CBA Record April-May 2019

report of proceedings, commonly known as the transcript; and (3) exhibits. Ill. S. Ct. R. 324 (eff. July 1, 2017); Ill. S. Ct. Standards and Requirements for Electronic Filing [of ] the Record on Appeal, § 3 (rev. June 2017). The common law record includes, among other things, all pleadings and orders filed in the circuit court. If a plead- ing contains an exhibit which cannot be filed in PDF format–such as a video record- ing supporting a motion for summary judgment–the pleading should include a placeholder page describing the item, and the item should be manually filed with the clerk of the circuit court so that the clerk can be preserve it for the record on appeal. Ill. S. Ct. Electronic Filing Standards and Principles, § 9(e) (eff. Sep. 16, 2014) (“File exhibits not readily available in electronic form (i.e., blueprints, large maps) may be filed conventionally.”). Record on Appeal: Transcripts The second section of the appellate record includes transcripts of proceedings held in the circuit court, such as arguments on motions, evidentiary hearings, and trials. There has been a sea change in how tran- scripts make their way into the record on appeal. Before the e-filing era, Supreme Court Rule 323 required that a notice of completion of the transcript be sent to the parties. A party could object to the transcript’s accuracy within 14 days and require the court to resolve the dispute. In the alternative, a transcript could be included in the record through a stipula- tion of the parties. Now, the rule requires that the court reporting personnel (not a party or an attorney for a party) “electronically file the reports of proceedings in searchable PDF format to the circuit court clerk within 49 days after the filing of the notice of appeal.” Ill. S. Ct. R. 323(b) (eff. July 1, 2017). The rule also requires: “There shall be a separate, transcribed, dated, and numbered PDF file for each report of proceedings. Reports of proceedings shall be clearly labeled on the first page with the date of the hearing or court proceeding, the type of proceeding, trial court case number, case caption, and the name of the presiding judge.”

If the record contains no transcript of the trial at all, or the appellant decided to rely on an unofficial copy of a trial tran- script attached to a motion in the common law record, the court may “Foutch” the case for lack of a sufficient record to demon- strate error. Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984) (“Any doubts which may arise from the incompleteness of the record will be resolved against the appellant”). It is often unnecessary to include tran- scripts of routine status calls, or arguments on solely legal issues, in the record. But sometimes transcripts of those hearings may be so critical that the appellate court will “Foutch” the appeal even though the missing transcript was not that of the actual trial. Examples include hearings on attorney fee petitions, any hearing where a witness testified, or where waiver or for- feiture of a claim is at issue. Again, those transcripts must now be submitted into the record directly by the court reporting personnel. Rule 323 does not apply to transcripts of depositions included as exhibits to summary judgment motions. Those tran- scripts were already electronically filed as a documentary attachment to the underlying pleading. Record on Appeal: Exhibits The third section of the appellate record includes exhibits. These include: (1) trial exhibits in documentary form that can be scanned into 8½” x 11” PDF format (such as a written contract); (2) trial exhibits that cannot be reduced to PDF format (such as a flash drive or a video recording on a DVD), which are called exhibits “in original form”; (3) exhibits to pleadings (as opposed to trial exhibits) which cannot be reduced to PDF format, also called exhibits “in original form.” Exhibits in original form are further subdivided into two categories: (1) “docu- mentary or descriptive” exhibits such as large maps, photographs mounted on posterboard, recordings and flash drives, which are transmitted to the reviewing court in their original form; and (2) “physi- cal exhibits,” such as clothing or weapons, which are only sent to the reviewing court on request. Ill. S. Ct. Standards and

record “containing enough of the trial court record to show an appealable order or judgment, a timely filed and served notice of appeal (if required for appellate jurisdic- tion), and any other matter necessary to the application made.” For instance, if one is seeking a stay of a circuit court order pend- ing appeal, the supporting record should include–at a minimum–the order in ques- tion, the notice of appeal, any other orders necessary to demonstrate proper appellate jurisdiction, and the pleadings most relevant to the stay request. The supporting record must also be authenticated by the clerk of circuit court or, more usually, by an attorney affidavit attesting to the authenticity of the copies in the supporting record. The sup- porting record must also contain a cover page with the case caption and be paginated. Ill. S. Ct. R. 328 (eff. July 1, 2017). The supporting record should be electronically filed as a separate document and not merely attached as pages at the end of the motion. Even if the circuit court record has been filed with the appellate court, it is a good practice to include a supporting record since the motion justice may not have the circuit court record readily available for review. Motions to file to a response, motion, brief, or other item late are usually cap- tioned as a motion to file instanter. These motions must be accompanied by the actual item that the party seeks to file instanter in a separate, contemporaneously filed, electronic “envelope.” Ill. App. Ct., First Dist., R. 4(E) (Sept. 1, 2004). For instance, if a party wishes to file a brief instanter, the party must electronically file two separate “envelopes”–one containing the motion, and one containing the pro- posed brief. The envelope with the motion should be the lead document, with the proposed item to be filed instanter as an attachment. The second envelope should contain the brief only. This process is fol- lowed for any motions to file instanter, except if the item to be filed instanter is a record because records are transmitted directly from the clerk of the circuit court to the appellate court. Record on Appeal: Common Law Record The record on appeal consists of three main parts: (1) the common law record; (2) the

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