states that an objection to the motion must be filed within three days.The court will not act until either an objection has been filed or the time to file an objection has expired. For an emergency motion to be granted before the three-day period to respond, and the relief is unopposed, the motion should indicate that there is no objection. In the First District, the emergency motion rule is L.R. 6. It requires the actual words “Emergency Motion” in the title of the motion. Otherwise, the First District rule is largely consistent with the Second District rule on emergency motions. Both the First District and Second District rules stress that the situation truly must be an emergency. Examples of emergency motions may include a motion to stay an injunction, or a stay of execu- tion on a judgment, or in criminal cases motions regarding bail, or bonds in civil and criminal cases. Rule 361 stresses that except in the most extreme cases, a motion for extension of time is not to be considered an emergency. Types of Motions Many different types of motions can be filed during an appeal. The more frequent types include the following: Motion to File Late Notice of Appeal Supreme Court Rule 303(d) allows a party to file a motion seeking to have a late notice of appeal filed. Such a motion must be filed within 30 days after the time expires to file the notice of appeal and must show a reasonable excuse for the late filing. This motion must be filed in the appellate court. Motion to Set a Bond Supreme Court Rule 305 provides for stays of money judgments or non-money judgments pending appeal if an appropri- ate bond is posted (in money judgments) or where the stay is “conditioned upon terms that are just,” such as a bond or other security (in non-money judgments). Application for a stay must ordinarily be made in the first instance to the circuit court, but a motion for stay may be made to the reviewing court if application to the circuit court is not practical or if the circuit court has denied an application. A motion to the reviewing court must be supported
by an affidavit and accompanied by a sup- porting record if the record on appeal has not been filed. Motions to Extend to File the Record Appellant has the obligation to make sure the common law record and report of proceedings (i.e., transcript) is filed in the appellate court. If either the clerk of the circuit court cannot prepare the common law record on time, or the court reporter has not completed the transcript on time, then the appellant must file a motion in the appellate court to extend the time for filing the record. This motion should include an affidavit as to the circumstances of why the Often after the record is filed, a party dis- covers that certain items that were in the trial court record are missing. Rule 329 provides that material omissions, inac- curacies, or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court or by the reviewing court or a judge thereof. In the First District, Local Rule 19 sets forth the procedure to supplement the After the docketing statement is filed in the reviewing court, a party may file a motion pursuant to Rule 311 for good cause shown to place the case on an accelerated docket. This motion must be supported by an affidavit stating the reasons why the appeal should be expedited. In some instances, a supporting record is required. Motion to Extend Time to File a Brief If counsel for a party on appeal is unable to file a brief by the due date, they may file a motion to extend the time to file the brief stating specific reasons for the need for the extension. For example, if counsel has a trial scheduled that will prevent filing the brief on time, the motion should include the name of the case and the trial dates. If counsel has other briefs due in other reviewing courts, the motion should specify what case and when the briefs are due. The court will also consider personal record cannot be timely filed. Motion to Supplement the Record record in that reviewing court. Motion to Accelerate Briefing
reasons for why more time is needed. Furthermore, instead of asking for an extension of a certain number of days to extend the time to file a brief, state the exact due date requested for filing the brief (e.g., November 15, 2020). The First District L.R. 4 requires that the motion ask for a specific date in seeking an exten- sion. Motions for an extension require an accompanying affidavit attesting to the rea- sons given in the motion for the extension. Dispositive Motions Under Rule 361(h) Appellate courts should rule on disposi- tive motions promptly before the parties have to brief the case on the merits. Such dispositive motions may include a lack of jurisdiction by the reviewing court to hear the appeal. The purpose of the rule is to avoid having the court simply “take the motion with the appeal,” requiring the parties to spend additional resources in briefing the appeal on the merits. A sup- porting record may be required with this motion if the record has not be filed in the reviewing court. The rule also provides that the party filing the dispositive motion must discuss the facts, issues, and law supporting the motion. An objection to a dispositive motion also must address all required portions of the motion, and may in some instances require an additional supporting record. This motion is one of the rare types where the appellate court may either order additional briefing, record submissions, or oral argument, as it deems appropriate. Motion to Supplement with New Authority The reviewing court should be made aware of any new case or statute since the filing of the brief. The authority should in fact be new, and the motion should include the issue that the new authority addresses. Motion to Strike Motions to strike should be filed sparingly, if at all. Such a motion may address proce- dural irregularities in the brief. However, a court knows its own rules, so such a motion is unlikely to yield any relief that the court would not otherwise have granted on its own if the situation warrants it.
32 January/February 2020
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