CBA Nov.-Dec. 2020

ca1.uscourts.gov/sites/ca1/files/Docket- ingStatement.pdf; Second Circuit Court of Appeals Local Rule 12.1; see Second Circuit Court of Appeals Civil Appeal Pre- Argument Statement Form, https://www. ca2.uscourts.gov/clerk/case_filing/forms/ pdf/Form_C_rev_12-16.pdf; Fourth Circuit Court of Appeals Local Rule 3(b); see Fourth Circuit Court of Appeals Docketing Statement Form, https://www. ca4.uscourts.gov/docs/pdfs/dockstate- mentcivagy.pdf?sfvrsn=a84490d0_20; Tenth Circuit Court of Appeals Local Rule 3.4, see Tenth Circuit Court of Appeals Docketing Statement Form, https:// www.ca10.uscourts.gov/sites/default/ files/clerk/D-2%20Dkt%20Stmt%20 2019%20Fillable%20Form.pdf. Seventh Circuit Rule 3(c)(1) mandates inclusion within the docketing statement of the jurisdictional statement required in the appellant’s brief by Circuit Rule 28(a), which requires an appellant to provide a detailed jurisdictional statement within seven days of the filing of the notice of appeal. Seventh Cir. R. 28(a). The docket- ing statement must identify the following: • The date of entry of the judgment or decree sought to be reviewed; • The filing date of any motion for a new trial or alternation of the judgment or any other motion claimed to toll the time within which to appeal; • The disposition of such a motion and the date of its entry; • The filing date of the notice of appeal (together with information about an extension of time if one was granted); • If the case is a direct appeal from the decision of a magistrate judge, the dates on which each party consented in writ- ing to the entry of final judgment by the magistrate judge. If the appeal is from an order other than a final judgment, the docketing statement must “provide the information necessary to enable the court to determine whether the order is immediately appealable.” All of this information is required again in the juris- dictional statement contained within the appellant’s brief, and if that is insufficient, in the appellee’s brief. Seventh Cir. R. 28. The Seventh Circuit takes these require- ments seriously. In Lowrey v. Tilden and

McCray v. Wilkie , for example, the court refused to consider the merits of the appeals, instructed counsel to file amended jurisdictional statements, emphasized its “reputation as a jurisdictional hawk,” and “reminded” attorneys practicing before the court that it relies on accurate jurisdictional statements. 948 F.3d 759, 760–61 (7th Cir. 2020). By doing so, the court avoided wasting time and resources deciding appeals over which it might not have jurisdiction. Benefits of Amendment to the Illinois Supreme Court Rules Ideally, litigants should consider whether the Court has jurisdiction to hear an appeal as part of the process of deciding to file a notice of appeal. Requiring the docketing statement to include a state- ment setting forth the facts to establish that the reviewing court has jurisdiction is a minimal additional burden. The Sev- enth Circuit, California, and New York courts, among others, require appellants to address jurisdiction in the docketing state- ment or similar filing due after the notice of appeal but before opening briefs. This requirement would force litigants to think through address these threshold issues in advance of briefing. See In re Marriage of Ruchala , 208 Ill. App. 3d 971, 976 (2d Dist. 1991) (explaining that “the jurisdic- tional statement requirement [in Rule 341] was intended to provoke counsel to make an independent determination of the right to appeal”). Court staff could review each docketing statement to screen for cases in which there is not proper jurisdiction. All participants in the appellate process will benefit. The appellate court and the clerk of the appel- late court will know the basis of jurisdic- tion within 14 days of the filing of the notice of appeal, and the appellee will be able to make an informed evaluation of whether jurisdiction exists. If the court adopts this requirement, it would enable the appellate court to more easily evaluate jurisdiction at an earlier stage, and reduce the risk of a later dis- missal, after the court and litigants have expended time and resources briefing and arguing cases over which the court lacks

jurisdiction. Illinois appellate courts are required to examine jurisdiction as a threshold issue, regardless of whether the parties have addressed it. To help courts meet this requirement, the Illinois Supreme Court should consider revising its rules to require litigants to thoroughly address jurisdiction before substantive briefing. This require- ment should help prevent the courts and litigants from wasting time and resources on the merits of an appeal that might later require dismissal for lack of jurisdiction. As but some examples, several other forums— Indiana, New York, California, and the Seventh Circuit Court of Appeals—require litigants to address jurisdiction in advance of briefing, and there is no evidence that those requirements pose a significant burden on the courts or litigants. For these reasons, the authors suggest that Supreme Court of Illinois consider amending the Supreme Court Rules to require the appellant to include within the docketing statement the jurisdictional statement currently required to be made in the appellant’s brief by Rule 341(h)(4), and to require appellees to address that jurisdictional statement in a responsive docketing statement if the appellees do not regard the statement to be complete and correct. Libby S. Deshaies is an associate at Winston & Strawn LLP in Chicago and previously served as a law clerk for Illinois Supreme Court Justice Rita B. Garman and U.S. Sev- enth Circuit Court of Appeals Judge Michael Kanne. LDeshaies@winston.com Michael T. Reagan, of the Law Offices of Michael T. Reagan in Ottawa, is a past president of the Illinois Appellate Lawyers Association and a Fellow of the American Academy of Appellate Lawyers. MReagan@ reagan-law.com Matthew R. Carter is a partner at Winston & Strawn LLP in Chicago and previously served as a law clerk for Illinois Supreme Court Justice Rita B. Garman. MCarter@ winston.com

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