Episode 8: March 3, 2025 | Cornered: Michele Jochner Explores Appeals of Family Court Orders

Transcript

00:00:01 Oh, you're an attorney?

00:00:03 I have a friend who was...

00:00:03 I've been meaning to update my will, but I just bought a new house...

00:00:06 So I was wondering...

00:00:06 I want to start a business...

00:00:08 My brother was fired,

00:00:09 And I think we have...

00:00:09 Hey my friend got divorced a while back.

00:00:12 I just don't understand how her ex...

00:00:14 You've been there at a social function, meeting friends of friends.

00:00:18 Word gets out that you're an attorney, and suddenly your night is filled with partygoers asking you, quote, unquote, simple legal questions.

00:00:25 Questions are seldom in your field.

00:00:27 Some of the stuff you haven't thought about since law school.

00:00:30 You're being cornered out of court.

00:00:33 In the Cornered Out of Court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered.

00:00:35 I.

00:00:46 Judgments rendered in family court cases are appealable by the same means and standards as rulings on other types of matters, but the personal nature of legal matters involving families creates other factors the eager appellants may want to consider.

00:01:03 Michelle Jochner is experienced with advising her clients on the nuances, both legal and emotional, that should be taken into account when considering the appeal of decisions impacting visitation, finances and more.

00:01:18 My name is Michelle Jochner and I am a partner at Chicago's Schiller, DuCanto, and Fleck.

00:01:23 An internationally recognized law firm where I handle civil appellate matters that arise from our complex and high asset family law cases. I became a partner at my firm after nearly 16 years of serving as a judicial law clerk to two...

00:01:39 Justices of the Illinois Supreme Court.

00:01:40 The late Honorable Mary Ann G. McMorrow and the late Honorable Charles E. Freeman.

00:01:47 Working with these justices made me keenly aware of what it takes to be on the winning side of appellate cases.

00:01:54 Rock solid legal research, an understanding of the unique rules and procedures of appellate practice, using organized and persuasive writing, employing effective strategy...

00:02:06 And always maintaining credibility with the court. I tap into my many years of appellate experience to help my clients navigate through some of life's most difficult challenges...

00:02:18 And to be the compelling voice to tell their story...

00:02:21 In a way that strongly resonates. I represent my clients in both the Illinois Appellate Court and the Illinois Supreme Court, whether they seek to protect hard-won trial victories or reverse unfavorable rulings.

00:02:34 My enjoyment of legal writing has also resulted in my authoring more than 250 articles appearing in national publications.

00:02:42 I also have taught legal writing and appellate practice to fellow attorneys and to law students.

00:02:49 And have been highly involved in the Chicago legal community throughout my career, serving on the boards of many bar associations, including the Illinois State Bar Association and the Chicago Bar Association, as well as on the boards of several community groups.

00:03:05 I also have chaired the Illinois Supreme Court’s Minimum Continuing Legal Education Board and have led the Dean's Advisory Council at my alma mater, DePaul University College of Law.

00:03:19 When I've just lost my case at trial...

00:03:22 I think the judge was wrong because I should have won.

00:03:25 I've heard of appeals, but I'm not really sure I understand what they are.

00:03:29 Can I file an appeal to get the trial court's decision set aside and ultimately win the case?

00:03:36 Let's first talk through some of the basics of what it means to appeal your decision.

00:03:42 An appeal is a request to a higher court to review a lower court's decision.

00:03:47 You may be able to challenge the trial court's decision if you believe there was a legal or factual error that changed the outcome of the case.

00:03:57 However, it's important to understand that an appeal is not a new trial.

00:04:02 In other words, it is not a do-over where you have the opportunity to present your case all over again in front of a different judge, or to present new evidence or new witnesses.

00:04:14 The appellate court only reviews what happened in the trial court to decide if a legal or factual mistake was made in the original decision...

00:04:24 Such as whether the trial court judge applied the wrong law to the facts of the case or misunderstood those facts.

00:04:32 Accordingly, the appellate court will review the transcripts of the court proceedings that occurred at the trial level, along with the written pleadings, motions, exhibits, and other documents filed by the parties with the court.

00:04:46 It will also closely examine the trial court's orders and rulings, which may be both oral and written.

00:04:54 Now the transcripts, written documents, and the trial court's orders are generally referred to as the record on appeal.

00:05:02 This record is what the appellate court looks at when it decides that the lower court made an error that requires that its decision be reconsidered.

00:05:10 First, the appellate court does not consider anything outside of this record.

00:05:17 In other words, the dye has already been cast.

00:05:21 The only option is for you to show how the trial court made legal or factual errors that require that its decision be reversed.

00:05:31 Now the reality is that an appeal can take months or even years before it is resolved.

00:05:37 And it is often a costly and complicated process.

00:05:42 There are different rules and procedures that must be specifically followed.

00:05:47 In Illinois, these procedures are set forth in the Illinois Supreme Court rules.

00:05:52 It is therefore of great benefit to consult with a lawyer who has experience in appeals to review your case and to help you decide what to do.

00:06:03 And that decision must often be made within a short period of time.

00:06:09 You must file your appeal within only 30 days from the entry of the order.

00:06:17 If you miss that deadline, the appeal will likely be dismissed.

00:06:21 How do I know if my order is appealable?

00:06:25 The threshold question is whether the ruling is final.

00:06:29 You're asking the right question. Generally speaking, you can appeal the trial court's final judgment in a case.

00:06:37 Now this is known as the final judgment rule.

00:06:40 The final judgment is a decision at the end of the proceedings that decides the entire matter.

00:06:46 The final judgment usually says what one or more parties must do, like pay money to the other party or do other things that are ordered by the trial court.

00:06:57 This judgment may be a decision by the judge or by a jury.

00:07:02 In Illinois, all final judgments are appealable to the Illinois Appellate Court.

00:07:07 Now the final judgment rule means that in most instances, decisions made by the trial court before a final judgment cannot be appealed right away.

00:07:18 Usually, these decisions can only be reviewed as part of an appeal of the final judgment.

00:07:24 That means that you may need to wait many months, sometimes longer, before you can seek review of those rulings.

00:07:29 However, there are some exceptions to this rule.

00:07:37 For example, in family law matters, many of the orders made in the case can be appealed right away, even if they are made before a final judgment.

00:07:47 I practice in the family law area, so I can speak a bit more to these types of orders that fall within this exception.

00:07:55 Due to the fluid situation faced by many family law attorneys, we practice in a world of orders that are often temporary in nature until such time as a final decision can be entered.

00:08:08 Technically, these orders are referred to as interlocutory orders.

00:08:27 Again, although generally appeals are taken from final judgments, the rules of practice enacted by the Illinois Supreme Court provide for appellate review to consider non-final orders.

00:08:37 In certain circumstances where the ruling is very time-sensitive and requires more immediate attention, such as where injunctive relief is granted.

00:08:52 Such appeals are also expedited, meaning that the timelines are compressed for both the briefing and the decision.

00:08:56 The rules also allow a party to ask for immediate review where the order affects the care and custody of children.

00:09:07 Underscore the word "ask" because in these situations, the appellate court may exercise its discretion in deciding whether it will hear the appeal right away.

00:09:12 Or whether it will wait until a final decision is made.

00:09:17 So start by understanding exactly what type of order was entered.

00:09:18 And be sure that appellate jurisdiction exists to review that order under the applicable rules.

00:09:27 How do I know if my order is worth appealing?

00:09:30 Although an order or a ruling may be appealable...

00:09:34 That does not automatically mean that you should file an appeal.

00:09:40 To be clear, not every loss is worth appealing.

00:09:44 And you should perform a very detailed and objective analysis of several factors before proceeding forward.

00:09:53 First, it is important to consider the standard of review that applies to your case and whether it works for or against your position.

00:10:01 A person taking an appeal stands in the strongest position...

00:10:06 If a pure issue of law can be raised.

00:10:10 This is subject to something called de novo review, where no deference is given to the trial court's decision.

00:10:19 It's as if the appellate court has a clean slate upon which to decide the legal issues.

00:10:25 Now, on the other hand, a person taking an appeal is in the weakest position...

00:10:37 If the claim of error is one where the trial court abused its discretion.

00:10:40 In these cases, the most deference is afforded to the trial court's ruling.

00:10:51 For example, in a family law context, this deferential review standard is applied to a trial court's decision on the award of spousal maintenance.

00:10:57 It is a heavy burden on the person taking the appeal to prove this type of mistake.

00:11:01 And it is quite difficult, but not impossible, to win such an appeal.

00:11:03 So you must understand the standard of review, especially where it means that the appeal does not start out on a level playing field due to the differences in deference...

00:11:14 That is accorded to the trial court's judgment.

00:11:17 This is why unique counsel, who is experienced in appellate practice, is crucial.

00:11:22 Second, you should also understand that taking an appeal of a portion of a ruling...

00:11:28 Could be the catalyst for the opposing party to file their own request for cross-relief on other parts of the judgment that were decided in your favor.

00:11:47 By putting the trial decision in play, the other side could ultimately have the favorable aspects of the decision overturned.

00:11:52 And you could be in an even worse position than prior to the appeal.

00:11:59 Make a risk assessment as to what potential issues could also be raised by the other side...

00:12:00 And the likelihood of success if that should occur.

00:12:02 Third, I'll ask you, did you have a court reporter at your hearing or your trial?

00:12:18 Transcripts are the bedrock of an appeal.

00:12:20 Having a court reporter attend and transcribe the proceedings can be very costly.

00:12:25 Sometimes a court will have an automatic electronic means of recording the proceedings...

00:12:26 But you still need to pay for the transcription if you wish to appeal.

00:12:30 The lack of transcripts will likely result in an unsuccessful appeal.

00:12:34 As the person taking the appeal has the responsibility to ensure that the record contains a report of proceedings that includes all the evidence that's pertinent to the issues that you're raising.

00:12:50 When the transcript is missing...

00:12:57 The appellate court presumes that the trial court followed the law and had a sufficient factual basis for its ruling.

00:13:03 In other words, any doubts due to the incompleteness of the record are resolved against you.

00:13:05 Last but not least, you should perform a detailed and objective cost-benefit analysis...

00:13:11 To determine whether an appeal will be of actual benefit.

00:13:15 For example, will the cost of the appeal wipe out any potential financial benefit you can obtain from a victory?

00:13:24 Or will the additional months, perhaps years of litigation, be something that you can financially and emotionally handle?

00:13:30 If the appeal concerns a family law issue and you have children...

00:13:35 What impact will the appeal and the continued litigation have on them?

00:13:41 Also be aware that you must pay a fee to the Circuit Court clerk for the preparation of the appellate record.

00:13:58 And in some instances, you may also be on the hook for the other side's attorneys' fees in defending the appeal, as well as your own.

00:14:04 This type of fee shifting can often occur in family law cases.

00:14:12 So you must honestly consider whether you have the time, money, and ability to go through the process.

00:14:20 It's a complicated one with many steps.

00:14:25 Does the filing of an appeal stop enforcement of the trial court's order?

00:14:29 In most cases, the answer is no.

00:14:32 Generally, unless you ask the trial court...

00:14:36 Or the appellate court to postpone the enforcement of the trial court's decision...

00:14:39 Which is known as a stay...

00:14:45 You must do what the trial court's order requires you to do during the appeal.

00:14:54 A request for a stay can be complicated, and if a money judgment is involved, you may be required to still pay the money ordered by the trial court up front.

00:15:05 In the form of a bond that is held by the court until the appeal is concluded.

00:15:10 Realize as well that by filing the appeal and posting a bond...

00:15:14 You're depriving the winning party of the use of the award until the appeal is concluded.

00:15:20 For example, the party could have invested the money during that period and reaped the gains during that time.

00:15:27 To compensate that party for the loss of the time value of money, the amount of the bond will be more than the judgment.

00:15:30 Because it must take into account the statutory rate of interest, which in Illinois is 9 percent.

00:15:42 For a period during which the appeal may be pending, and the standard used in Illinois is two years.

00:15:50 So for example, if the money judgment is $10,000, the bond that must be posted is $11,800.

00:15:59 In most instances, if you can't post the bond, the judgment will not be stayed and the other side can seek to collect on it while your appeal is pending.

00:16:09 Now remember, an appeal is usually not a way to put off having to comply with the trial court's order.

00:16:18 What happens during the appellate process?

00:16:22 A lot of things happen. You can't take an appeal just because you don't like a decision of the trial court.

00:16:28 We've discussed that there must be a legal basis for the appeal.

00:16:32 We've also discussed that you must make an honest assessment of the ruling and of the record.

00:16:38 We've also talked about the fact that the only thing that the appellate court reviews is that record, which includes all of the documents filed in the case, as well as transcripts of the testimony and any exhibits that were presented.

00:16:51 You will need to ask that the clerk of the Circuit Court prepare that record and pay a fee for that service.

00:16:58 After the record is prepared, you will then turn to the briefing stage of the appeal.

00:17:03 Now the briefs are the single most important part of the appellate process.

00:17:10 The record on appeal provides the appellate court with a picture of what occurred in the trial court.

00:17:19 But it is the arguments in the briefs that explain whether or not there was a legal or factual error in those proceedings, and whether it changed the outcome of the case.

00:17:27 The brief guides the appellate court through the case and uses the record and legal authority to support any claims that the trial court erred.

00:17:43 The authority that you can rely on includes prior appellate and Supreme Court case law decisions, statutes, court rules, and treatises.

00:17:57 Because of the specialized knowledge necessary for writing a good brief, the briefs are also by far the most difficult, time-consuming, and costly part of the appellate process.

00:17:59 In Illinois, each party may submit a brief up to 50 pages in length.

00:18:12 And if the case is complex in nature, it is easy to reach that limit very quickly.

00:18:19 Then there may or may not be an oral argument before the appellate panel, which consists of three justices in Illinois.

00:18:24 The court may decide whether it wishes to call the case for an oral argument.

00:18:29 If it does, during the argument, you have the opportunity to clarify points that were made in the brief.

00:18:31 To tell the appellate court what you think is most important about your arguments and answer any questions that the appellate court judges may have.

00:18:42 Now, oral argument is not a time to simply restate the facts of the case or repeat parts of the brief.

00:18:51 Because the judges are already familiar with that.

00:18:57 Instead, it allows the opportunity to make sure that the court understands the key issues of your case, by highlighting what you think is most important.

00:19:01 In Illinois, both parties generally have 20 minutes to present their case.

00:19:05 With the party seeking the appeal having up to an additional 10 minutes in rebuttal.

00:19:12 It is good to look at oral argument as an opportunity to engage the justices in a conversation about your case.

00:19:31 And answer any questions that they may have.

00:19:35 What happens after the appeal?

00:19:38 If you lose the appeal and you disagree with the court's decision, you have the option of asking an even higher court of review to look at your case.

00:19:50 In Illinois, that is the Illinois Supreme Court.

00:19:52 However, that court has discretion to turn down requests for an appeal.

00:19:56 Taking only those cases that meet certain criteria, including presenting issues of first impression...

00:20:04 That have not previously been addressed by Illinois courts of review, or issues that have split the districts of the appellate court.

00:20:13 And now require that the Supreme Court step in and harmonize the law for the entire state.

00:20:20 The process requires another round of briefing...

00:20:24 To convince the Supreme Court to take the appeal.

00:20:27 If you do that, then yet another briefing round occurs on the issues that make up your appeal in the Supreme Court.

00:20:36 Now, on the other hand, if you won the appeal...

00:20:40 Generally, in civil cases, that means that the reviewing court either vacated the trial court judgment or it reversed that judgment.

00:20:50 Most often, the case will be returned to the trial court for further proceedings that are consistent with what the appellate court said in its decision.

00:20:58 The relief can range from the appellate court requiring the trial court to conduct...

00:21:05 A full new trial...

00:21:07 To making the trial court change only certain parts of its prior order.

00:21:12 Therefore, the opinion that you receive from the appellate court provides the road map for the next steps back in the trial court after the appeal.

00:21:23 Thank you, Michelle.

00:21:25 Michelle Jochner is a partner at Schiller DuCanto & Fleck, a firm that handles all types of family law matters...

00:21:34 Including those that have unique circumstances, such as families that have LGBTQ-identifying individuals...

00:21:40 Households confronting domestic violence, and high-profile family members in entertainment and sports.

00:21:47 If you have an idea for a topic you would like to hear discussed on the Cornered Out of Court podcast, we welcome your suggestions by email.

00:21:55 Our address is info@iicle.com

00:22:00 IICLE is a 501(c)(3) not-for-profit based in Springfield, IL.

00:22:07 We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of the law...

00:22:16 With generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

00:22:25 If you are interested in our many authorship and speaking opportunities, please give us a call at 217-787-2080

00:22:30 Or sign up for the IICLE volunteer network at iicle.com/volunteer

00:22:40 Thank you for joining us for another edition of Cornered Out of Court, brought to you by the Illinois Institute for Continuing Legal Education.