CBA Record April-May 2019

CBA RECORD

EDITOR’S BRIEFCASE BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF I Explained All of That in My Brief T rial lawyers will find appealing two feature articles in this issue. First District Justice Mathias W. Delort’s “Luddites Beware: Appellate Court Practice in the Electronic Age,” at p. 28 and appellate practitioner J. Timothy Eaton’s “Oral Argument in Review- ing Courts,” at p. 34, share valuable insights for inexperienced, as well as experienced, appellate advocates. As an appellate justice, I thought I would add a few tips, starting with what every litigator should repeat aloud before every case: what happens in the trial court makes or breaks an appeal. That’s because an appeal is not an opportunity for a “do-over.” Also, remember that appellate judges review and consider only what is included in the record. Unless raised before the trial judge, an issue won’t be part of the record. So anticipate, develop, and preserve issues and errors for possible appeal. A classic appellate adage expresses the point succinctly: If it isn’t in the record, it didn’t happen. A mistake observed in lawyers who rarely or occasionally handle an appeal involves either not reading or not complying with the appellate rules. Although a no-brainer, some lawyers forget or disregard the rules. Big mistake. Know and follow the Supreme Court rules governing appeals, including rules on jurisdiction, finality, and timing. Judges take the rules seriously. Strive to earn the trust of the judges by demonstrating credibility and candor. It’s what differentiates the best briefs from the rest. Characterize the relevant facts with precision and honesty, scrupulously citing sources so the judges can verify their accuracy. Don’t ignore or distort relevant harmful facts, cite inapt authority or misstate relevant author- ity, or disregard an adverse holding. (Rule 3.3(a) (2) of the Illinois Rules of Professional Conduct requires disclosure of directly adverse legal authority, even if the opposing party has not.) Figure out how to handle weaknesses in your case or bad law. Effective lawyers do it all the time. Invariably, if you slip up, your opponent will pounce and, if not your opponent, then the appellate court. Be respectful of adversaries and the trial judge. Adopt a businesslike tone that is neither insulting nor intemperate, but instead professional and polite. Civility requires recogniz- ing that advocacy has boundaries. Briefing Briefs should be oriented and organized so judges do not have to spend a great deal of time figuring out the issues, the facts, and the arguments. You would be surprised at the number of briefs that read like an article in a technical journal. Adhere to the advice of Robert Louis Stevenson, who passed the Scottish bar but never practiced law, “Do not write merely to be understood. Write so you cannot possibly be misunderstood.” Also, limit the issues. A slew of issues lessens the importance of the key ones; select the most significant and (hopefully) meritorious issues. Convince the judges that a ruling in your favor achieves the correct result. Rehashing argu- ments made in the trial court rarely works. If the appellant, focus on the trial court’s errors. If the appellee, focus on the issues raised in the opening brief. And every issue on appeal is measured by a standard of review, which embodies how much weight the appeals court gives to trial court determinations. Prepare arguments with the standard of review in mind. Finally, three responses at oral argument that you should never utter: • “I’m going to answer your question, but first…”

EDITORIAL BOARD Editor-in-Chief Justice Michael B. Hyman Illinois Appellate Court Associate Editor Anne Ellis Proactive Worldwide, Inc. Summary Judgments Editor Daniel A. Cotter Latimer LeVay Fyock LLC YLS Journal Editors Daniel J. Berkowitz Aronberg Goldgehn Natalie Chan Sidley Austin LLP Nicholas D. Standiford Schain Banks Kenny & Schwartz

Carolyn Amadon Samuel, Son & Co. Jonathan B. Amarilio Taft Stettinus & Hollister LLP Amy Cook The Farmer Chef Alliance Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Cafferty Clobes Meriwether & Sprengel LLP Clifford Gately Hinshaw & Culbertson Jasmine Villaflor Hernandez Cook County State’s Attorney’s Office Lynn Semptimphelter Kopon Kopon Airdo LLC John Levin Kathryn C. Liss DePaul University College of Law Bonnie McGrath Law Office of Bonnie McGrath Clare McMahon Law Office of Clare McMahon Pamela S. Menaker Clifford Law Offices Peter V. Mierzwa Law Bulletin Publishing Company Kathleen Dillon Narko Northwestern University School of Law Adam J. Sheppard Sheppard Law Firm, PC Richard Lee Stavins

Robbins, Saloman & Patt, Ltd. Rosemary Simota Thompson Judge E. Kenneth Wright, Jr. Circuit Court of Cook County THE CHICAGO BAR ASSOCIATION David Beam Director of Publications Rebecca Martin rmartin@chicagobar.org

• “The trial judge didn’t understand.” • “I explained all of that in my brief.”

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