CBA Record

denied. Appellant should file the notice of appeal immediately after the judgment is entered, and deliver, not mail, the proposed bystander’s report of proceedings to appellee’s counsel immediately after that. Don’t delay. If a judge can’t remember the testimony, is he likely to give the benefit of the doubt to the side that wants to reverse him? There is no prescribed format for a bystander’s report of proceedings. The best practice is to follow the style used by court reporters in preparing their verbatim report of proceedings pursuant to Rule 323(a), except that it is not necessary for the testimony to be in oral interrogatory (question and answer) form. Narrative form is acceptable, and indeed may be preferred. The trial court caption, not the reviewing court caption, should be used. If you have never seen a court reporter’s verbatim report of proceedings of a trial, get one, study it, and make the format of your bystander’s report of proceeding as close to that style as possible. Remember, it was a trial, not a deposition. The appellant–who has the burden of proof on appeal–should make every effort to make the bystander’s report of proceed- ings as thorough and complete as possible, particularly when it comes to the testimony on anything that is going to be raised as error on appeal. A sketchy report of pro- ceedings will not instill confidence in the reviewing court and will not carry the day. George F. Mueller & Sons, Inc. v Northern Illinois Gas Co., 32 Ill.App.3d 249, 255, 336 N.E.2d 185, 190 (1st Dist. 1975). What if there was a court reporter? Occasionally, there was a court reporter present for the trial but the appellant cannot afford the cost of a write up and for that reason wants to utilize a bystander’s report of proceedings. Although the rule arguably does not allow this, the Appellate Court has said in dictim that it is not only Format for the bystander’s report of proceedings

Rule 323(b). The reviewing court is really not interested in reviewing the dispute about what the witnesses testified. The three deadlines in 323(d)–28 and 14 and 7–aggregate 49 days, which is the exact deadline for the filing of a court reported verbatim report of proceedings. S.Ct. Rule 323(b). If the deadlines in 323(d) cannot be met–which is often true–extensions may be requested from the Appellate Court. S.Ct. Rule 323(e). Be careful: there are deadlines in 323(e) for requesting extensions. If they are not met, a request for an extension should be sought under Rule 183. In either event, the Appellate Court generally will liberally grant extensions, provided that Counsel for the appellant can never be sure whether appellee’s counsel–who may be someone new stepping into the case solely for the appeal–will be a choir boy or a storm trooper on the issue of the content of the bystander’s report of proceedings. Prudence dictates that the appellant assume the latter good cause is shown by affidavit. Time is of the essence for appellant

will be more likely. That means that there will be a dispute about what the witnesses actually testified that is going to have to be resolved by a trial judge who probably hears dozens of motions and several trials every week and probably will have little or no recollection of your particular trial that he heard several months prior. The trial judge may or may not have good trial notes. The probability is overwhelming, of course, that the notes will be far from a verbatim recitation of what each witness said. The judge is not a certified shorthand reporter. Also, there’s always the unlikely but forseeable possibility of judicial retire- ment or demise in the interim. Therefore, appellant’s counsel will want to bring the dispute on the content of the report of proceedings before the judge for ruling as quickly as possible. If the trial was non-jury–so that a post-trial motion is not mandatory–strong consideration should be given to foregoing a motion to reconsider. Those motions always result in months of briefing and are nearly always

28 APRIL/MAY 2015