Consolidating an appeal; filing record for consolidated appeal

In order to consolidate appeals in Illinois there must be two separate appeals filed in the appellate court, which is distinct from a single appeal with multiple issues being appealed. 

This means that two separate notices of appeal and two separate docketing statements must be filedTo consolidate two separate appeals effectively, one must bring a motion to consolidate and state the reasons for consolidation.  In most cases the reasons for consolidating an appeal arise from one party appealing two separate interlocutory orders before the underlying proceedings have ended (See: Illinois Supreme Court Rule 307), one party appealing two separate final judgments that do not dispose of the entire proceeding (See: Illinois Supreme Court Rule 304), or some combination of those two. 

No matter what types of appeals one attempts to consolidate, the procedure is consistent and relatively simple.  One brings a motion to consolidate or an agreed motion to consolidate, depending upon the position of opposing counsel.  Of course, opposing counsel may oppose the motion and file a response.  In any instance, attempting to consolidate two separate appeals is straightforward and similar to a motion to consolidate in a trial court.  However, filing the record for a consolidated appeal is where the process gets complicated.  

            From the outset, it is important to understand that if a court grants a motion to consolidate, even if the court consolidates two, three or even eight appeals, the appeal is docketed under the number assigned to the initially filed appeal or the lowest docket number of the appeals being consolidated.  Further, no matter how many appeals are filed or how many appeals are consolidated, there is only one record

The easiest way to think about this is to imagine that the trial court is a library and all of the documents filed and associated with the case at the trial level are compiled in a library book, the “Trial Level Book.” 

When an appeal is filed, the Trial Level Book is – essentially – checked out. 

To illustrate this, imagine two separate, unconsolidated appeals.  There is only one Trial Level Book, or record.  If it is filed (checked out) for appeal #1, then appeal #2 cannot – and will not — be heard.  Only when appeal #1 concludes, and the Trial Level Book returns to the trial court, can it again be checked out, this time for appeal #2. 

This is true regardless of whether the appeals are filed in the same appellate court. 

Obviously, eliminating this otherwise unavoidable delay is itself an incentive to consolidate appeals.  But understanding that there is just one record once an appeal has been consolidated gets us only halfway to the finish line. 

One reaches the homestretch by understanding that the entire time the record is checked out of the trial court, and is in the possession of the appellate court, it is not updated with critical filings and other documents. 

 So, according to the rules, if the original notice of appeal is filed on January 1, then, the record on appeal must be filed within 63 days.  (See: Illinois Supreme Court Rule 326).  Once the notice of appeal is filed, a form requesting preparation of the record must be submitted (this form is available on the Cook County Clerk of the Circuit Court’s website). 

 It is best to assume that from the day the preparation of the record form is filed, no subsequent filings or documents will not be included in that prepared record. 

 Additionally, the civil appeals division of the Cook County Circuit Court Clerk is relatively small and frequently backlogged.  Therefore, it is not unusual to file one or two extensions from the 63-day requirement.

 Returning to the example of filing a notice of appeal on January 1st, assume the record on appeal is filed on May 1.  The four months from January 1 to May 1 are lengthy, especially in a highly contested case.  Something may have occurred in the case during that time that should itself be appealed.  But, as we have seen, no documents coming into existence since the January 1 request will be part of the record, making citation to them impossible.    To alleviate this problem one must supplement the record on appeal.   

Two means exist to supplement the record on appeal, (1) a court order from the trial level or (2) a stipulation with opposing counsel.  The court order or stipulation should include the name, description and date of each document to be added to the record. 

 In either instance the procedure is straightforward.  One  completes a form to supplement the record on appeal in the civil appeals division of the Cook County Clerk of the Circuit Court. 

 To file the request to supplement the record an original and signed copy of the court order or stipulation must be attached.  The actual signature of the judge – if by court order, or at least one party – if by stipulation is mandatory,  along with a single copy of all of the documents to be added to the record. 

 The Clerk cross-checks each submitted document with the court order or stipulation, and then accept the documents and begin the certification process. 

 Certification takes between 10 and 60 days, perhaps more, depending on how busy the Clerk is and how many documents are being added to the record.  Upon completion, the Clerk will notify the submitting party to take possession of the record.  The supplemental record should be copied for one’s own use and for opposing counsel before submission to the appellate court. 

 Once the supplemental record has been submitted to the appellate court, briefing can begin.  Citations to either the original record or the supplemental record are in order, but they must be clear: for example, (C234) for the original record and (Suppl. R. C234) for the supplemental record.                      Image