Use Rule 310 to Speed Appeals

Litigation can be viewed by all parties as akin to medieval torture- it takes too long and expends too much energy.

I tell clients that being involved in a civil action is like a prison term: Barring a settlement, it will take two to five years before you get out. With an appeal, you can add two to four more years to the term.

It causes one to examine more closely some of the procedural rules to see if everything is being done to expedite this process.

One little-known rule is Illinois Supreme Court Rule 310, which provides for a pre-hearing conference at the appellate level similar to a pretrial conference in the trial court under Rule 218. It provides the court, "on its own motion or on the request of a party," to order such a pre-hearing conference in an appellate proceeding.

While the Rule has as its ostensible function the simplification of issues on appeal, it is being more frequently invoked by the court as a possible method to settle cases on appeal; and the parties, particularly in chancery and tort cases, view this as a positive trend.

Take, for instances, Kemmerv. Monsanto Co., 217 Ill.App.3d 188,576 N.E. 2d 1146 (5^th Dist. 1991). There, the defendant appealed following a verdict in favor of 65 plaintiffs in the St. Clair County Circuit Court, which included $16.25 million in punitive damages.

The case arose out of a train derailment and subsequent toxic chemical spill and negligent clean up that occurred in Missouri in 1979. The jury returned its verdict after hearing evidence for 3 ½ years and deliberating for eight weeks, the longest trial to date in the history of Illinois. The transcript of the proceeding totaled 91,555 pages and some 6,333 exhibits.

Monsanto filed a 2,700- page post-trial motion and was required by the court to file an abbreviated motion not to exceed 200 pages. Not surprisingly, a pre-hearing conference was conducted pursuant to Supreme Court Rule 310 where certain issues were stipulated by the parties.

More recently, in Gershak v. Feign, No. 1-98-2855, decided Nov. 7, 2000 (1^st Dis. 2000), which represents 122 cases consolidated for review, the plaintiffs sought review of an order barring rejection of arbitration awards because the notices of rejection were not personally signed by an attorney of record.

On appeal, the plaintiffs invoked Rule 310. A pre-hearing conference was held to expedite resolution of the cases. An order was entered finding that the issue raised in all of the cases were similar, and 13 of them were consolidate for briefing while the remaining appeals were stayed pending resolution of these appeals or until further order of the court reversed and remanded the trial court’s order, saving an enormous amount of time on the part of all of the parties as well as the court system.

While the benefits of using this rule may be more apparent in large, unwieldy cases that have a tendency to spawn multi- issue appeals, attorneys should be made award of using Rule 310 even in more straightforward matters.

The historical and practice notes suggest that appropriate topics for such a pre-hearing conference are the same as those in Supreme Court Rule 218, which provides for pretrial conferences at the trial court level.

The scope on Rule 33 of the Federal Rules of Appellate Procedure allowing for an appeal conference appears to be much the same, allowing for the consideration of " any matter that may aid in the disposition of the proceedings, including the simplification of the issues and th e possibility of settlement."

But this Rule differs in one respect from Rule 310: Passed in 1971, Rule 310 was amended in 1975 to allow the appellate court or an individual judge as well as the parties to appeal to request a pre-hearing conference procedure that may be conducted in person or on the telephone and may be presided over by the judge or other court designee.

Although Rule 310 offers no guidelines for the courts to consider in reviewing a party’s request for such a conference, apparently the courts anticipated that given the diversity of each as it reaches an appeal as well as the contemplated case law that would develop on the rule, standards would become set through practice.

Such, however, has not occurred simply because of the dearth of its use; but as more parties come to the Rule 310 table, so, too, will guidelines develop to facilitate the process and broaden its use to substantive controversies beyond chancery and tort law.

Leading jurists in the 1^st District are looking for ways to heighten the awareness of Rule 310, even possibly considering its use in random assignment of cases to see if it has a positive impact on the disposition of a greater number of appeals of issues.

But, because the justice who conducts the pre-hearing conference cannot participate in the decision of the appeal, taking a justice away from consideration of such cases could be more detrimental than helpful.

Yet, the appeal courts are filled with former trial court judges with tremendous experience in mediation and settlement who could be tapped to conduct Rule 310 hearings if it were more widely used.

When a party thinks the process is over at the end of trail and instead the lawsuit drags on with an appeal, Rule 310 presents an opportunity for a clever counsel to, at least, bring the parties to the table an effort to demonstrate to the client that you are doing all you can to conclude the case and bring a more swift end to the tortuous process.