Frequently Asked Questions On Illinois Appellate Practice
By: Philip J. Piscopo
Storm & Piscopo, P.C.
Q. What laws or rules describe the appeal process?
A. Supreme Court Rules 301 through 384 govern appeals from trial court decisions in civil cases. Rules 601 through 651 govern criminal appeals. Many, but not all, of the criminal rules, are the same as civil appeals. The most important differences are the form of the Notice of Appeal (Rule 606(d)) and appeals from guilty pleas (Rule 604(d)).
Q. How do I file an appeal?
A. You file a Notice of Appeal in the trial court (not the appellate court). Make sure the notice says what trial court order you want the appellate court to review.
Q. When may I file an appeal?
A. In most cases, you may file a Notice of Appeal within 30 days after the trial court’s judgment in both civil cases (Rule 303) and criminal cases (Rule 606(b)). If you file a post-trial motion, the 30 days begin to run when the trial court resolves the last post-trial motion. See my article on when a judgment is “final” for purposes of appeal. Once the 30 days pass, you usually may no longer appeal, so we recommend filing a Notice of Appeal even if you are unsure whether you or your client wants to appeal.
In some cases, you may file a Notice of Appeal even if the case is not final. The most common of these is an injunction, whether it is granted or denied. (Rule 307) The rules, including deadlines, for these appeals, can be very different from ordinary cases, so you should contact us right away so that we can determine which rule applies.
Q. What needs to be done after I file the appeal?
A. A docketing statement (Rules 312 and 606(g)) needs to be filed, which tells the court what the case is about. Then the record, including the court file, exhibits and trial transcripts, needs to be prepared (Rules 321 and 608) and delivered to the appellate court, generally 63 days after filing the Notice of Appeal. We then prepare the briefs: an opening brief by the party appealing, a brief by any other party and a short reply brief. The briefing schedule normally takes 84 days.
Q. May that time be extended?
A. Yes, if the appellate court allows it after you file a motion.
Q. I have a case that is still in the trial court. How do I make sure my issues will be considered on appeal?
A. You need to make sure the record contains all the information the appellate court needs to decide the appeal, including what you asked the trial court to do, what supports your request and what the trial court did. For example, if you think the trial court should have heard certain evidence, you must make an “offer of proof,” in which you tell the trial court what the evidence would have been and why it should be admitted. If your appeal is from a jury verdict in a civil case, you also need to first file a post-trial motion under Section 2-1202 of the Code of Civil Procedure and include in your motion all issues you want the appellate court to consider. In a criminal case, you need to file a timely post-trial motion under Section 116-1 of the Code of Criminal Procedure in both jury and nonjury cases. If you leave an argument out, the appellate court will not consider it (Rule 366(b)(2)).
Q. How long does an appeal take?
A. In our experience, cases are decided roughly six to nine months after the reply brief is filed. The 1st District (Cook County) usually takes more time because it has more cases. The appellate court will sometimes ask for oral argument.
Q. I have a child custody case. Can it be decided more quickly?
A. Yes. In 2004, the Illinois Supreme Court enacted Rule 306A, which shortens the time for the appellate court to decide the case to 150 days. In the 2nd District, which includes Kane and DuPage counties, the record is filed, and the briefing schedule is to be completed within 84 days after filing the Notice of Appeal. The 1st District has a similar schedule. This helps ensure that child custody decisions are decided quickly and fairly.
Q. I lost in the appellate court. What now?
A. You may file a Petition for Rehearing within 21 days of the decision under Rule 367. We have found that this is a good option when there is a specific part of the court’s ruling that is unclear. You may also ask the Illinois Supreme Court to hear the case by filing a Petition for Leave to Appeal within 35 days after the appellate court’s decision (this time is extended if you file a Petition for Rehearing). Most of the time, the Illinois Supreme Court does not have to hear the case, but you should still consider the option if the case raises novel questions or if the appellate court disagreed with another court on an important issue.
© 2008 by Philip J. Piscopo