker is making life decisions about your family and their degree could be in basket weaving or agriculture.
This person may be an addict, alcoholic or predisposed to certain psychological illnesses. The caseworker may have had interactions with law enforcement, but because of the hiring practices of child protection agencies, that information is never revealed to you.
This person is making decisions about your family based on a pre conceived program of forced removal with the actual goal being adoption to strangers because that’s where the money is. You know…. the blank check funding provided to these agencies thru the Adoption And Safe Families Act of 1997(federal adoption incentives) that is their job security and paycheck.
That’s why you cannot believe one word that comes out of their mouth, do not believe their stated purpose, KNOW that they are confiscating your children to get a paycheck. period!
The service plan is a distraction to keep you occupied. To keep your attention diverted from the true goal of CPS which is to place your children into forced adoption because YOU have been found unacceptable by your government.
DO NOT SIGN ANYTHING!
When you sign the service plan, you have just handed your children over to the federal government through a state agency. What is happening to the American family that is targeted as unacceptable is exactly comparable to the relocation camps of WW2. You need to fight that caseworker and everything that caseworker is requesting of you like you are fighting a deadly enemy. Because that is exactly what they are. Agents of a social cleansing process put in place with your federal tax dollars to get rid of YOU! Give it some thought and approach this situation like the mortal enemy it is. We must unite in active resistance to an unjust court, backed by an even more unjust legal system, all put in place by the henchmen of our government….yep…..THAT CASEWORKER.