Appellate Law FAQs
If you are considering filing an appeal in your civil or criminal case, or if you have been served with a notice of appeal by the other party in a civil matter, you may have questions about how the appeals process works. Even experienced trial lawyers are likely unfamiliar with the appellate process if they have not personally taken a case on appeal. Below are answers to some basic questions people often have about appealing matters in Illinois courts. For advice and assistance with an appeal in Carol Stream or the greater Chicago area, contact Johnson, Westra, Broecker, Whittaker & Newitt, P.C. for assistance.
Q. Can either party appeal?
A. Yes. Either party can challenge an order or ruling of the court. The person filing the appeal is usually called the petitioner or the appellant, while the other party will be the respondent or appellee. Either the plaintiff or defendant from the original case may be the appellant.
Q. What can be appealed?
A. Any appealable order or ruling can be appealed. This includes not only the final judgment in a case, but can also include rulings on pre-trial or post-judgment motions, rulings or orders.
Q. How do you file an appeal?
A. The first step is to file a “notice of appeal” with the circuit court. Then you prepare and file a petition with the appellate court. You will also need to obtain and file the trial record.
Q. How long do I have to file this notice?
A. The notice of appeal must be filed within 30 days of a final judgment or the disposition of a motion or appealable order. If you are in doubt about when an order becomes final and appealable, make sure you talk to an attorney familiar with the Illinois Rules of Appellate Procedure as soon as the ruling is made. An appeal that is not timely filed will most likely never be heard.
Q. Does the appeals court have to accept my appeal?
A. Some matters are appealable by right, while others are discretionary. The strength of your petition often determines whether your appeal will be heard.
Q. What is a “brief”?
A. The appellate brief is the main document which the judges will use to decide your case. The brief contains your explanation to the court of what the case is about, what errors you believe occurred in the circuit court, and what you want the appellate court to do about it. The entire appeal may be decided on the basis of the briefs submitted; the judges may or may not order oral argument in your case?
Q. What is “oral argument”?
A. This means each side will have a brief period of time to present their arguments orally to the justices, who may ask questions of the attorneys to further clarify points in the briefs or arguments. Usually oral argument is only ordered in a complex case or where there are novel questions of law, and the justices want to hear and discuss the issues. You can also request oral argument for your appeal.
Q. Can I present new evidence at oral argument?
A. An appeal is not a new trial; it is not a chance to re-argue the evidence introduced at trial or to introduce new evidence. The basis for the appeal is that some legal error was committed at trial that justifies changing the decision of the trial court. Examples of such error include the judge giving faulty instructions to the jury, making an incorrect ruling on a motion or objection, allowing inadmissible evidence, or exhibiting bias or an abuse of discretion. Just because you may disagree with the outcome of the case or believe the jury reached the wrong conclusion, this may not be grounds to appeal.
Q. Can the appellate court order a new trial?
A. Yes. Typically the actions of the appeals court will fall into one of three categories: 1) it will affirm, or uphold, the decision of the trial court; 2) it will reverse, or overturn, the decision of the trial court; or 3) it will reverse the decision of the trial court and remand (send) the case back to circuit court for further proceedings, which may include a new trial.
Q. How is an appellate lawyer different from a trial lawyer?
A. Trial lawyers are trial lawyers because they mostly handle litigation and try cases in court, and they have developed expertise at the trial level. Appellate lawyers are lawyers who concentrate their practice in handling appeals, including preparing appellate briefs and arguing before the appeals court. This skills of a trial lawyer typically include the ability to weave the facts of a case into a dramatic, compelling story they present to the judge and jury. The appellate lawyer is skilled at preparing a concise yet persuasive brief that presents the facts and law in a straightforward but also compelling manner. Experienced trial lawyers will seek the assistance of experienced appellate lawyers when an appeal is called for.