Heyl Royster

 

Practices

APPELLATE ADVOCACY

Full-service legal representation requires not only skilled trial attorneys to guide your case through the trial court, but also attorneys experienced in appellate practice to help navigate the complexities of the appellate process.

Knowing when and how to appeal a decision from a trial court or how to respond to an opponent's appeal requires skills and experience significantly different from those used before the trial court.

Because of the specialized nature of appellate practice, Heyl Royster provides a separate appellate advocacy team staffed by lawyers skilled in appellate practice. This team includes lawyers with over 40 combined years of practice focused on appellate advocacy. Attorneys in the group bring further expertise to the handling of your appeal with sub-concentrations in substantive areas of the law, such as medical malpractice, workers' compensation, and federal civil rights law.

Comprehensive appellate services offered by the practice group:

The Appellate Advocacy Team not only handles all aspects of an appeal including establishing appellate jurisdiction, notices of appeal, drafting briefs, selection of issues for appeal, and oral argument but also has extensive experience in pre-appellate matters, such as:

  • consulting on trial strategy
  • researching and drafting significant or complex dispositive motions
  • preparing jury instructions
  • preparation of post-trial motions
  • evaluating prospects for appellate success
  • appeal and surety bonds
  • appellate motion practice
  • interlocutory petitions and extraordinary writs
  • Heyl Royster's appellate attorneys are available to help you with your appellate needs, whether consulting with trial attorneys to formulate the best trial and appellate strategy, evaluating appeal options, or handling the entire appeal.

Why hire experienced appellate counsel?

Using experienced appellate counsel is an essential step in the successful handling of an appeal. Appellate attorneys provide unique expertise and familiarity with appellate rules and procedures and offer a fresh perspective on the case. While trial attorneys are experts in marshalling facts, presenting evidence, and persuading juries, appellate attorneys employ their skills at research and writing to help craft issues and formulate arguments to maximize your opportunity for success on appeal. Experienced appellate counsel help by selecting only the most significant issues for appeal and then presenting those issues for consideration in a concise, coherent manner, in both written and oral argument.

Our diverse experience includes appeals of cases tried by our firm in the trial courts, as well as cases tried by others, where our involvement begins at the appellate level. Clients frequently refer cases to us regardless of whether they are the appellant or appellee, confident that we have total familiarity with the complex appellate rules and procedures, and that our staff includes appellate advocates well-skilled in the persuasive analytical writing and speaking so necessary to prevail in the appellate arena.

Professional distinctions:

Our Appellate Advocacy Team has significant experience and involvement in professional associations.

Craig Unrath, the Practice Group Chair, is a past President of the Illinois Appellate Lawyers Association (2007-08) and has been recognized as Top Lawyer in Illinois in the area of Appellate Practice, and an Illinois "Super Lawyer". He is a member of the DRI and serves on the Amicus Committee for the Illinois Association of Defense Trial Counsel (IDC). He is also a member of the American Bar Association's Tort and Insurance Practice Appellate Section.

Brad Elward is past President of the Illinois Appellate Lawyers Association. He has been recognized as an Illinois "Super Lawyer" in Appellate Practice since 2008 and is a member of the Illinois Association of Defense Counsel (IDC), where he is the Editor-in-Chief of the Quarterly publication, and formerly authored the Appellate Practice Column of the IDC Quarterly. Brad is the Co-General Editor of the Illinois Institute of Continuing Legal Education (IICLE) volume on Illinois Civil Appeals, State and Federal, and is a frequent author and speaker on appellate issues.

The Appellate Practice Group has also been asked to write several amicus briefs before the Illinois Supreme Court for the Illinois Association of Defense Trial Counsel. These cases include:

Interstate Scaffolding, Inc. v. Workers' Compensation Comm'n, 236 Ill. 2d 132, 923 N.E.2d 266 (2010) (an employer owes total temporary disability benefits for that period of time when the employee is not at maximum medical improvement even where the employee is terminated for violating company rules).

Karas v. Strevell, 227 Ill. 2d 440, 884 N.E.2d 122 (2008) (complaint for negligence for injury to high school hockey player dismissed against opposing hockey players, officials, and hockey association).

Smith v. Illinois Central R.R. Co., 223 Ill. 2d 441, 860 N.E.2d 332 (2006) (refusal to certify class action in train wreck litigation because common issues of fact and law did not predominate).

Recent Wins

Reeder v. Auto Owners Ins. Co., 2016 IL App (3d) 150252-U, the Third District Appellate Court affirmed a trial court's order granting summary judgment in favor of defendant in a case where plaintiffs claimed they were entitled to coverage under an insurance policy issued to the prior owner of car. The appellate court found that, following the sale of the car, the prior owners had no insurable interest in the vehicle. In addition, the court found that the omnibus clause of the policy could not be interpreted as offering coverage to the purchasers of the car.

In Bond v. Walsh, 2015 IL App (4th) 150015-U, the Appellate Court, Fourth District, affirmed the circuit court's dismissal of the plaintiff's complaint based on the existence of a previously filed pro se complaint that had not been properly dismissed. The plaintiff Bond had filed a pro se complaint alleging violations of the Illinois Domestic Violence Act against several Champaign County deputies. The complaint was never served. The pro se litigant moved to voluntarily dismiss that complaint, but never called the motion for hearing. She then obtained counsel and filed a federal complaint against many of the same defendants, raising claims under federal constitutional law and re-asserting the claims under the Domestic Violence Act. When her federal claim was dismissed, she refiled her Domestic Violence Act claims in state court and added additional defendants, which drew a section 2-619(a) motion to dismiss by the defendants.

The circuit court granted the motion, which was upheld by the appellate court. The appellate court found that the prior pro se complaint had never been dismissed and that it involved the same parties, even though there were additional defendants added to the refiled claim. The court found that the named defendants in both filings had sufficiently similar interests to qualify as the "same defendants" even though some were different. Moreover, the court concluded that the refiled case constituted "multiple claims," which the dismissal provision was designed to remedy. Finally, the court concluded that any prejudice the plaintiff faced by having to resort to her previously filed pro se complaint – namely, that she could not now pursue claims against some of the defendants due to the expiration of the statute of limitations – were of her own making.

In Bowman v. Ottney, 2015 IL 119000, the Illinois Supreme Court ruled that a voluntary dismissal and refiling of a cause of action did not "reset the clock" with respect to the substitution of a judge who previously made substantial rulings in the prior litigation. The plaintiff had filed a medical malpractice claim, which was assigned to Judge David Overstreet. During the litigation, the judge made several substantive rulings, some of which involved the disclosure of expert opinions. The plaintiff moved to voluntarily dismiss the original complaint, and refiled the action as a new matter. The case was assigned to the same judge. In the re-filed case, the plaintiff moved for substitution of judge as a matter of right, which Judge Overstreet denied on the basis that he had made substantial rulings in the previously-filed litigation. The parties appealed a certified question and the appellate court affirmed.

The Illinois Supreme Court held that Judge Overstreet properly exercised his discretion in denying the motion to substitute judge filed in the second case because he had made substantial rulings in the prior case. According to the Court, the language of the statute empowering a party to seek substitution of judge (735 ILCS 5/2-1001) was broad enough to refer to all proceedings between the parties involving the same cause of action in which the judge has made substantial rulings.

Zimmerman v. Doran, 807 F.3d 178 (7th Cir. 2015), the Seventh Circuit Court of Appeals affirmed the district court's order granting summary judgment in favor of defendants in a case where plaintiff claimed his constitutional rights were violated due to an alleged false arrest and deprivation of property without due process. The Court of Appeals found that the officers had probable cause to arrest plaintiff for trespassing, were entitled to qualified immunity, and did not violate plaintiff's substantive due process rights. 

Listed below are some of the areas of appellate practice where we are most active:

  • Asbestos and complex products liability
  • Amicus curiae representation
  • Civil rights and municipal law
  • Employment law
  • Emergency stays of judgment and enforcement proceedings
  • Evaluation of potential appeals
  • Federal appellate practice
  • Insurance coverage and general insurance defense
  • Interlocutory appeals
  • Professional malpractice
  • Workers' compensation

Seminars and Speaking Engagements

"Using Interlocutory Appeals in Your Case,” Winnebago County Bar Association (2015)

“Stays, Bonds and Sureties,” Illinois Appellate Practice Institute-Chicago, IICLE (2015)

“Appellate Issues in Workers' Compensation Cases Affecting Governmental Employers,” The Crossroads of Governmental Law, Workers' Compensation & You, Heyl Royster Fall Seminar (2015)

“Better Briefs and Oral Arguments," Advanced Appellate Practice Seminar, Peoria County Bar (2015)

“Administrative Appeals for Governmental Lawyers,” Peoria County Bar Association (2015)

“Workers Compensation Appeals,” Sterling Education Services (2015)

“Judicial Reviews to the Circuit Court,” ALA Administrative Seminar (2014)

"Workers' Compensation Appeals to the Commission, Circuit and Appellate Court," Winnebego County Bar Association (2011)

"Recent Changes and Developments in Illinois Workers' Compensation Appeals/Recent Cases," IDC Fall Seminar (2011)

"Oral Argument Tips and Strategies," Illinois Appellate Lawyers' Association Seminar (2010) 

"Petitions for Rehearing and Petitions for Leave to Appeal," Illinois Appellate Lawyers' Association Seminar (2010)

Representative Clients

Admiral Insurance Company

Advantage Logistics

BroMenn Healthcare

Catholic Diocese of Peoria

Cincinnati Insurance Companies

Correctional Healthcare Companies, Inc.

Dot Foods

G & D Trucking

Henkels & McCoy, Inc.

Kraft Foods, Inc.

ISMIE Mutual Insurance Company

Liberty Mutual Insurance Company

ProAssurance Company

Martin Boyer Company

McLean County

Mitsubishi Motors of North America

St. John's Hospital, Springfield

St. Mary's Hospital, Decatur

Star Transport

Travelers Insurance

University of Illinois

Significant Cases

  • Bowman v. Ottney 2015 IL 119000 - Successfully defended circuit court ruling to deny the plaintiff's motion for substitution of judge in a refiled case, when same judge had made substantive rulings in prior litigation that had been voluntarily dismissed.
  • Petitioner v. Public School District (4th Dist. 2014) Defended a Public School District in the Fourth District Appellate Court in which the court found in favor of the Public School District in striking down a Human Rights Commission's ruling on a discrimination claim. In the original action, the petitioner filed a discrimination claim with the Human Rights Commission alleging that the school district should have placed him on an eligibility list for substitute teaching assistant or substitute office worker. The Human Rights Commission found that the applicant was discriminated against based on his gender because the school district did not place him on the eligibility list for substitute office worker. To remedy the alleged discrimination, the Commission ruled that the applicant should be placed on the substitute office worker eligibility list for one year with a right-of-first-refusal. Despite a difficult manifest weight standard, the firm successfully obtained an order vacating the Commission's decision, finding that the applicant failed to show the necessary elements of a prima facie case.
  • Certain Underwriters at Lloyd's London v. Central Mutual Insurance 2014 IL App (1st) 133145 (2014) Representation of Central Mutual Insurance Company (Central) and its insured (Subcontractor) in a case in which the general contractor (Builder) and its insurer, Certain Underwriters at Lloyd's London (Underwriters) claimed that Central should have been the primary insurer in regard to coverage for severe personal injuries that allegedly occurred to a worker at a home construction site. The dispute arose because, although the subcontractor was contractually obligated to maintain insurance for the builder, the subcontractor agreement was silent as to whether this additional coverage was to be primary or excess. At the trial court level, the firm succeeded in getting Underwriter's declaratory action dismissed on motion for summary judgment, and Underwriters appealed. On appeal, the first district agreed with the firm in holding that Central's insurance would be considered excess and there would be no duty to defend or indemnify unless the primary limits were exceeded.
  • Mwesigwa v. DAP, Inc. 637 F.3d 884 (8th Cir. 2011) Successfully defended appeal of order granting motion for summary judgment in products liability case. Held: The Federal Hazardous Substances Act preempts state cause of action that would impose a labeling requirement different from the requirements in the FHSA. FHSA did not require manufacturer to warn of risk of fire from accidental spill, or warn against spreading product after spill.
  • Armstrong v. Guigler 174 Ill. 2d 281 (1996) Where the Illinois Supreme Court held that a five-year statute of limitations for breach of implied fiduciary duty applied to the case rather than a 10-year statute of limitations for actions on a written contract.
  • Mount Zion State Bank & Trust v. Consolidated Communications, Inc. 169 Ill. 2d 110 (1995) Open and obvious danger rule. Obvious dangers, from which premises owner or occupier is not required to protect children, include fire, drowning in water, or falling from height.  The doctrine applied to bar a claim filed for injury to a six-year old who climbed over a fence using a pedestal next to a power company pole.
  • Bubb v. Springfield School Dist. 186 167 Ill. 2d 372 (1995) Tort immunity.  A schoolgirl was injured when she rode her bicycle off of sidewalk surrounding school onto grass and sued school district.  The Supreme Court reversed the denial of summary judgment and held that statutory recreational immunity applied if property was intended or permitted to be used for recreational purposes, regardless of its primary purpose, and school property at issue fell within statutory immunity provision.
  • Patton v. Carbondale Clinic, S.C. 161 Ill. 2d 357 (1994) The Supreme Court held that the plaintiff suffered two distinct injuries, one from accident and one from allegedly negligent medical treatment, and thus defendant clinic was not a joint tortfeasor with driver and vehicle manufacturer. The court also held that the clinic was entitled to set off amount paid by driver in settlement of separate suit arising out of accident that the clinic was entitled, to set off entire amount of settlement paid by vehicle manufacturer.
  • Miller v. Gupta 174 Ill. 2d 120 (1996) Medical malpractice/spoliation of evidence.
  • Glass v. DOT Transportation, Inc. 393 Ill. App. 3d 829 (1st Dist. 2009) In the forum non conveniens setting, deference may be given to the selection of forum by a representative plaintiff, who is also a beneficiary under the Wrongful Death Act.
  • Cookson v. Price 239 Ill. 2d 339 (2010) A medical malpractice plaintiff may be granted leave to amend a complaint to correct defects resulting from a failure to comply with statute requiring a section 2-622 affidavit of merit where the complaint does not appear to be frivolous, even where the new report is substantially different than the original report.
  • Rosewood Care Center, Inc. v. Caterpillar, Inc. 226 Ill. 2d 559 (2007) Illinois does not recognize a preexisting debt rule when interpreting the statute of frauds, but rather applies a "main purpose" or "leading object" rule, which states that when the main purpose or leading object of the promisor/surety is to subserve or advance its own pecuniary or business interest, the promise does not fall within the statute of frauds.
  • Bush v. Catholic Diocese 351 Ill. App. 3d 588 (3d Dist. 2004) A party has no First Amendment right to disseminate information obtained and gathered in preparation for trial.
  • Gridley v. State Farm 329 Ill. App. 3d 422 (5th Dist. 2002), rev’d, 217 Ill. 2d 158 (2005) Forum non conveniens doctrine applied to support dismissal of class action suit filed in Illinois, where plaintiff and actions giving rise to claim occurred in Louisiana.
  • Chaney v. Yetter 315 Ill. App. 3d 823 (4th Dist. 2000) Client of borrowing employer was entitled to protection of exclusive remedy provisions of Workers' Compensation Act for claim filed by borrowed employee.
  • Craigmiles v. Egan 248 Ill. App. 3d 911 (4th Dist. 1993) Appellate court's prior order refusing to grant leave to appeal of order granting new trial did not have preclusive effect on ability to raise issue in subsequent appeal.

Publications

  • "Appellate Court Rejects Petitioner's Attorney's Fees Claim as to Future Medical Benefits Suspended by Virtue of Third-Party Judgment," Illinois Defense Counsel Quarterly (2016) - Download Article
  • "Preserving Error For Appeal" chapter in Civil Appeals (Illinois): State and Federal, Illinois Institute for Continuing Legal Education (2015)
  • "Appeal Bonds and Stays of Judgment" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education
  • "Interlocutory Appeals of Certified Questions" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education
  • "Workers' Compensation Appeals" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education
  • "Motion Practice" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education
  • "Direct Appeals to the Illinois Supreme Court" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education
  • "Motions for Supervisory Orders and Mandamus" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)
  • "Interlocutory Appeals of Certain Orders" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)
  • "Recent Cases Emphasize Need for Reform with Section 19(f) Appeal Bonds in Workers' Compensation Judicial Reviews," Illinois Defense Counsel Quarterly (2014) - Download Article
  • "A Chip Off the Old Block: Familial DNA Searches and the African American Community," Minnesota Journal of Law & Inequality (2011)
  • "Rule 315(a) Petitions for Leave to Appeal: A Practice Primer," Illinois Defense Counsel Quarterly (2009) - Download Article
  • "Evaluating Your Case for Appeal," Illinois Defense Counsel Quarterly (2008) - Download Article
  • "Supreme Court Rule 306(a) Interlocutory Appeals Are Not Tolled By the Filing of a Motion for Reconsideration," Illinois Defense Counsel Quarterly (2007) - Download Article
  • "Workers' Compensation Appellate Procedures," ABA Committee Newsletter (2007)
  • "Preserving Error For Appellate Review," Illinois Defense Counsel Quarterly (2006) - Download Article
  • "Appellate Motion Practice," Illinois Defense Counsel Quarterly (2005) - Download Article
  • "Amicus Curiae Briefs" DRI Manual of Appellate Practice (2004 ed.)
  • "Appeal Bonds in Civil Cases - Recent Rule Modifications," Illinois Defense Counsel Quarterly (2004) - Download Article