Writing a Better Appellate Brief

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.
I. Introduction
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
preparation.
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;
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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?”
Example One
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).
Example Two
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
(C. 77-80).
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.
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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.
4. Covers
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
parties).
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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
“the employer.”
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
that motion.
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.
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The nature of the case section should be short, concise and should not be
argumentative.
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
341(h)(4).
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
timely; and
• 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.
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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
appealable.
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
assault?
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.
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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.
De Novo
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).
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Examples:
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
of discretion).
Examples:
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
Dist. 1991).
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
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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.
Examples:
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 … .”
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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:
Examples
Version 1
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).
Version 2
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).
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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
opponent.
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
effective technique.
• 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.
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6. Argument
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
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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
argument.
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.
• Footnotes.
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.
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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.
IV. Citations
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
follows:
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
court.
• 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.
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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
(new system).
• 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
court district.
• 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
appellate district.
• Avoid string cites.
• Consider using parentheticals, but do not use them to argument
substantively.
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
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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
progress.
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
discretion.
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.
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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.
2007).
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
appellant’s theme.
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.
Resources:
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.

Writing a Better Appellate Briefs

April 15, 2017 § Leave a comment

Writing Better Appellate Briefs
Brad A. Elward & Natalie Thompson
Heyl, Royster, Voelker & Allen, Peoria
Distributed March 6, 2013
I. Introduction
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
preparation.
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;
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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?”
Example One
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).
Example Two
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
(C. 77-80).
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.
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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.
4. Covers
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
parties).
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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
“the employer.”
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
that motion.
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.
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The nature of the case section should be short, concise and should not be
argumentative.
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
341(h)(4).
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
timely; and
• 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.
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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
appealable.
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
assault?
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.
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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.
De Novo
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).
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Examples:
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
of discretion).
Examples:
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
Dist. 1991).
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
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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.
Examples:
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 … .”
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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:
Examples
Version 1
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).
Version 2
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).
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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
opponent.
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
effective technique.
• 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.
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6. Argument
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
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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
argument.
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.
• Footnotes.
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.
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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.
IV. Citations
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
follows:
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
court.
• 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.
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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
(new system).
• 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
court district.
• 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
appellate district.
• Avoid string cites.
• Consider using parentheticals, but do not use them to argument
substantively.
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
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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
progress.
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
discretion.
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.
17
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.
2007).
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
appellant’s theme.
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.
Resources:
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.

Illinois bad report card?

April 3, 2017 § Leave a comment

Showing posts sorted by relevance for query illinois. Sort by date Show all posts
Tuesday, July 12, 2011

Illinois Catholic Charities Keeps Right to Serve Children with Foster Care, Adoption Services

Illinois Catholic Charities Keeps Right to Serve Children with Foster Care, Adoption Services

Today, Illinois Judge John Schmidt granted three Illinois Catholic Charities a preliminary injunction, allowing them to continue their service to the nearly 2,000 Illinois children under their care for foster care and adoptions.
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Labels: foster care, Illinois, LGBT, USA
Monday, February 16, 2015

ACLU asks judge to order Illinois reforms for child services

ACLU asks judge to order Illinois reforms for child services

The American Civil Liberties Union of Illinois has asked a federal judge to order the Illinois Department of Children and Family Services to start enacting court-ordered reforms.
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Labels: Child Protective, Illinois, lawsuit, USA
Sunday, January 11, 2015

Our View: Illinois must fix Department of Children and Family Services

Our View: Illinois must fix Department of Children and Family Services

It’s sad to think it took newspaper and television reports to get Illinois officials to pay attention to problems at the Illinois Department of Children and Family Services.

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Labels: Child Protective, Illinois, reform, USA
Friday, February 15, 2013

Illinois’ Budgetary Problems Put Child Welfare Services Progress In Jeopardy, Report Says

Illinois’ Budgetary Problems Put Child Welfare Services Progress In Jeopardy, Report Says

Illinois’ fiscal crisis is posing a significant threat to the health and safety of children across the state, according to Voices for Illinois Children’s annual Kids Count report.

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Labels: Child Protective, foster care, Illinois, money, USA
Wednesday, July 11, 2012

“Kids Falling Through the Cracks” of Illinois’ Understaffed Child Abuse Hotline

Ut oh! Children’s Rights has their eye on Illinois…

“Kids Falling Through the Cracks” of Illinois’ Understaffed Child Abuse Hotline

Illinois’ child abuse hotline is plagued with staffing shortages and delayed responses, according to an investigative report by the Chicago Tribune. The investigation reveals that the hotline’s performance has worsened in several key areas:

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Labels: child abuse hotline, Child Protective, Illinois, USA
Thursday, January 26, 2012

Lawsuit claims Illinois illegally withholds treatment for kids

Lawsuit claims Illinois illegally withholds treatment for kids

A class action lawsuit against the state of Illinois alleges state welfare agencies illegally withhold treatment for children with emotional and behavioral disorders. The lawsuit could affect more than 18,000 youth with severe mental illnesses and emotional disturbances in Illinois.
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Labels: Illinois, lawsuit, psychology, USA
Friday, December 30, 2011

Requirement to consider gay couples for adoption forces Illinois Catholic Charities affiliates to close

Requirement to consider gay couples for adoption forces Illinois Catholic Charities affiliates to close

After the Illinois state legislature passed a requirement that says adoption and foster-care agencies — to be eligible for state money — must consider same-sex couples as potential foster-care or adoptive parents, the Roman Catholic bishops in Illinois decided to shut down most of the Catholic Charities affiliates in the state. This isn’t the first time something like this has happened: Massachusetts and Washington D.C. both passed similar requirements — and many Catholic Charities affiliates closed down in those states, as well. The New York Times reports:
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Labels: foster care, Illinois, LGBT, religion, USA
Tuesday, November 15, 2011

Illinois Catholic Charities gives up fight for foster services

Illinois Catholic Charities gives up fight for foster services

Calling off legal efforts to keep Catholic Charities of Illinois in the foster care business, three Roman Catholic dioceses have dropped their lawsuit against the state of Illinois, and agreed to transfer more than 1,000 foster care children and staff to other agencies.
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Friday, March 12, 2010

Juvenile Justice, Children and Family Services departments merging

Juvenile Justice, Children and Family Services departments merging

Acknowledging that teenagers in correctional facilities suffer from trauma and mental health issues and that the state has fallen short in helping them, Illinois officials announced Wednesday that the Department of Juvenile Justice will be folded into the Department of Children and Family Services.
—-
Quinn calls for changes in juvenile prison system

Gov. Pat Quinn wants to end a rocky experiment with the state’s juvenile prison system.

On the heels of an audit showing the Illinois Department of Juvenile Justice has been mismanaged since it was split off from the state’s adult prison system in 2006, Quinn is proposing to fold the agency into the Illinois Department of Children and Family Services.

Note: LOL! Pat Quinn thinks that the Illinois Department of Children and Family Services is gonna do better.

Deet! Dee Dee!!!

Illinois is in the lead again on running more of the tax payers monies to the rich?

May 5, 2015 § Leave a comment

Illinois’ economy is sputtering. And it’s not because the state’s economic development agency isn’t doing its job. In fact, it’s partly because the agency exists in the first place.

For years, Illinois’ economic development agency, the Department of Commerce and Economic Opportunity, or DCEO, has thrown hundreds of millions of dollars at the biggest companies in the state, leaving taxpayers with the bill and small-business owners struggling to succeed on an unequal playing field.

The growth-through-giveaway approach has failed miserably – Illinois has 56,000 fewer people working since the DCEO’s biggest program got started in 2001. And privatizing the agency – as state lawmakers are now suggesting – won’t make it work.

A new proposal from state politicians, House Bill 574, would privatize much of the DCEO’s responsibilities, creating a public-private partnership entity called the Illinois Business and Economic Development Corp. This entity would “focus on business development, small and minority-owned business incubation, trade and investment, tourism and film.”

But whenever the state gives certain businesses grants or tax credits, the money has to come from somewhere: namely, taxpayers and other businesses.

The DCEO’s model has already proven a simple truth: Healthy economic growth doesn’t come from selective government handouts. If you measure the DCEO based on results, it has failed miserably. The largest DCEO tax-credit program is the Economic Development for a Growing Economy, or EDGE, tax credit, which began in 2001. The entire purpose of the EDGE tax credit is to incentivize businesses to expand and create new payroll jobs in Illinois. But after more than 13 years and nearly $1 billion in EDGE tax credits, the state is actually down 186,500 payroll jobs, a stunning record of failure.

What’s worse, for more than a decade, Illinois has been giving select businesses many millions of dollars more in tax credits than the law allows. The EDGE program is intended for companies seeking to expand and hire more workers in Illinois; not to help companies maintain existing workers.

But the DCEO has been giving tax credits to companies that simply retain employees. The Liberty Justice Center has filed a lawsuit, Jenner v. DCEO, which seeks to stop this illegal practice. The lawsuit alleges it’s possible that as much as half of the nearly $1 billion in EDGE tax credits approved over the life of the program violated the limits established in the law.

Not only is the DCEO handing out illegal subsidies, but politicians also make use of it to curry favor and create the illusion of jobs growth.

Former Gov. Pat Quinn did just that in October 2014, one month before he was up for re-election. That month alone, Quinn authorized $37.4 million in major grants to four big companies and two influential incubators.

Failed economic stimulus and rampant abuse of tax dollars always come into play when government gets into the business of picking winners and losers.

Knowing the DCEO is broken might make it tempting for politicians to create a public-private partnership to carry out similar functions. But public-private partnerships like the proposed Illinois Business and Economic Development Corp. won’t solve these fundamental problems.

In fact, privatizing could help shield the group from the same scrutiny that brought the DCEO’s usefulness into question in the first place. Transparency requirements, such as Freedom of Information Act requests and open records reporting, often do not apply in the case of public-private partnerships, leaving taxpayers in the dark on how their money is spent.

For example, Jobs Ohio, a similar program, has been plagued with a lack of transparency because the “public-private” hybrid structure allows it to be considered a private organization. The program regularly subsidized donors to Gov. John Kasich and his legislative allies, and Jobs Ohio ran ad campaigns to trumpet its economic success – not unlike how Quinn used Illinois’ DCEO.

The DCEO has been a mess – but in attempting to fix one problem, the state shouldn’t create new ones. Illinois shouldn’t have to bribe big businesses to set up and invest here.

Subsidizing legacy businesses misses the point of what actually drives jobs growth: Kauffman Foundation research shows that job creation is driven by younger firms in their first five years. Nationwide, businesses with fewer than 50 employees represent 95% of all U.S. companies.

Politicians should embrace economic reforms that make the state a place to which employers want to flock. That includes keeping the tax burden low, eliminating unnecessary red tape and reforming out-of-control workers’ compensation costs.

Illinois needs a lot less DCEO favoritism, and a lot more real economic reform.

This article originally appeared on the Huffington Post on May 1.

HIlary Gowins Yelvington
Managing Editor

Illinois has lost over 1.4 Million Residents and growing?

January 30, 2015 § Leave a comment

Illinois has lost nearly 1.4 million residents on net over the last 20 years. This out-migration crisis comes with an estimated cost to government of nearly $8 billion annually.

Two data sets paint a picture of how this out-migration crisis is breaking state and local budgets.

The first comes from the Internal Revenue Service, which compiles taxpayer filings that show when taxpayers move from one state to another, and how much income they take with them when they leave. The IRS data put a firm number on the net loss of wealth and talent from Illinois.

In every year from 1995-2010, Illinois lost more taxpayers and adjusted gross income, or AGI, than it gained. In addition, the average taxpayer who left Illinois earned about $8,700 more per year than the average taxpayer who entered Illinois.

Illinois’ net loss of $35.3 billion in annual adjusted gross income from 1995-2010 resulted in a budget-busting loss of $5.9 billion in annual tax revenue for state and local governments. Over the 16 years from 1995-2010, the cumulative loss of tax revenue was nearly $52 billion dollars. This tax revenue loss is divided approximately equally between the state and local levels.

The IRS has since delayed releasing additional data in a move that smells like politics. In general, the migratory data show red states as destination states and blue states, such as Illinois, New York and California, as major exporters of wealth and talent.

However, using a second set of relevant data, which comes from the U.S. Census Bureau and is largely based on IRS data, one can estimate how out-migration since 2010 has affected Illinois budgets. Census data use IRS migration information as an input, and also include broader measures that capture migrants who don’t pay taxes, such as students.

On average, IRS out-migration numbers are 81 percent of the broader census measurement. Under that assumption, Illinois lost nearly 250,000 taxpayers plus dependents from 2011-2014.

The estimated loss of AGI and tax revenue from 2011-2014 is $10.3 billion in annual income, along with $1.7 billion in state and local tax revenues.

Over the last 20 years, Illinois has lost 1.36 million people to other states on net, according to the U.S. Census Bureau. That is equivalent to 1.1 million IRS taxpayers plus dependents, and $45.6 billion in annual AGI.

Due to the last 20 years of flight, the annual tax-revenue loss to state and local governments is a stunning $7.6 billion.

Any long-term fix to Illinois’ budget crisis must address the state’s out-migration crisis. In order to have sustainable budgets, Illinois needs a plan to stop chasing taxpayers away. Given that the No. 1 reason people leave Illinois is for job and business opportunities, a sustainable plan for moving forward must include economic reforms that foster entrepreneurs, encourage business and manufacturing expansion, and allow for local solutions.

Michael Lucci
Director of Jobs and Growth

Illinois extends marijuana experiment to children

January 4, 2015 § Leave a comment

Medical Marijuana Children
In this Jan. 1, 2015, photo, Nicole Gross and her husband, Randy, follow Chase, their epileptic 8-year-old son, as he walks through their home in Colorado Springs., Colo. Nicole moved her son to Colorado from Chicago about a year ago so they could legally treat him using a low-THC, high-CBD medical marijuana oil known as Charlotte’s Web. Randy continues to work in Chicago and comes to Colorado as often as he can. BRENNAN LINSLEY — AP Photo Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children Medical Marijuana Children APTOPIX Medical Marijuana Children

CHICAGO — Randy Gross hopes a new law allowing children into Illinois’ medical marijuana program will reunite his family, nearly a year after his wife moved to Colorado so their son could receive a controversial treatment to ease his epileptic seizures.

Gross lives and works in Illinois. His wife, Nicole, moved with their two sons so their 8-year-old could legally swallow a quarter-teaspoon of marijuana oil each day. While the medical evidence is thin, some parents — including the Grosses — say marijuana works for their children and they’re willing to experiment.

“We can tell he’s feeling better,” Nicole Gross said of their son, Chase, who also has autism and uses sign language. “He puts four or five signs together. He’ll sign, ‘brother go downstairs play.’ … He engages more, makes better eye contact. If he notices something funny on his TV show, he’ll clap and pat you on the back.”

The boy formerly suffered abrupt “head drop” seizures — at least one every two minutes, she said. Now 20 minutes go by, sometimes 30 minutes, between seizures, she said.

The dark green, pungent oil comes from a hybrid marijuana strain called Charlotte’s Web, which was cultivated by a Colorado company to be heavy in a compound called CBD and low in THC, the ingredient that gets people high. It hasn’t been tested in clinical trials for effectiveness or safety, but it will be legal in Illinois under a law that took effect Thursday.

Sorting truth from hype is difficult. CBD shows enough promise that two drug companies are studying it for childhood seizures with support from U.S. regulators, but those results will take years. For now, mainstream medicine regards Charlotte’s Web as a folk remedy deserving of caution.

“There is good evidence of long-term harm of chronic marijuana use on the developing brain under 18 years of age,” said Dr. Leslie Mendoza Temple, a suburban Chicago doctor who has given accredited lectures about medical marijuana for the Illinois Academy of Family Physicians.

She considers the scientific evidence sparse, so “in general, this is a medicine only to be considered when all other therapies have been exhausted and failed, and if the child is quite debilitated.”

A wave of Charlotte’s Web publicity, sparked by a 2013 CNN documentary, lured families to Colorado and unfairly played on their desperation, said Dr. Kevin Chapman, who treats children with epilepsy at Children’s Hospital Colorado. Chapman has seen only inconsistent parent accounts that Charlotte’s Web works.

When he and his colleagues reviewed the charts of 58 young patients using the oil, they found less than a third of parents reported a big reduction in seizures, and the improvement didn’t show up on available before-and-after tests that measure brain waves. Families who moved to Colorado to use the drug, however, were three times more likely to report improvement than families already living in the state.

“Families have to move, sell everything, pack up, leave their social network,” Chapman said. “It’s hard to be truly objective if you’ve had to do so much to get this drug that’s been touted as a miracle medication.”

Under emergency rules, the Illinois Department of Public Health announced in December, young patients will be able to use medical marijuana for any of the nearly 40 health conditions already authorized for adults, although some — like agitation of Alzheimer’s disease — aren’t childhood conditions.

Children will be required to get written certification from two doctors. Adult patients need just one doctor to sign off.

Illinois doctors will be reluctant to sign children’s forms, and for good reason, said Dr. Joel E. Frader, a Northwestern University bioethicist and palliative care pediatrician at Lurie Children’s Hospital in Chicago. Signing means a doctor believes there will be a therapeutic benefit that outweighs the risks.

“I know there are a lot of parents who feel desperate, and my heart certainly goes out to them,” Frader said. “In Illinois, there has been pressure put on the state Legislature and the regulatory process to increase the scope of use for medical marijuana by families who look at this as their last hope.”

No legal marijuana has yet been grown in Illinois yet. Potential growers waiting to learn whether they’ve been granted permits must build secure facilities before they can plant the first crop. That means it may be summer before marijuana oil is available in Illinois.

Randy Gross, who works as a chief information officer for a trade group, hopes to bring his wife and sons back home. He tries to spend two weeks each month with them in Colorado. It’s been difficult for the family, particularly his 10-year-old son, Zach.

“I missed his first karate tournament. I missed my wife’s birthday and Valentine’s Day,” he said. “It’s the little things like that.”

Associated Press medical writer Carla K. Johnson can be reached at http://www.twitter.com/CarlaKJohnson

Read more here: http://www.sunherald.com/2015/01/02/5997176_illinois-extends-marijuana-experiment.html?rh=1#storylink=cpy

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