The Civil Appeals Process in Wisconsin - Alderman Law Firm

180 Pages·2014·10.84 MB·English

TABLE OF CONTENTS

OVERVIEW OF CIVIL APPEALS
A. INTRODUCTION TO THE WISCONSIN COURT OF APPEALS 5
B. BIRDS EYE VIEW OF THE CIVIL APPELLATE PROCESS 5
C. THE EXPEDITED APPEALS PROGRAM 11
D. IS COUNSEL REQUIRED? 13
LAYING THE GROUNDWORK FOR THE CIVIL APPEAL
A. FINAL JUDGMENT OR ORDER 16
B. NON-FINAL JUDGMENT OR ORDER (INTERLOCUTORY APPEALS) 17
C. NOTICE OF APPEAL 19
D. DOCKETING STATEMENT 22
E. STATEMENT ON TRANSCRIPT 23
F. THE RECORD ON APPEAL 25
G. CALCULATING DEADLINES 28
DRAFTING THE BRIEF OF APPELLANT
A. OVERVIEW AND STRATEGIES 30
B. TIMELINE OF BRIEF OF APPELLANT 30
C. CONTENT REQUIREMENTS 31
D. FORM AND LENGTH REQUIREMENTS 33
E. APPROPRIATE ARGUMENTS 34
F. HOW WILL THE COURT OF APPEALS REVIEW THE ARGUMENT? 35
G. FILING THE BRIEF OF APPELLANT 39
DRAFTING THE BRIEF OF RESPONDENT
A. OVERVIEW AND STRATEGIES 42
B. TIMELINE OF BRIEF OF RESPONDENT 43
C. CONTENT REQUIREMENTS 44
D. FORM AND LENGTH REQUIREMENTS 45
E. FILING THE BRIEF OF RESPONDENT 46
DRAFTING THE APPELLANT’S REPLY BRIEF
A. OVERVIEW AND STRATEGIES 49
B. TIMELINE OF THE APPELLANT’S REPLY BRIEF 50
C. CONTENT REQUIREMENTS 50
2
D. FORM AND LENGTH REQUIREMENTS 50
E. FILING THE APPELLANT’S REPLY BRIEF 51
ORDER OF COURT OF APPEALS
A. DEALING WITH A LOSS 54
B. MOTION TO RECONSIDER 55
C. PETITION FOR REVIEW TO WISCONSIN SUPREME COURT 57
APPENDICIES
PROCEDURES AND RULES FOR WI EXPEDITED APPEALS A-1
PRO SE GUIDE TO APPELLATE PROCEDURE A-4
WISCONSIN RULES OF APPELLATE PROCEDURE A-44
RULE 809 APPELLATE TIME TABLE A-76
NOTICE OF APPEAL TEMPLATE A-79
WISCONSIN COURT OF APPEALS DISTRICT MAP A-81
PETITION FOR WAIVER OF FEES/COSTS A-83
DOCKETING STATEMENT A-86
STATEMENT ON TRANSCRIPT TEMPLATE A-89
SAMPLE MOTION FOR EXTENSION A-91
SCR 80 A-94
BRIEF COVER TEMPLATE & REQUIRED CERTIFICATES A-97
GUIDE FOR PRO SE LITIGANTS OF THE WI SUPREME COURT A-102

!
3
Part 1:
Overview of Civil Appeals

4
A. Introduction to the Wisconsin Court of Appeals
Often, the conclusion of a case in the Circuit Court is
only the beginning of the case’s legal life. When a litigant in
front of one of Wisconsin’s nearly 250 Circuit Court judges
believes that the court ‘got it wrong,’ he can request that the
Wisconsin Court of Appeals review the Circuit Court’s
decision. The Wisconsin Court of Appeals is an important
stop in the life of a case because, although the Wisconsin
Court of Appeals is not the last opportunity for judicial
review of a case, it is the last forum wherein a court is
required to consider the merits of an argument.

B. Birds Eye View of the Civil Appellate Process
Wisconsin law provides every litigant with the right to
have proceedings in the Circuit Court reviewed by the
Wisconsin Court of Appeals. For purposes of litigation in the
5
Wisconsin Court of Appeals, the litigant filing the appeal is
the “appellant,” and the responding party is the
“respondent.”

Importantly, the Wisconsin Court of Appeals does not
provide a forum for re-litigation of a claim. A litigant cannot
approach an appeal with the mindset that he simply wants
‘another bite at the apple.’ The Wisconsin Court of Appeals
will review proceedings in the Circuit Court to ensure that
the Circuit Court applied the proper law, interpreted the
law correctly, and did not commit an erroneous exercise of
discretion.

In contrast to matters in the Circuit Court, which are
often tried to a judge or jury, matters considered in the
appellate court are often considered based on briefs only. A
short oral argument may be requested by the Court of
6
Appeals, however an appellant should not assume that he
or his attorney will be afforded an opportunity to verbally
argue his position to the Court of Appeals. In fact, oral
arguments at the appellate level are unusual in Wisconsin.
The appellant will have the opportunity to submit two briefs
– an appellate brief and a reply brief – and the respondent
will have the opportunity to submit only one brief – a
responsive brief. However, if the respondent does not
respond to the initial appellate brief, then the appellant has
nothing to reply to, and will have only submitted the initial
brief.

After the matter is fully briefed or the time to respond
has expired, the appellate court will apply the oral
argument criteria to determine whether oral argument is
necessary. Wis. Stat. § 809.22 provides that a court may
determine oral argument is unnecessary where: (1) the
7
appellant’s arguments are “plainly contrary to relevant
legal authority that appear to be sound and are not
significantly challenged,” “are on their face without merit
and for which no supporting authority is cited or
discovered,” or “involve solely questions of fact and the fact
findings are clearly supported by sufficient evidence,” or (2)
“the briefs fully present and meet the issues on appeal and
fully develop the theories and legal authorities on each side
so that oral argument would be of such marginal value that
it does not justify the additional expenditure of court time
or cost to the litigant.”

If oral argument is scheduled, each side will have a
limited amount of time – determined by the court hearing
the particular case – to present argument and answer
questions from the judges.1 This oral argument may take
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 See Wis. Stat. 809.22(3).
8
place telephonically at the request of any party, or on the
court’s own motion.2 After oral argument – if any – it is time
for the Court of Appeals to rule on the case. If oral
argument is not scheduled, parties will receive notice that
the case has been “Submitted on Briefs” – meaning all briefs
have been provided to the court for review.

Most cases are decided by a panel of three judges.3
Cases that are decided by one judge include cases brought
under the Children’s Code (Wis. Stat. § 48), Mental Health
Act (Wis. Stat. §51), Protective Services (Wis. Stat. § 55),
Small Claims Actions (Wis. Stat. § 799), the Juvenile
Justice Code (Wis. Stat. § 938), and cases involving traffic
and municipal ordinance violations, misdemeanors, civil
forfeitures, and contempt.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2 See Wis. Stat. 809.22(4).
3 The Wisconsin Court of Appeals consists of a total of 16 judges
from 4 districts.
9
In 2012, the average number of days from start to
finish in the appellate court was 2644 and 86% of civil cases
were affirmed.5 A party who receives an adverse decision in
the appellate court may ask the Wisconsin Supreme Court
to review the decision, however the Wisconsin Supreme
Court chooses which cases it hears, and the granting of
petitions for review are rare.

In order to keep up with what is going on in a
Wisconsin appeal, the Wisconsin Court System provides a
free online database, “Supreme Court and Court of Appeals
Access,” or “WSCCA” for short. To access a case, go to
http://wscca.wicourts.gov/index.xsl. Click “I Agree” to the
terms and conditions in order to move to the search page.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4 See 2012 Court of Appeals – Case Load Statistics.
5 See 2012 Court of Appeals – Case Load Statistics.
10