DISCLAIMER: Jacob H. Jost is a law clerk for the Hon. Rita B. Garman, Chief Justice of the Illinois Supreme Court. In that capacity, he sees Petitions for Leave to Appeal with a wide range of strengths and weaknesses.  In his personal capacity, he has analyzed what makes a winning PLA.  Jost is a 2013 graduate of the University of Illinois College of Law, where he was editor-in-chief of the University of Illinois Law Review.  Jost has no affiliation with Sedgwick LLP.  This analysis is not an official communication of the Illinois courts.  The opinions expressed do not necessarily reflect the views of Sedgwick, its partners or employees.

It did not go your way at the appellate court. The Rule 23 order came in this afternoon. Though you marshaled some strong arguments about a sister district’s precedent, two justices found room for distinction and went for the other side. You can take some comfort in knowing you persuaded one justice, as the fairly lengthy dissent indicates. As you prepare to inform your client, you wonder: should you file a petition for leave to appeal to the Illinois Supreme Court? What are the chances you can get review, and how can you improve your chances?

“Never tell me the odds.”

A petition for leave to appeal is, by the numbers, a bit of a long shot. The Illinois Supreme Court has discretion whether to take the vast majority of its appeals. The abolition of the death penalty in Illinois substantially reduced the number of direct appeals to be brought under Rule 603. Rules 302, 603, and 317 still provide for appeal as of right in the event a statute is found unconstitutional,[1] but this is a fairly rare event (implicated in just four of the Court’s forty-seven opinions from 2014).[2] Accordingly, almost all of the Court’s potential cases pass through Rule 315, which requires the filing of a petition for leave to appeal.

Rule 315 spells out factors the Court considers: “the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court’s supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed.”[3] The nonexclusive list makes the process appear straightforward.

Yet review remains elusive. In 2014, the Court disposed of some 1400 petitions outside the accelerated dockets for delinquent minors and child custody. Just 26 of the roughly 900 criminal case petitions were allowed, and 38 of the roughly 500 civil case petitions were allowed. The overall allowance rate is thus about 4.6%, with civil petitions being allowed a bit more than twice as often as criminal petitions. Is a petition worth the additional time and expense for less than a 1-in-10 shot?

But not all petitions are made equal. Certain characteristics of your case affect your chance of getting leave to appeal. Certain strategies can help you maximize your odds. This article identifies the common characteristics of successful civil case petitions for leave to appeal and contrasts them with those that did not garner the court’s approval in 2014. Some of these characteristics are binary, e.g., whether the petition claims a conflict in authorities, whether the appellate court acknowledged a conflict or distinguished it, whether there is an appellate dissent, and whether the appellate decision is published. The article contains an additional, holistic analysis on the primary focus of the petition, to gauge where the petition devotes the bulk of its argument. The analysis covers all civil petitions allowed in 2014 and a sample of the civil petitions denied, excluding the accelerated child custody and delinquent minor dockets. The denied petition sample provides a 5% margin of error, at a 95% confidence level.[4] By knowing the common elements of a successful petition and which aspects to emphasize, you can make an informed choice whether to proceed and how to frame your petition.

Conflict strengthens, but keep focus

By the numbers, the single most effective strategy in drafting a successful petition for leave to appeal is to state a conflict in authorities and maintain focus on it. Just over 84% of the petitions allowed by the Court in 2014 included a claim of conflict in authorities, either with other appellate decisions of the state, with decisions of the Illinois Supreme Court, or (less frequently) with persuasive federal decisions. Only 34% of the denied petitions claimed any sort of conflict in authorities. Successful petitions were thus more than twice as likely to claim a conflict.

Of course, some claims of conflict are too attenuated and some precedents ill-fitting. The appellate court distinguished about two thirds of the conflicts claimed in the denied petitions. Yet those who find their chosen conflict distinguished by the appellate court might still take heart, as this fact is far from fatal. The appellate court distinguished 34% of the conflicts claimed in the allowed petitions, in whole or in significant part. While a distinction by the appellate court clearly hurts your argument for a conflict, it may present an opportunity for some strong advocacy.

While about a third of the denied petitions stated conflicts, relatively few maintained a primary focus on that conflict, with far more focusing on error. More than half of the conflict-claiming denied petitions shifted to focus on errors of application of the law to the facts. Another 11% shifted to pure errors of law. Some stated conflicts were, in truth, mere statements of error. The petition would state a conflict with Illinois Supreme Court precedent but would then merely describe how that precedent had been misapplied below. Others briefly stated a conflict but swiftly abandoned discussion of it to focus on misapplication of other settled law below. Only 31% of the denied petitions stating a conflict maintained that focus throughout. Denied petitions at large overwhelmingly focused on claims of error, with 84% focusing on claims of error in application of the law or a pure error of law. Just under 11% of denied petitions overall maintained a focus on conflict in the law, with 5% focusing on development of the law.

Petitions focusing on claimed errors of law or fact have been, overwhelmingly, unsuccessful. This pattern suggests that petitioners should not consider the Illinois Supreme Court a court of error correction in any but the most extreme of cases. Likewise, the numbers suggest it is insufficient to claim a conflict and then focus on how you believe the appellate court erred. You will have much better luck by claiming a conflict and maintaining your focus on that conflict as the primary point of your petition.

As noted above, more than 4 in 5 allowed petitions claimed a conflict, and the allowed petitions typically maintained their focus on that conflict. Conflict remained the primary focus of 94% of allowed petitions that claimed one, with conflicts involving issues of jurisdiction making up nearly 19% of allowed petitions with conflicts. Only one allowed petition claimed a conflict then shifted its focus to errors in application of the law to the facts. The Court consolidated that petition with two others from the same case that did maintain a focus on conflict in the law, however, so it is difficult to draw a conclusion that it was a strong enough argument about error to warrant the Court’s attention. That petition may well have been pulled along by the momentum of the two petitions focusing on conflict. An additional allowed petition did not claim a conflict and focused its attention on claims of error, but it was likewise consolidated with a petition that did claim conflict and maintain that focus. Overall, a focus on conflict was central to 78% of the allowed petitions.

The spotlight on conflict thus far could cause pessimism for an attorney with no conflicting authority to point toward, but all is not lost. The Court did allow six petitions that did not state a conflict in authorities, which comes to about 16% of the allowed petitions. Of those successful petitions not claiming a conflict, 83% were focused on development of the law—how Illinois law is evolving and how the Court should guide it into the future. Petitions focusing on development of the law tended to advocate for common-law doctrines in Illinois to be abandoned or for common-law doctrines of other states or Restatements to be adopted. Other petitions focusing on development of the law noted tension or apparent conflict between existing statutes and recently enacted statutes, advocating for a particular harmonization of the two.

Some petitions focusing on development of the law claim an issue of first impression. Those that do should maintain a focus on developing the law. About 8% of the allowed petitions claimed an issue of first impression, while a bit over 11% of the denied sample did likewise. All of the allowed petitions claiming an issue of first impression maintained a focus on development, while only about 17% of the denied first-impression petitions did. The takeaway appears to be that claiming an issue of first impression is not, in itself, the strongest strategy, but it may be the strongest strategy available to a petitioner without a viable conflict to claim. If an issue of first impression is noted, the petition should maintain a focus on development of the law, rather than falling into a focus on errors in the courts below. The Court’s strong emphasis on conflicts in the law and its tendency not to take up claims of error both suggest another useful insight for an attorney claiming an issue of first impression: explain why the Court should take up the case now, rather than waiting for more appellate precedent to develop. Outline why your case should lead the way.

To summarize, as a petitioner you would do very well to invoke a conflict of authorities and maintain focus on that conflict. The Court’s allowed petitions overwhelmingly fit that pattern. If the appellate court has distinguished your conflict, try to explain why that distinction should not control. Having your conflict distinguished appears to have a fairly strong negative impact on its persuasive strength, but it is not fatal. If no strong conflict is available, consider focusing on development of the law and how Illinois law would best be interpreted going forward. A focus on whether the courts below erred, on matters of law or matters of fact, is unlikely to succeed.

Publish or perish, thrive on dissent

Both publication and an appellate dissent appear to give a petition a strong boost. Published opinions preceded 84% of the allowed petitions but only 32% of denied petitions. The strong relationship between publication and petition allowance is perhaps unsurprising, given Rule 23’s reservation of publication to those cases in which a majority of the appellate panel concludes the decision “establishes a new rule of law or modifies, explains or criticizes an existing rule of law” or “resolves, creates, or avoids an apparent conflict of authority within the Appellate Court.”[5] Unpublished decisions are without precedential effect, which necessarily reduces the urgency of review by the Supreme Court.[6] Note that the appellate court’s view of the case’s significance is not conclusive, however, insofar as 16% of the Court’s allowed petitions were from unpublished cases. In such cases, the Court may have seen sufficient need for clarity in the law, even in the absence of precedential effect of the appellate decision.

The existence of an appellate dissent likewise sends a relatively potent signal a petition is viable. Nearly 29% of the Court’s allowed petitions followed an appellate decision with a dissent, while only 10% of denied petitions did. The presence of a dissent may even occasionally overcome the negative impact of an unpublished decision. While unpublished orders made up only about 16% of the allowed petitions, a third of those cases had an appellate dissent. About 10% of unpublished decisions in the denied petition sample had appellate dissents; those petitions all focused on error, suggesting the dissents were similarly limited to the application of settled law to the particularized facts at hand.

It likely comes as no surprise that pro se petitioners rarely succeed in getting a petition heard by the Court. Pro se petitioners filed 22% of the denied petitions. One pro se petitioner did succeed in getting his case heard by the Supreme Court in 2014. As it turns out, that petitioner is an accounting professor and attorney admitted to practice in New York, who ended up writing a law journal article about his case before the Court.[7]  His petition stated a conflict and maintained a focus on that conflict.

Appeals as of right, answers

Additional factors to consider in drafting a petition are appeals as of right and the filing of answers. Two petitions allowed by the Court included an alternative pleading for appeal as of right under Rule 317,[8] making up about 5% of the allowed petitions. About 8% of denied petitions included Rule 317 claims, with most petitioners being pro se and failing to support the argument. Given the margin of error, the numbers do not quite support an inference that invoking Rule 317 is counterproductive, but it is mostly a misapplied tactic. In general, invoking Rule 317 does not appear to be especially effective.

As for answers, about 45% of the petitions allowed also had answers filed. Rule 315(f) allows a petition respondent to file an answer.[9] Typical answers explain why the petition does not properly satisfy the criteria contained in Rule 315(a) or argue against the petitioner’s characterization of the facts and proceedings below, with a goal of convincing the Court not to take up the case. Interestingly, answers were filed slightly more frequently for allowed petitions than for denied ones, with about 38% of denied petitions garnering answers. Again taking into account the margin of error, an answer might serve as some small indication that opposing counsel recognizes a petition as reasonably strong. However, it likely won’t be filed until three weeks or more after you have filed your petition, so an answer is no help in deciding whether to file one.

Victory by another name, and forfeiture

Even when a petition is denied, a petitioner might secure some measure of victory with a supervisory order. On the criminal side of the docket, this often occurs when a petitioner invokes a criminal law issue already pending before the Court, prompting a remand with directions to reconsider in light of the Court’s eventual decision. On the civil side of the docket, this often takes the form of the Court directing the appellate court to take an interlocutory appeal and consider it on the merits. While a denial with a supervisory order does not come with the opportunity to argue the issue before the Supreme Court, the petitioner gets another chance at the appellate court. Remember to ask for this type of relief in the alternative, if it makes sense in your case.

Finally, be wary of forfeiture.[10] The strongest conflict of authorities will do you no good if the issue to which it relates is forfeited. Preserve issues below and raise them in your petition. Where an issue has not been preserved, consider whether an exception to forfeiture might apply. The issues to be considered in argument before the Court will be framed by the successful petition.

Should you file that petition? Where should you focus?

Returning to the scenario described at the beginning of this article, you now know more about the likelihood of success and how to increase your chances. You have a viable conflict to point toward, a point in your favor. The appellate court has distinguished your conflicting authority, a point working against you. You have an appellate dissent to point toward, a point in your favor. The order is currently unpublished, a point working against you.

If you decide to file that petition for leave to appeal, focus on the conflict in precedents you have identified. Avoid getting bogged down in claims of error applying settled law. To the extent the appellate majority has distinguished your conflicting authority, explain why that distinction is unavailing. Try to leverage the arguments present in the appellate dissent to further emphasize uncertainty in the courts below. Finally, you might consider filing a Rule 23(f) motion to publish[12]—though it may raise the stakes by making an unfavorable decision precedential, publication also maximizes the odds of securing review. If you craft an appealing petition, you may find yourself arguing before the Illinois Supreme Court. Good luck!

Image courtesy of Flickr by Denise Krebs (no changes).

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[1] Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011); Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); Ill. S. Ct. R. 317 (eff. July 1, 2006).

[2] In re Derrico G., 2014 IL 114463; In re Marriage of Donald B., 2014 IL 115463; People v. Clark, 2014 IL 115776; People v. Melongo, 2014 IL 114852.

[3] Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015).

[4] Sample size 209, out of 449 denied civil case petitions, excluding those petitions that were denied with a supervisory order.

[5] Ill. S. Ct. R. 23(a) (eff. July 1, 2011).

[6] Id. § (e).

[7] Huber v. American Accounting Association, 2014 IL 117293; Wm. Dennis Huber, The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(B)(3), 39 S. Ill. Univ. L.J. 451 (2015).

[8] Ill. S. Ct. R. 317 (eff. July 1, 2006) (allowing appeal where “a question under the Constitution of the United States or of this state arises for the first time in and as a result of the action of the Appellate Court”).

[9] Ill. S. Ct. R. 315(f) (eff. Jan. 1, 2015).

[10] See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (providing “Points not argued are waived”, and incorporated as to petitions by Ill. S. Ct. R. 315(d) (eff. Jan. 1, 2015)).

[11] 2013 IL App (1st) 082513-B.

[12] Ill. S. Ct. R. 23(f) (eff. July 1, 2011) (providing “any party may move to have the order published as an opinion”).