CBA Record July-August 2023

Tips for Effective Appellate Advocacy By Illinois Appellate Court Justice Mathias W. Delort

B ecause the Illinois Supreme Court grants only a small number of petitions filed before it for leave to appeal, the Illinois Appellate Court is often the court of last resort for litigants in our state’s court system. Unfortunately, too often, poor appellate advocacy diminishes the effectiveness of a party’s arguments. Over the past few years, the Appel late Court has transitioned to an almost paperless environment. The Covid-19 pandemic accelerated this process, as it required the court and its staff to work remotely for extended periods of time. To effectively advocate in an electronic envi ronment, counsel must prepare and pres ent all written materials in a manner that facilitates judicial review on screens rather than on paper. This article addresses common errors that appellate counsel commit when preparing filings and pro vides guidance for more effective appel late advocacy. Illinois Supreme Court Rule 341(a)(2) requires an appellant’s brief to open with “an introductory paragraph” stating “the nature of the action,” “the nature of the judgment appealed from,” and “whether the judgment is based upon the verdict of a jury.” Note that the rule uses the singular: “paragraph.” Justices often see Nature of the Case sections spanning sev eral pages, laden with excruciatingly con Nature of the Case Section of the Appellant’s Brief

Typography Illinois Supreme Court Rule 341 requires the text of appellate briefs to be in 12-point type, double-spaced. The rules do not specify any particular font. Justices have seen briefs and motions in virtually every conceivable font except (so far) Comic Sans and calligraphic wedding invitation script. Justices on courts of review must read tremendous amounts of material, so it is helpful to use fonts that are easily readable. That’s why savvy appellate litiga tors and agencies with high volume prac tice in our court always use fonts such as Century or Times New Roman, which are eminently readable on screen or on paper. It is generally accepted that fonts whose letters have serifs—that is, small projections finishing off the stroke of each letter or character—are more readable than sans serif fonts such as Arial. Like wise, a font whose letters are proportion ately spaced—giving wide letters such as “M” more line space than thin ones such as “I”—are easier on the eye than fonts such as Courier, which is reminiscent of an old-fashioned typewriter. Nothing is more annoying than read ing a brief that is laden with liberal use of boldface, italics, underlining, and words set in ALL CAPITAL LETTERS. Section headings can be in boldface, but just about nothing else should be. Italics should be used for names of reported cases, and— very sparingly—for a word here and there that requires special emphasis in context.

voluted case histories, citations to legal authorities, argumentative characteriza tions, and other material more suitable to the Argument section of the brief. Except in an extraordinarily complex case, the brief’s nature of the case sec tion should be just a few sentences long. Here’s an example. “This is a dispute over whether an insurer was required to insure a particular loss. The insurer filed a declaratory judgment complaint against its insured, contending that its excess risk policy did not cover the loss in question. The circuit court entered summary judg ment in favor of the insurer, holding that the risk fell under one of the exceptions in the policy.” Nothing more is needed at that point. Save the details for the State ment of Facts and Argument sections of the brief. Docketing Statement The same principles apply to the Dock eting Statement required by Rule 312. The Docketing Statement is simply a mechanism for the appellate court clerk to obtain the parties’ contact information. While the docketing statement form does request the appellant to list the “general issues you want to raise in this appeal,” it provides only four lines to do so. That’s more than enough. Simply say something like: “Whether the court erred in granting summary judgment to the plaintiff and in barring certain affidavits.” Again, further details belong in the brief.

28 July/August 2023