An Illinois appellate court recently reminded litigants that “cutting and pasting” a trial brief into an appellate brief to save attorney time may ultimately prove disastrous if the brief is stricken and the litigant’s position is not considered by the reviewing court. Here is a cautionary tale demonstrating the importance of staffing every appeal with a dedicated and experienced appellate practitioner.
In Walters v. Rodriguez, 2011 IL App (1st) 103488, 2011 WL 5554025 (Ill. App. 1st Dist.), the five plaintiffs sued Union Pacific Railroad Company and others for injuries and two deaths suffered when the mini-van in which they were riding was struck by a train. They brought their negligence claims in the U.S. District Court for the Central District of Illinois, and the jury reached a verdict for defendants. Plaintiffs did not appeal the judgment entered on the verdict. Instead, they commenced this action in state court seeking damages for fraudulent concealment during discovery in the federal case and spoliation of evidence. Because plaintiff had made similar claims in the federal case, defendants moved for summary judgment on the grounds of res judicata and collateral estoppels. That motion was granted and plaintiffs appealed.
The appellate court affirmed the grant of summary judgment to defendants on the ground that the “statement of facts” section of plaintiffs’ appeal brief failed to comply with the applicable rules of Illinois appellate procedure and so had to be “disregarded” by the court with the result being that plaintiffs’ factually unsupported arguments “are considered waived.”
After first noting that “outside of a new introduction and the removal of certain arguments not presented on appeal, plaintiffs’ appellate brief is repeated verbatim from their memorandum of law in opposition to defendants’ motion for summary judgment,” the court reasoned as follows.
First, the Illinois Supreme Court rules governing civil appellate procedure “are not merely suggestions, but are necessary for the proper and efficient administration of the courts.” This is why, where those rules are violated, the reviewing court “may not only strike portions of the brief or consider arguments waived, but strike a brief in its entirety and dismiss the matter.”
Second, it is the appellant’s burden to compile a sufficient record on appeal. The record must contain everything necessary for the appellate court to fully review both sides of each error alleged, and if it does not, “any doubts which might arise from the incompleteness of the record will be resolved against the appellant.” In other words, where the record is deficient, the reviewing court will “presume [that] the [trial] court had a sufficient basis for its holding and that its order conforms with the law.”
Third, as to factual statements in an appellate brief, the appellate rules “require a statement of facts, with citation to the record, necessary for an understanding of the case … with supporting citation of … pages of the record relied on.” This means that each factual statement in the brief’s statement of facts and argument must be supported with a specific citation to the record; the reviewing court “will not sift through the record” to find them.
And fourth, as to legal arguments in an appellate brief, these must be elucidated clearly and supported by legal authorities: “The appellate court is not a depository in which the appellant may dump the burden of argument and research.”
Applying the foregoing principles to the plaintiffs’ appellant brief in Walters, the appellate court found that the brief violated all of them:
Plaintiffs’ statement of facts was deemed “wholly deficient” and was thus “disregarded” by the reviewing court: “As noted, plaintiffs have repeated the entirety of their recitation of facts and analysis concerning their arguments on res judicata and collateral estoppel from their memorandum below. Almost all citations to the record in their brief pertain to the federal court record and not the record before this court.”
The record on appeal was insufficient: “Plaintiffs do repeat their footnote from their trial memorandum that explained to the trial court, and now this court, that the federal exhibits and docket entries can be produced, upon request by the court.” However, “it is not for this court to request a record …, but for the parties to prepare and submit a complete record …”
The few record citations contained in plaintiffs’ brief were incorrect: “Plaintiffs have completely failed to comply with Rule 341 by not only citing predominantly to the federal record, but by providing incorrect citations. Plaintiffs provided some citations to the record before this court in the introduction and conclusion of their facts and in some portions of their analysis. Unfortunately, the majority of these citations are to pages of the record unrelated to plaintiffs’ statements and contentions.”
Plaintiffs’ arguments were unsupported by citation to legal authority: “It is not for this court to … conduct research for the parties, but for the parties to … provide citation to … authority in support of its arguments.”
Finally, plaintiffs, as appellants, were entitled to file a reply brief responding to defendants’ contentions and they did not do so:“It is of further disappointment that we are also without the benefit of a reply brief to provide any explanation or discussion of [the] issue[s] and defendants’ analysis.”
Based on these violations, the appellate court affirmed the summary judgment for defendants without reaching the merits of plaintiffs’ arguments.
The orientation of trial work and appellate work is different – the former decides a case on the merits and the latter examines that decision for prejudicial error. Moreover, intermediate appellate court precedent that is binding on a trial court is not absolutely binding on the appellate court, but instead is open for reexamination and further analysis as the common law is continuously developed. As Walters teaches, for these reasons an appellate brief cannot be a trial court pleading with a new cover, and all appellate briefs must follow the strict rules of factual and legal citation imposed by the reviewing courts. Because the best arguments on appeal will mean nothing if not considered by the reviewing court, retention of experienced appellate counsel is critical to any appeal’s success.