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Navigating Wisconsin’s Appellate Courts

By Keith Stachowiak on April 19, 2013 // Leave a Comment

Trial Courts

Trials typically have about a fifty percent satisfaction rate: there is always a party that wins, and there is always a party that loses. The losing party has the right to appeal. Some cases are better suited for appeal than others. To determine which cases are best suited to appeal, it is important to have an understanding of how Wisconsin’s court system works.

Wisconsin has a three-tier court system. The trial court, sometimes referred to as the circuit court, is where civil cases begin. Each of Wisconsin’s 72 counties has its own circuit court, with nearly 50 judges serving the largest county, Milwaukee County, while smaller counties have only one judge.

The circuit court is where a jury trial occurs, and this is where initial determinations are made, including insurance coverage, immunities, and what evidence must be turned over to the opponent. The trial court is where all evidence is received and where all facts in the case are determined. For example, the jury may determine which party had the green light in a traffic collision case.

Court of Appeals

Wisconsin’s appellate courts are divided into four districts, with each district having at least three judges. Appellate courts give deference to the trial court’s findings of fact while they review errors of law or a trial court’s abuse of discretion. This deference is given because the trial court is in the best position to judge the veracity of the litigants.

An appellate court is likely to take a case where some legal issue was decided incorrectly, where the trial court failed to appropriately apply precedent, or where no established precedent exists. An example of a case where a legal issue may arise might be where a minor driver is involved in a collision while driving a friend’s non-custodial parent’s vehicle. Another example may be where a statute has recently changed and lower courts seek guidance on interpretation or application of that statute. Other cases an appellate court may take include one where the trial court made an improper evidentiary ruling or where the court improperly instructed the jury.

When an appellate court reviews a case, typically three judges decide the case on legal briefs and the record of the evidence that was received in the trial court. Often, there is no oral argument. For example, of the 2,689 cases filed with the Court of Appeals last year, with 1,516 cases being civil and 1,173 being criminal, only one percent included oral argument by the attorneys. The rest were decided on briefs. The briefs must follow fairly strict requirements regarding their content, length, color of the cover, and even the type of font used. To see an example appellate brief, my brief for Brown v. Acuity can be found here: https://acefiling.wicourts.gov/documents/show_any_doc?appId=wscca&docSource=EFile&p[caseNo]=2011AP000583&p[docId]=89451&p[eventSeqNo]=58&p[sectionNo]=1

The Court of Appeals issues its opinions in one of three forms: per curiam, unpublished, and published. A per curiam opinion is not signed by a single judge, the opinion is usually brief, it signifies the appeal has no merit, and it is not usable in other cases. An unpublished opinion, in pre-internet days, was not easy obtain and, therefore, not citable. Today, unpublished opinions are available through the court’s website. An unpublished opinion indicates that the case involves legitimate issues that do not add to the already published jurisprudence. These opinions can be cited in briefs as persuasive authority, but they are not binding on the courts. A published opinion is binding on trial courts and courts of appeal in all four districts. An example of a published opinion of the court of appeals can be found here: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=77515

Wisconsin Supreme Court

The satisfaction rate for litigants receiving a decision from the Court of Appeals is about the same as for trial courts. The losing party can petition the Wisconsin Supreme Court for review. The Supreme Court is not required to hear every case and is very selective in the cases it takes. For example, in March of 2013, 98 petitions for review were filed, and the Court granted three petitions – two criminal and one civil. Further statistics for March can be seen here: http://www.wicourts.gov/sc/DisplayDocument.pdf?content=pdf&seqNo=95231

Annually, the Supreme Court is generally asked to review about 800 cases, and it usually accepts about 60 of those, with a few more being civil than criminal. The civil cases include family law, guardianship, probate, disputes between businesses, personal injury cases, and a host of other civil disputes. In any given year, only a very few cases the Supreme Court accepts are personal injury cases.

The types of cases the Supreme Court accepts generally deal with broad public policy issues, and the opinions the Court issues generally affect more than just the individuals involved in the case before the Court. In addition to reviewing cases, the Court has administrative tasks, such as rulemaking and attorney disciplinary cases.

The Wisconsin Supreme Court is made up of seven justices. Each of these justices participates in hearing oral arguments, which are conducted for every case the Court hears, reading the briefs, and issuing a decision. The Court is rarely unanimous in its decision, and an opinion may include concurring opinions, where a justice agrees with the result but for different reasons, and dissenting opinions, where a justice disagrees with the result.

An opinion by the Wisconsin Supreme Court on a matter of state law, such as negligence or a contract dispute, is final. The United States Supreme Court is almost never involved in reviewing a State Supreme Court for cases involving the interpretation of state laws.

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