CBA Record January-February 2020

Motion Practice in Illinois Reviewing Courts: Beyond Seeking Time Extensions

By J. Timothy Eaton M ost lawyers handling appeals rely on a tried and true friend – a motion to extend time to file the brief. While motions to extend are common and are certainly important in any appellate practice, other motions are equally impor- tant and may help in the appellate process. This article summarizes the rules governing motion practice in Illinois reviewing courts. It also summarizes the more frequent types of motions that can be filed during an appeal and offers practical advice for using them effectively. Motions Pursuant to Rule 361 Motion practice in Illinois reviewing courts is, for the most part, governed by Supreme Court Rule 361. (Rule 610 incorporates Rule 361 in criminal appeals). Rule 361 is simple to follow; the following guidelines should be to considered before filing a motion in the appellate or supreme court. • The motion must be in writing. There is no limit to the number of pages or words, but based on experience, the shorter the better. • The motion may stand on its own, but one may also file a supporting memo- randum. • For the most part, there are no time limits to filing a motion. But if you are filing a motion for an extension of time to file a brief in the appellate court, consult the local appellate rules in each district of the appellate court. For example, Second District of the Appellate Court has a rule that states: “Motions for extension should be filed, where practicable, at least five days prior to the date to be extended….” • When filing a motion based on facts beyond the record, including a motion for an extension of time to file a brief, include an affidavit attesting to the fac- tual grounds that support the motion. • When filing a motion relying on the

record on appeal, but before it has been filed, then a support- ing record is required pursuant to Supreme Court Rule 328. The supporting record should include what the court will

Oral Arguments on Motions No oral argument is allowed on motions. Rulings on Motions There is no time limit upon which the appellate or supreme court has to rule on a motion. However, when filing a motion to extend, it makes sense to file it early enough to give the court time to rule on the motion before the brief ’s due date. Rule 361 provides that except in exceptional circumstances, or where opposing counsel has indicated no objections, no motion will be acted upon until the time for filing responses has expired. Therefore, if a quick ruling on the motion is desired, notify the court that opposing counsel has no objec- tion if that is the fact. Emergency Motions Rule 361 has very little to say on emergency motions. It basically punts to the rules established in each district of the appel- late court. The only requirement in the rule is that: “the emergency motion must specify the nature of the emergency and the grounds for the specific relief requested.” III. S. Ct. R. 361 (g). As an example, the Second District of the Appellate Court’s emergency motion rule (L.R. 108) has several requirements. First, an emergency motion can only be filed if an appeal itself has been docketed. Second, if the appellate court is being asked to take action within a specified time, that information “shall” be set out in the first paragraph of the motion. And the emergency motion must state whether the relief was sought in the trial court and, if not, why. This local rule requires service on all parties when the motion is filed, and it

need to review in deciding the motion. • After conferring with opposing coun- sel and they have no objection to the motion, “that fact should be stated in the motion in order to allow the court to rule upon the motion without wait- ing until its time for filing a response has expired.” In the Second District by local rule, every motion requires a consultation with opposing counsel to determine if there is an objection. The motion then must include the results of that inquiry. III. App. Ct. L.R. 103 (b). • Every motion must include a proposed order phrased in the alternative e.g., “Allowed” or “Denied.” Rule 361 is very explicit that no motion will be accepted by the clerk unless it is accompanied by a proposed order. • All motions that are filed must contain a certificate of service to all parties to the appeal. Responses to Motions Responses to a motion must also be in writ- ing and be filed with proof of service within five days after personal or e-mail service of the motion, or 10 days after the mailing of the motion if service is by mail or by a third party carrier such as FedEx. The Rule says nothing regarding the format of a response, nor is there any page or word limit. Again, however, the shorter the better. Replies to Responses No reply may be filed to a response without leave of court. Motions for leave to file a reply are generally denied unless excep- tional circumstances are set forth in the motion seeking leave to file the reply.

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