Illinois Supreme Court Rule Amendments Impact Forfeiture of Points and Oral Argument Procedure

On May 25, 2018, the Illinois Supreme Court amended Civil Appeals Rules 341 and 352.

Rule 341 – Points not argued are forfeited, not waived.

Rule 341 was changed slightly http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/341_052518.pdf

In subsection (h)(7), the rule previously provided that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

The amended subsection (h)(7) now provides that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

This change reflects the appropriate usage of the terms “waiver” and “forfeiture.” Waiver is the intentional relinquishment of a known right, i.e., an intentional act, whereas forfeiture is the failure to make a timely assertion of a right. Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Litigants who fail to appreciate the distinction between the two concepts in their briefs risk criticism. See, e.g., Mich. Wacker Assocs., LLC, v. Casdan, Inc., 2018 IL App (1st) 171222, ¶ 30 n.3 (noting that, when both parties on appeal raised numerous instances of waiver, that “[t]he parties have failed to differentiate between the concepts of waiver and forfeiture.”).

Rule 352 – The Court must now specify why oral argument is not necessary, and oral argument is required if one justice on the panel requests it.

Rule 352 was also changed, but substantially http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/352_052518.pdf

In subsection (a), the rule previously provided that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power should be exercised sparingly.”

The amended subsection (a) now provides that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case. Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it.”

This change appears to reflect a desire by the Illinois Supreme Court to have the Illinois Appellate Courts hold more arguments. Instead of a generic oral argument waiver order, the amendment seems to require a more specific oral argument waiver order detailing why argument won’t be held in a certain case. Additionally, the rule now makes it clear that oral argument must occur in a case if one justice requests it regardless of whether he or she is the authoring justice.

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