Handling a Civil Appeal in the Wisconsin Court of Appeals – Civil Law
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Once you have reached the end of a trial in circuit court, the case is not necessarily over. A party against whom the circuit court has ruled may appeal to the Wisconsin Court of Appeals. Pursuing or defending a civil appeal in Wisconsin can be a daunting task. Handling a civil appeal in the Wisconsin Court of Appeals is very different from handling a proceeding in the circuit court, and it requires a different approach and a different skill set.
In Wisconsin, trials take place in circuit court. Here, the parties present evidence and arguments, and the investigator, either the court or a jury, will make findings of fact. As for the appeals, they concern almost exclusively legal questions, and unlike the circuit court, the parties are generally not allowed to argue the facts. The appellate court does not make findings of fact and will not reverse the factual findings of the circuit court “unless the findings are clearly in error”, which rarely happens. See United Food & Commercial Workers Union v. Hormel Foods Corp.2016 WI 13, ¶ 29, 367 Wisconsin 2d 131, 876 NW2d 99.
Wisconsin has two courts of appeal, the Court of Appeals and the Supreme Court. Appeals to the Wisconsin Supreme Court are their own topic, but similar strategies and skill sets are involved. The Court of Appeals is Wisconsin’s intermediate appellate court. It is made up of 16 judges from four districts, with headquarters in Milwaukee, Waukesha, Wausau and Madison. Compared to the Supreme Court, the Wisconsin Court of Appeals represents a relatively high volume because appeals to the Wisconsin Court of Appeals are “as of right”, meaning a party has the right to appeal of an unfavorable decision. See WisconsinStat. 808.03(1).
Appeals to the Court of Appeal are generally decided by panels of three judges. See WisconsinStat. § 752.31(1). However, if the case falls under one of the categories specified in Wis. Stat. § 752.31(2), then it is decided by a single judge.
Overview of the procedure for filing an appeal and general deadlines
Once there is a final judgment or order to appeal, a party who wishes to appeal a final order or judgment in a civil case1 generally has 45 or 90 days to appeal by filing a notice of appeal. WisconsinStat. 808.04(1).2 This time limit is not extended if you file a motion for reconsideration in the Circuit Court. The notice of appeal is a document filed with the clerk of the circuit court that identifies the order or judgment being appealed and contains information about the case. Second. 809.10(1)(2)(b). The party appealing the judgment or order—referred to as “the appellant”—must also send a copy of the notice of appeal to the clerk of the Court of Appeal and pay a filing fee.
See WisconsinStat. §§ 809.10 & 809.11. Filing a Notice of Appeal in a timely manner is essential because “[t]The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.”
See WisconsinStat. § 809.10(1)(e).
The caller should then request a copy of the transcripts (if required) for each partand file a transcript statement with the Clerk of the Court of Appeals and the Clerk of the Circuit Court who “designate[s]parts of the transcript that were requested by the appellant or that contain a statement by the appellant that a transcript is not necessary for the prosecution of the appeal. » SeeSecond. 809.11(4).
Once the appellant files the notice of appeal, several things begin to happen behind the scenes, including the compilation of the circuit court record, called the “appeal brief.” The appeal record is a compilation of the original documents filed in circuit court, including the transcript if requested. See WisconsinStat. 809.15. Once the record has been compiled, each party receives a notice that the record is available for inspection (and potential correction). After each party has had a chance to inspect the appeal brief, the brief is filed, which begins the information deadlines, the most important aspect of the appeal.
The appellant has 40 days from the filing of the appeal brief to submit a brief setting out the appellant’s arguments to set aside the circuit court order or judgment. Specific requirements regarding length, content, formatting, and citations of the dissertation are set forth in Wis. Stat. § 809.19 and are very detailed.
Once the appellant files a brief, the party not appealing—called the “respondent”—has 30 days to file a responding brief. See WisconsinStat. 809.19(3).3 The appellant is then authorized to submit a memorandum in response, which is due 15 days after the memorandum in response. Second. 809.19(4).4
There are additional rules for cross-appeals (when both parties appeal aspects of the judgment or order) and when non-parties wish to file an amicus brief. See id.
Once the briefs have been filed, the case is screened, which determines, among other things, whether the case will be the subject of oral argument or whether the case will be submitted on the briefs alone. (Section VI(1) of the Wisconsin Court of Appeals Internal Operating Procedures). Although pleading is a common feature in circuit court, it is extremely rare in appellate court. In 2019, there were 884 appeal court submissions (all four districts). Of these 884 submissions, only 12 cases were argued orally. Thus, the overwhelming majority of cases brought before the Wisconsin Court of Appeals are decided solely on the factum submitted by the parties. This means that it is essential to submit a well-written and convincing dissertation; in all likelihood, this is the only chance you will have to make your point.
The Importance of a Good Appellate Lawyer (Even If You’re Not Appealing)
There are many ways an experienced appellate attorney can add value to your case. First, a good appellate attorney will have excellent research and analytical skills as well as experience with the Court of Appeals to give an honest assessment of your case before and after trial. If you are a potential appellant and are considering appealing an unfavorable decision, an appeal lawyer will be able to advise you on the chances of success. On the other hand, the circuit court may have ruled in your favor and you must defend yourself on appeal. Although the majority of circuit court decisions are upheld, the high upholding rate is somewhat misleading. An experienced appellate lawyer will be able to give you a more nuanced case assessment than just telling you that your case is likely to be upheld. Not all cases are equal. There may be other factors that increase the risk that the favorable decision you have obtained in the circuit court will be overturned on appeal, including the absence of determinative case law or the presence of a material error on the part of the circuit court. Have a good idea of the strengths and weaknesses of
your case will allow you to make informed decisions in the future – whether to pursue or defend an appeal – including whether to file an appeal or whether to seek a settlement during the appeal.
Also, even if the trial is ongoing, pursuing a permissive appeal, called an interlocutory appeal, could sometimes avoid a costly and unnecessary trial. This is accomplished by filing an application for leave to appeal the non-final judgment or order to the court of appeal. See WisconsinStat. § 809.50. Attorneys who regularly handle appeals may be able to spot these issues as they arise in circuit court and provide insight into whether to pursue an interlocutory appeal. And even if you decide not to pursue an interlocutory appeal, an appellate attorney can help you spot potential issues to appeal later and ensure that the circuit court case is properly developed on those issues.
Once an appeal is underway, a lawyer with appellate experience who understands the process and strategy can make the difference. A good appellate lawyer can easily work within the existing factual framework to craft the best legal argument for you. You have limited space in your brief, which is probably the only chance you have to present your case to the Court of Appeal. Therefore, writing a concise brief, which requires a good understanding of operational legal issues, is essential to making effective arguments on appeal. A good appellate lawyer will know how to use this limited space and write to his audience, in this case the judges of the Court of Appeal, and sometimes the clerks of the judges.5 An appellate brief gets more attention than your typical filings in circuit court. Therefore, a memorandum of appeal must be drafted carefully, taking into account this additional examination.
The task of an appellate lawyer is to understand the
legal landscape and give the court a
legal way to reach a conclusion favorable to you based on the facts found in the circuit court. This legal route must then be explained clearly and concisely in the appeal brief. Experienced appellate lawyers will understand that it is essential to focus only on the strongest arguments and not waste time and space on issues with a low probability of success. While it may be tempting to raise every conceivable argument in your favor – indeed, many lawyers make this mistake – wasting time wasting arguments (1) can undermine your credibility with the court and (2) risk distract the court from your strongest arguments.
1. There are different procedures for criminal appeals, small claims eviction appeals and appeals involving the revocation of parental rights.
2. A party has 45 days if “notice in writing of the entry of a final judgment or order is given within 21 days of the final judgment or order”, but otherwise generally has 90 days. See Wis. Stat. 808.04(1). Either party may provide written notice of entry of the judgment or order. See Wis. Stat. 806.06.
3. The respondent has 30 days from the later of (1) the date of service of the appellant’s factum, plus 3 days if service is by mail, (2) the date on on which the Court of Appeal accepts the appellant’s factum for filing, or (3) the date on which the file is filed with the office of the Court of Appeal. See Wis. Stat. § 809.19.
4. The appellant has 15 days from the later of (1) the date of service of the brief in reply or (2) the date on which the Court of Appeal accepts the brief for filing.
5. Many Court of Appeal judges involve their lawyers in the decision-making process in a variety of ways, including reviewing the briefing, reviewing the record, legal research, and even assisting the judge in writing opinions.
Originally published October 23, 2020
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.