In appellate law, there is a common saying: “If it’s not in the record, it didn’t happen.” Appellate Courts have disposed of many appeals by ruling that the record was insufficient to properly review the trial court’s judgment. In the event the trial court rules against your client, trial court counsel should take care to ensure there is a record of what happened there, so that appellate court counsel can give your client a second shot. In fact, if you have any thought that your client might want to take an appeal, act now to make sure there will be a record.
The record consists of (a) the pleadings, motions, orders, and judgment of the trial court, known as the “common law record”; (b) transcripts of proceedings that took place before the trial judge; (c) exhibits submitted at evidentiary hearings. Ill. St. Ct. R. 321.
While the common law record is important, normally it is readily available and simple to prepare. Counsel should especially focus on the transcript of the hearings. This applies not just to evidentiary hearings, but even to dispositive motions and post-judgment motions, particularly those that go to the trial court’s discretion. See Webster v. Hartman, 195 Ill. 2d 426 (2001) (affirming trial court’s ruling granting motion to enforce settlement agreement where no transcript of the hearing was provided). It goes without saying that the best and most accurate way of preserving the record is to have a court reporter present at the trial. Failing that, many (but not all!) courtrooms have recording systems from which the hearing can be transcribed if necessary. Find out beforehand whether the courtroom is equipped with that technology. In either case, ask the court reporter to transcribe the proceedings and file them “in searchable pdf format” with the circuit court clerk within 49 days after the filing of the notice of appeal. Ill. S. Ct. R. 323(b).
If neither is available, all is not lost. Rule 323(c) allows for the presentation of a “bystander’s report” of the proceedings. The “bystander” in this case is the trial judge, the same trial judge whose rulings you are appealing. To prepare a bystander’s report, the appellant must prepare a draft report containing all the testimony, objections and rulings thereon, exhibits admitted or rejected, and of course, the ruling of the trial judge. In effect, appellant’s counsel pretends to be an “after-the-fact” court reporter, using notes and memories of the testimony to recreate a detailed summary of the proceeding. Counsel should consult with his or her client, associates, and anybody else who was present at the trial, as well as outlines of the examination, so as much of the trial as possible can be recalled.
An important thing to remember, and to inform your client, is that the bystander’s report is not an opportunity to add evidence to the record or to explain why the other side’s testimony does not accurately reflect the truth. If the other party said something under oath, it must be included even if your client thinks it was completely wrong. Conversely, if something was not said, then it should not be included in the report.
Next, the draft must be sent to the other side within 28 days after the filing of the notice of appeal. Opposing counsel then has 14 days to propose modifications or prepare an alternative bystander’s report. If the two sides can agree that this is an accurate reflection of the trial court proceedings the counsel can file the bystander’s report together with a stipulation signed by both counsel.
More commonly, the parties do not agree. In that case, the proposed report and proposed amendments are submitted within 7 days to the trial judge, who must settle, certify and order filed an accurate report of proceedings. Finally, the bystander’s report is added to the record by the clerk of the court; the procedure for doing that varies by county. In Cook County, exhibits, bystander’s reports, and transcripts are uploaded using the Record on Appeal Submission Portal. All of this needs to be done in time to submit the full record to the Appellate Court within 63 days after the filing of the notice of appeal. Ill. S. Ct. R. 326.
It should be easy to tell that a bystander’s report is the least desirable way of making a record, for several reasons. First, the cost, including the attorney fees to prepare and submit the report to the trial court, are usually going to be higher than the court reporter’s appearance and transcription fees. Second, even the best of us will not remember everything that took place, or misremember exactly what was said, leaving an inaccurate record. Third, both sides will attempt to present a report that is favorable to their own side, and the trial judge may subconsciously do the same in order to protect the ruling. Finally, despite the strict deadlines set forth in Rule 323, the busy schedules of the trial judge and attorneys may result in delays requiring extensions of time to file the record.
If you cannot obtain a transcript, is there any point in making a bystander’s report? Yes! You need to have some indication of what happened below, including the reasoning for the trial court’s ruling. Otherwise, the Appellate Court may simply affirm the judgment, presuming that the trial court ruled in conformity with the law and heard adequate evidence to support its decision. Webster, 195 Ill. 2d at 433-34.
To protect your client’s appeal rights, trial counsel should ensure that a court reporter is present at any hearing that determines the outcome of a case. Pleadings alone are often not enough to fully present the issues to the Appellate Court. Failing that, good notes should be kept as the next best option so an accurate bystander’s report can be prepared. If you sense an appeal may be necessary, contact an experienced appellate attorney to determine the best ways to preserve the record. Doing so will give your client the best chance to succeed on appeal.
You can learn more about the appeals process by reading our FAQs or contacting us to schedule an initial consultation.
