CBA Record November 2015

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CBA RECORD 29
The right to appeal later is not waived if
a party fails to file an appeal following any
of the interlocutory orders under Rule 307.
Rule 308
Rule 308 covers questions of law when
substantial grounds for difference of opin-
ion exist and the resolution may materially
advance the termination of the litigation.
This rule is patterned after Rule 1292(b)
of the Federal Rules of Civil Procedure.
The question of law must involve an
issue that is one of first impression or
where the districts of the appellate court of
Illinois have split in deciding the issue. But
even where a question does meet the rule’s
criteria, resolution of the question must
also materially advance the termination
of the litigation. Thus, if the question is
decided, it must at least narrow the issues
or, perhaps if summary judgment is filed
following resolution of the question, it may
terminate the case.
Rule 308, like 304(a), requires a special
finding or certification by the trial court
that a question for appeal that a party is
posing meets the requirements of Rule
308. This certification can be part of the
original order or can be sought by motion
thereafter. However, unlike 304(a), the trial
court does not have the ultimate say as to
whether the matter should be appealed.
Once the trial court certifies a question
under rule 308, a party must file an appli-
cation to the appellate court (as in a Rule
306 appeal), asking the appellate court to
accept the appeal. Thus, rule 308 involves
a two-step process: (1) the trial court must
certify the question; and (2) the appellate
court must decide in its discretion to accept
the appeal.
Once the trial court certifies the ques-
tion, an application for leave to appeal to
the appellate court must be filed within
14 days. The respondent has 14 days to
file an answer in opposition. As in other
interlocutory appeals, a supporting record
is needed.
If the application is granted, normal
briefing is allowed. Again, as in Rule 306, no
page limits exist in Rule 308. However, the
maximum should not exceed the require-
ments of Rule 341, which is 50 pages.
If the application for the appeal is
granted, a stay of the trial court proceed-
ings is not automatically granted. Amotion
for stay must be filed in the trial or appel-
late court. The scope of review is generally
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