Appeals

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No matter how thorough the trial preparation and how skilled the Illinois divorce lawyer, at times a party in a high-stakes case is dissatisfied with the results and wants to appeal. Trial judges are not perfect and can make mistakes; at other times, one of the parties refuses to accept the trial court’s final decision. In either case, the litigant who received the unfavorable ruling has a right to have that ruling examined by a three-judge court of review.

Skilled, experienced attorneys, such as the metropolitan Chicago divorce attorneys of Schiller DuCanto & Fleck, know from the very first meeting with a client that they must prepare the case as if it will be appealed. While such a mind-set might, at first glance, appear to reflect a defeatist attitude, the reality is just the opposite.  Because the only information the appellate court may use in its review is the information that was presented to the trial judge, making sure the record contains every document and piece of testimony necessary to present the party’s case is just as crucial to a successful appeal as it is to the trial. The only items the appellate court is allowed to consider when assessing a challenge to a trial court order or judgment are the pleadings, motions, memoranda, testimony and exhibits that were before the trial judge. No new documents are allowed. No additional testimony is permitted. Whether the client is the party who wants to change the trial court’s decision (the appellant) or preserve it (the appellee), the task of the appellate attorney is to demonstrate that the record on appeal supports his or her client, whether appellant or appellee.

Generally, a party must wait to appeal until the end of the case after the trial court enters a final judgment. Certain types of appeals, however, may be taken before the entire case is over. A final decision on the issue of child custody, often entered before the litigation on property division or family support even begins, may be appealed immediately, as are injunctions barring a party from taking some specific action and rulings holding a party in contempt of court for disobeying a court order. Decisions holding premarital or post-nuptial agreements enforceable or not enforceable may be appealed before the end of the case if the trial court agrees to allow the early appeal. Finally, rulings on the court’s jurisdiction to hear a case and orders on visitation, temporary custody, parentage, or other issues concerning children may be appealed with the permission of the appellate court.

The process of an appeal begins with notice to the court and to the opposing party that a Notice of Appeal has been filed. The appellant is responsible for filing the record in the appellate court, following which he or she writes the initial brief that describes the facts brought out at trial and presents arguments supported by legal authority to convince the appellate court that the trial court decision was in error.  The appellee’s brief refutes those arguments, also with legal authority. Finally, the appellant may file a short reply brief rebutting the appellee’s arguments. While most appeals are decided solely on the briefs filed, some are called for oral argument, at which the attorneys appear before the three-judge court, argue their positions, and respond to questions from the court. The appellate decision is issued in writing usually two to six months later.

Schiller DuCanto & Fleck LLP has Chicago area attorneys whose primary focus is handling the prosecution and defense of appeals from cases tried by attorneys both within and outside the firm. The appellate team at Schiller DuCanto & Fleck has over forty years of combined appellate experience, has handled hundreds of appeals, and has appeared before every Illinois state and federal reviewing court.  More important Schiller DuCanto & Fleck is well skilled at presenting convincing evidence and making arguments to the court on all aspects of appeals. How well the message is delivered is of equal or greater importance than the substance of the message itself.

 

 

 

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