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APRIL/MAY 2015
Rule 323(b). The reviewing court is really
not interested in reviewing the dispute
about what the witnesses testified.
The three deadlines in 323(d)–28 and 14
and 7–aggregate 49 days, which is the exact
deadline for the filing of a court reported
verbatim report of proceedings. S.Ct. Rule
323(b). If the deadlines in 323(d) cannot be
met–which is often true–extensions may be
requested from the Appellate Court. S.Ct.
Rule 323(e). Be careful: there are deadlines
in 323(e) for requesting extensions. If they
are not met, a request for an extension
should be sought under Rule 183. In either
event, the Appellate Court generally will
liberally grant extensions, provided that
good cause is shown by affidavit.
Time is of the essence for appellant
Counsel for the appellant can never be sure
whether appellee’s counsel–who may be
someone new stepping into the case solely
for the appeal–will be a choir boy or a storm
trooper on the issue of the content of the
bystander’s report of proceedings. Prudence
dictates that the appellant assume the latter
will be more likely. That means that there
will be a dispute about what the witnesses
actually testified that is going to have to
be resolved by a trial judge who probably
hears dozens of motions and several trials
every week and probably will have little
or no recollection of your particular trial
that he heard several months prior. The
trial judge may or may not have good trial
notes. The probability is overwhelming,
of course, that the notes will be far from
a verbatim recitation of what each witness
said. The judge is not a certified shorthand
reporter. Also, there’s always the unlikely
but forseeable possibility of judicial retire-
ment or demise in the interim.
Therefore, appellant’s counsel will want
to bring the dispute on the content of the
report of proceedings before the judge for
ruling as quickly as possible. If the trial
was non-jury–so that a post-trial motion
is not mandatory–strong consideration
should be given to foregoing a motion to
reconsider. Those motions always result in
months of briefing and are nearly always
denied. Appellant should file the notice of
appeal immediately after the judgment is
entered, and deliver, not mail, the proposed
bystander’s report of proceedings to appellee’s
counsel immediately after that. Don’t delay.
If a judge can’t remember the testimony, is
he likely to give the benefit of the doubt to
the side that wants to reverse him?
Format for the bystander’s report of
proceedings
There is no prescribed format for a
bystander’s report of proceedings. The
best practice is to follow the style used by
court reporters in preparing their verbatim
report of proceedings pursuant to Rule
323(a), except that it is not necessary for
the testimony to be in oral interrogatory
(question and answer) form. Narrative
form is acceptable, and indeed may be
preferred. The trial court caption, not the
reviewing court caption, should be used.
If you have never seen a court reporter’s
verbatim report of proceedings of a trial,
get one, study it, and make the format of
your bystander’s report of proceeding as
close to that style as possible. Remember,
it was a trial, not a deposition.
The appellant–who has the burden of
proof on appeal–should make every effort
to make the bystander’s report of proceed-
ings as thorough and complete as possible,
particularly when it comes to the testimony
on anything that is going to be raised as
error on appeal. A sketchy report of pro-
ceedings will not instill confidence in the
reviewing court and will not carry the day.
George F. Mueller & Sons, Inc. v Northern
Illinois Gas Co.,
32 Ill.App.3d 249, 255,
336 N.E.2d 185, 190 (1st Dist. 1975).
What if there was a court reporter?
Occasionally, there was a court reporter
present for the trial but the appellant
cannot afford the cost of a write up and
for that reason wants to utilize a bystander’s
report of proceedings. Although the rule
arguably does not allow this, the Appellate
Court has said in
dictim
that it is not only