XII Briefs

• Library: Appeals to the Illinois Supreme and Appellate Courts (2018 Ed.)

XII. BRIEFS

A. Brief for Appellant

1. Initial steps. In most cases, appellant's first brief in the appellate court will be due 35 days from the date the record on appeal was filed. Rule 343(a).²

The required contents of appellant's brief and the rules governing those contents are set forth in considerable detail in Rule 341, and need not be restated here. The main parts of appellant's brief, in order, are: (1) points and authorities; (2) an introductory paragraph; (3) a statement of the issue or issues presented for review; (4) a statement of jurisdiction; (5) statutes involved (if any); (6) statement of facts; (7) argument; (8) conclusion; and (9) appendix. Rule 341(h).

Due to the necessity of individual style and organization, it is difficult to state definitively how a brief should be written. The following is a typical system used by many experienced appellate counsel.

In most cases, the first steps in writing the brief should be (1) to formulate a preliminary statement of issues and (2) to complete of most of the required legal research. Counsel may wish to defer obtaining citations for collateral or incidental points until after the brief is written so as to focus their attention and energies on the principal issues involved. However, it is usually unwise to write any portion of the brief (except the preliminary statement of issues) prior to performing the major portion of the research, since the results of that research will influence the writing of all parts of the brief.

After completing the major part of the research, appellant should rewrite the statement of issues and outline the argument portion of the brief. Note that the statement of issues may need to be refined once again when the brief is complete.

2. Statement of facts. Appellant is now ready to write the statement of facts. In many cases, this is the most important single part of the brief, and should always be done with great care. It is most effective to marshal the facts in chronological order (sometimes called an "integrated" statement of facts), which is usually not the order they happen to appear in the record. Where facts are controverted, the evidence on both sides of the issue should be presented, preferably side by side. Witness-by-witness summaries of testimony are difficult to follow and significantly less helpful to the court.

Each and every statement of fact should be supported by a reference to the record. See Rule 341(h) (6); Rule 315(c)(4). Abbreviations may be used, with the caveat that record references must conform to the Standards and Requirements for Electronic Filing the Record on Appeal. See page 5 of the Standards. The various parts of the record should already be paginated in the correct form.

Avoid extensive direct quotation from the record.

It is essential that the statement of facts be accurate and objective. Rule 341(h)(6); Rule 315(c)(4). While it is, of course, proper to marshal the evidence favorable to your position, pertinent evidence favorable to appellee must be included. Otherwise these facts will be emphasized when brought out by appellee. And one of the most serious (and, unfortunately, most common) violations of the rules is an argumentative statement of facts. The facts must be stated fairly, without adjectives or comments. Save the argument for the argument.

In both the statement of facts and the argument, avoid referring to the parties as "appellant," "appellee," "petitioner," or "respondent." Rule 341(f). Instead, refer to the parties as in the trial court, e.g., plaintiff and defendant (if there is only one), or, better yet, by their actual names or descriptive terms such as "employee," "the railroad," etc. This will make the brief much easier to follow.

3. Standard of review. The rules require appellant to include in its argument a statement of the standard of review for each issue, with citation of authority. Rule 341(h)(3); Rule 315(h). It may be included either in the discussion of the issue in the argument, or under a separate heading. If the statement of the standard of review is not lengthy, it may best be included at or near the beginning of the argument of each issue as a separate paragraph. If lengthy, it should be given its own subsection. Appellate courts routinely reject briefs that do not include standard of review statements.

Sometimes, the standard of review for a particular issue will be debatable or uncertain. Appellant will then argue the point like any other issue. If appellee deems appellant's statement of the applicable standard of review erroneous, incomplete, or otherwise inadequate, appellee can and should brief and argue its position on that point.

Not only is this a sensible requirement - it is impossible to construct an appellate argument except in the context of the standard of review. In fact, many cases are won or lost because of the standard of review.

4. Argument. Next is the argument itself. See Rule 341(h)(7). Ample time must be allocated to this step. It is best to schedule this time, the same as any other appointment, well in advance of the brief's due date. Even a short, simple argument, well written, usually requires no less than a day, and more complex cases can consume a week or two, sometimes more. Sometimes, during the writing of the argument, it is discovered that further legal research is necessary. And, for most lawyers, that "tomorrow" when you will have less to do and more time to work on the brief will never come.

Each of the principal arguments should be headed by a number followed by a heading briefly stating or describing the particular point. That part of the argument may then be further subdivided with headings and subheadings, numbered and lettered in outline form. The same is true of the statement of facts. Liberal use of headings and subheadings is strongly recommended, as this will greatly facilitate the reviewing court's comprehension and interest. It used to be customary for the major headings in briefs to be all capital letters, but that is no longer good form. Just use upper and lower case as you would in a normal sentence. Some use bold type for major headings, but even that is not necessary. See some good examples in the U.S. Seventh Circuit Court of Appeals' Requirements and Suggestions for Typography in Briefs and Other Documents.

It is essential that citations and quotations in the brief be perfectly accurate. Experienced appellate counsel check the final version of their brief against the original sources, as errors inevitably creep in during copying and typing. Errors are distracting and undermine the confidence of the reader in the soundness of the entire work product.

Rule 341(g) provides that citations shall be as provided in Rule 6. The rule's commentary includes examples of Illinois public-domain case citations; note that in these cites, pinpoint...