809.19(8)(a)2.
2. Except as provided in
subd. 3. and
s. 809.43, a person shall file either 10 copies of a brief or appendix in the court of appeals or the number that the court directs and shall serve 3 copies on each party.
809.19(8)(a)3.
3. Except as provided in
s. 809.43, a person who is found indigent under
s. 814.29 (1) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party. A prisoner who has been granted leave to proceed without prepayment of fees under
s. 814.29 (1m) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party.
809.19(8)(a)4.
4. In addition to the copies required in
subds. 1.,
2., and
3., all parties represented by counsel shall file one electronic copy of each brief as provided in
s. 809.19 (12) and may file one electronic copy of each appendix as provided in
s. 809.19 (13).
809.19(8)(b)
(b)
Form. A brief and appendix must conform to the following specifications:
809.19(8)(b)1.
1. Produced by a duplicating or copying process that produces a clear, black image of the original on white paper. Briefs shall be produced by using either a monospaced font or a proportional serif font. Carbon copies may not be filed.
809.19(8)(b)3.b.b. If a monospaced font is used: 10 characters per inch; double-spaced; a 1.5 inch margin on the left side and a one-inch margin on all other sides.
809.19(8)(b)3.c.
c. If a proportional font is used: proportional serif font, minimum printing resolution of 200 dots per inch, 13 point body text, 11 point for quotes and footnotes, leading of minimum 2 points, maximum of 60 characters per full line of body text. Italics may not be used for normal body text but may be used for citations, headings, emphasis and foreign words.
809.19(8)(b)4.
4. Securely bound only on the left side with heavy strength staples or by means of velobinding or the "perfect" ("hot glue") binding method, with pagination at the center of the bottom margin. A brief may be bound by another method if authorized in writing by the clerk of the court.
809.19(8)(c)1.1. Those portions of a party's or a guardian ad litem's brief referred to in
sub. (1) (d),
(e) and
(f) shall not exceed 50 pages if a monospaced font is used or 11,000 words if a proportional serif font is used.
809.19(8)(c)2.
2. Appellant's reply brief or a brief filed under
sub. (7) shall not exceed 13 pages if a monospaced font is used or 3,000 words if a proportional serif font is used.
809.19(8)(d)
(d)
Form and length certification. Counsel shall append to the brief and appendix a signed certification that the brief and appendix meet the form and length requirements of
pars. (b) and
(c) in the following form:
I hereby certify that this brief conforms to the rules contained in
s. 809.19 (8) (b) and
(c) for a brief and appendix produced with a [monospaced] [proportional serif] font. The length of this brief is .... [pages] [words].
Signed: ....
Signature
For purposes of the certification and length requirements of this subsection, counsel may use the word count produced by a commercial word processor available to the general public.
809.19(8m)
(8m) Guardian ad litem brief. If the guardian ad litem chooses to participate in an appeal and takes the position of an appellant, the guardian ad litem's brief shall be filed within 40 days after the filing in the court of the record on appeal. If the guardian ad litem chooses to participate in an appeal and takes the position of a respondent, the guardian ad litem's brief shall be filed within 30 days after service of the appellant's brief. If an unpublished opinion is cited under
s. 809.23 (3) (a) or
(b), a copy of the opinion shall be provided in an appendix to the brief. If the guardian ad litem chooses not to participate in an appeal of an action or proceeding, the guardian ad litem shall file with the court a statement of reasons for not participating within 20 days after the filing of the appellant's brief.
809.19(9)
(9) Brief covers. Each brief or appendix shall have a front and back cover. The front cover shall contain the name of the court, the caption and number of the case, the court and judge appealed from, the title of the document, and the name and address of counsel filing the document. Except as provided in
s. 809.81 (8), the caption shall include the full name of each party in the circuit court and shall designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. The covers of the appellant's brief shall be blue; the respondent's, red; a combined respondent-cross-appellant's, red with a blue divider page; a combined reply-cross-respondent's, gray with a red divider page; a guardian ad litem's, yellow; a person other than a party, green; the reply brief, gray; and the appendix, if separately printed, white. In the event the supreme court grants a petition for review of a decision of the court of appeals, the covers of the briefs of each party shall be the same color as the cover of that party's briefs filed in the court of appeals. In the supreme court, "petitioner" shall be added to the party designation of the petitioner, and the respondent's party designation shall remain the same as in the court of appeals.
809.19(10)
(10) Citation of supplemental authorities. If pertinent authorities decided after briefing come to the attention of a party or a nonparty under
sub. (7) or a guardian ad litem under
sub. (8m) after the party's or nonparty's or guardian ad litem's brief has been filed, or after oral argument but before decision, the party, nonparty, or guardian ad litem may promptly advise the clerk of the court, by letter, and serve a copy of that letter on all parties to the appeal. If the new authority is a decision of the Wisconsin court of appeals, the authority is considered decided for purposes of this subsection on the date of an order for publication issued under
s. 809.23 (2). The letter shall do the following:
809.19(10)(b)
(b) Identify the page of the brief or the point that was argued orally to which the citations pertain.
809.19(10)(c)
(c) For each authority that is cited, briefly discuss the proposition that the authority supports.
809.19(11)
(11) Response to supplemental authorities. A response to the letter under
sub. (10) may be filed within 11 days after service of that letter. The response shall briefly discuss the reason why each authority does not support the stated proposition, unless the proposition is not disputed.
809.19(12)(a)(a)
General rule. An attorney filing a brief under these rules shall file with the court a copy of the brief in electronic form. A self-represented party is not required to file an electronic copy of the brief, but may do so as provided for in this subsection. Notwithstanding
s. 801.17 (9), the paper copy of the brief remains the official court record.
809.19(12)(b)
(b) Process. Attorneys and self-represented parties filing an electronic brief shall use the electronic filing system under
s. 801.17.
809.19(12)(c)
(c) Format. The electronic brief shall be in text-searchable Portable Document Format (PDF).
809.19(12)(d)
(d) Filing. The date on which the paper brief is filed under
s. 809.80 (3) (b) shall be the official date of filing of the brief. The electronic copy of the brief shall be electronically transmitted on or before the date that the paper brief is filed under
s. 809.80 (3) (b). An electronic copy of a brief submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date, provided it is subsequently accepted by the clerk upon review. An electronic brief submitted after the close of regular business hours shall be considered transmitted the next business day.
809.19(12)(e)
(e) Corrections. If corrections are required to be made, both the paper and electronic copies shall be corrected.
809.19(12)(f)
(f) Certification. In addition to the form and length certification required under
s. 809.19 (8) (d), attorneys and self-represented parties shall certify that the text of the electronic copy of the brief is identical to the text of the paper copy of the brief.
809.19(12)(g)
(g) Motion for relief. An attorney who lacks technological capability to comply with this subsection may file a motion under
s. 809.14 for relief from the electronic filing requirements at the time the attorney files the paper brief. An attorney shall show good cause why it is not feasible to file a copy of the brief electronically.
809.19(13)(a)(a)
General rule. An attorney filing an appendix under these rules may file with the court a copy of the appendix in electronic form. A self-represented party is not required to file an electronic copy of the appendix, but may do so as provided for in this subsection. Notwithstanding
s. 801.17 (9), the paper copy of the appendix remains the official court record.
809.19(13)(b)
(b) Process. Attorneys and self-represented parties filing an electronic appendix shall use the electronic filing system under
s. 801.17.
809.19(13)(c)
(c) Format. An electronic appendix shall be in Portable Document Format (PDF). An electronic appendix shall be filed as a document or documents separate from the brief.
809.19(13)(d)
(d) Filing. The date on which the paper appendix is filed under
s. 809.80 (3) (b) shall be the official date of filing of the appendix. The electronic copy of the appendix shall be electronically transmitted on or before the date that the paper appendix is filed under
s. 809.80 (3) (b). An electronic copy of an appendix submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date, provided it is subsequently accepted by the clerk upon review. An electronic appendix submitted after the close of regular business hours shall be considered transmitted the next business day.
809.19(13)(e)
(e) Corrections. If corrections are required to be made, both the paper and electronic copies shall be corrected.
809.19(13)(f)
(f) Certification. In addition to the certification required under
s. 809.19 (2) (b) and
(3) (b), attorneys and self-represented parties shall certify that the content of the electronic copy of the appendix is identical to the content of the paper copy of the appendix.
809.19 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979);
1979 c. 110; Sup. Ct. Order, 104 Wis. 2d xi (1980);
1981 c. 390 s.
252; Sup. Ct. Order, 111 Wis. 2d xiii (1983); Sup. Ct. Order, 112 Wis. 2d xv (1983); Sup. Ct. Order, 115 Wis. 2d xv (1983); Sup. Ct. Order, 123 Wis. 2d xx (1985); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 161 Wis. 2d xiii (1981); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 167 Wis. 2d xiii (1992); Sup. Ct. Order, 171 Wis. 2d xiii, xvii, xxxvii (1992); Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv;
1993 a. 486;
1995 a. 224; Sup. Ct. Order No.
97-01, 208 Wis. 2d xxiii (1997);
1997 a. 35; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No.
04-11, 2005 WI 149, 283 Wis. 2d xix; Sup. Ct. Order No.
06-02, 2006 WI 118, 291 Wis. 2d xiii; Sup. Ct. Order No.
07-03, 2007 WI 129, 303 Wis. 2d xxvii; Sup. Ct. Order No.
08-15 and 08-18, 2009 WI 4, 311 Wis. 2d xxix;
2009 a. 180; Sup. Ct. Order No.
10-01 and 10-02, 2010 WI 42, 323 Wis. 2d xxiii; Sup. Ct. Order No.
13-10, 2014 WI 45, filed 6-27-14, eff. 1-1-15.
809.19 Note
Judicial Council Committee's Note, 1978: Sub. (1). The format for briefs established in former Rule 251.34 is generally followed except that the requirement of a synopsis of the argument in the table of contents is eliminated. Former Rule 251.34 (1) required the synopsis and gave 200 Wis. 530 as an illustration. The synopsis was no longer included in most briefs and if it was, often was very lengthy and served no real purpose. It is replaced in the table of contents by a shorter, one sentence summary of each section of the argument portion of the brief. New statements pertaining to the need for oral argument and whether the opinion in the case will set precedent and thus should be published are added. The purpose of the latter is to assist the court in screening cases for oral argument or submission on briefs.
809.19 Note
Sub. (2). The lengthy appendix with the narrative of testimony required by former Rule 251.34 (5) is replaced with the system used in the United States Court of Appeals for the Seventh Circuit. Under this system the original record serves as the primary evidence of what occurred in the trial court. The appendix becomes a very abbreviated document with only those items absolutely essential to an understanding of the case. It is designed to be nothing more than a useful tool to the members of the court. The failure to include some item in the appendix has no effect on the ability or willingness of the court to consider any matter in the record. This change, combined with the elimination of the requirement of printed briefs, should reduce the cost of an appeal.
809.19 Note
Sub. (5). Each appellant in a case has the right to file a separate brief and need not share a brief with co-appellants.
809.19 Note
Sub. (6). The parties to a cross-appeal can file the same briefs as the parties to the main appeal. Thus the cross-appellant can file a 40 page brief as cross-appellant in addition to his 40 page brief as respondent. The cross-appellant can also combine both briefs in a single brief but is limited to the page limits on each section of brief. A cross-appellant filing a 30 page brief as respondent is still limited to a 40 page brief as cross-appellant.
809.19 Note
Sub. (7). The practice under former Rule 251.40 is modified to require the request to file an amicus curiae brief be made by motion rather than by letter. Rule 29, FRAP. The motion should indicate the interest of the amicus and why a brief by the amicus is desirable.
809.19 Note
Subs. (8) and (9). In addition to briefs produced by the standard typographical process, briefs produced by a mimeograph or photocopy process from typewritten copy may also be filed. The principal objective is to reduce the cost of an appeal to the Court of Appeals. The specifications for the printed and typewritten pages are designed to result in briefs of approximately an equal number of words no matter which process is used. The paper size of 8-1/2 x 11 is specified for the sake of uniformity and ease of handling.
809.19 Note
Colors for covers are specified to permit easy identification of the briefs. [Re Order effective July 1, 1978]
809.19 Note
Judicial Council Committee's Note, 1979: Sub. (8) (a) previously required that 30 copies of a brief or appendix be filed in either the Court of Appeals or Supreme Court. The number of copies to be filed in the Court of Appeals or Supreme Court has been reduced to 20 copies to reflect the smaller number of judges deciding an appeal before the Court of Appeals and the difficulty the Supreme Court is facing in having enough storage space to retain the 30 copies of a brief previously required. The provision in Rule 809.43 requiring the filing of 10 copies of a brief and appendix in an appeal heard by one judge remains unchanged. [Re Order effective Jan. 1, 1980]
809.19 Note
Judicial Council Committee's Note, 1981: Sub. (1) (e) is amended to incorporate
SCR 80.02, governing citation of a published court of appeals or supreme court opinion in a brief, memorandum or other document filed with the court of appeals or supreme court.
809.19 Note
Sub. (8) (b) 4 previously required that a brief and appendix be bound only on the left side with staple or tape. A sufficient number of heavy strength staples are to be used to assure that the briefs and appendix remain securely bound when used by the court of appeals and supreme court. The prior alternative method of binding the brief and appendix solely with tape is repealed.
809.19 Note
Sub. (9) is amended to clarify that both a front and back cover of a brief and appendix are required. [Re Order effective Jan. 1, 1982]
809.19 Note
Judicial Council Note, 1988: Sub. (7) (b) permits nonparties to request permission to file a brief supporting or opposing a petition for the Supreme Court to review a decision of the Court of Appeals or to take original jurisdiction. In these cases, the motion and the brief shall be filed together, within the time permitted for response by the opposing party.
809.19 Note
Revised sub. (8) (c) clarifies that the page limit does not include the table of contents, table of cases and other authorities, statement of issues, statement on oral argument and publication, appendix or supplemental appendix. [Re Order effective Jan. 1, 1989]
809.19 Note
Judicial Council Note, 2001: Subsection (1) (h) requires a signature on briefs. Subsection (1) (i) makes identification of the parties consistent and less confusing. Subsection (3) was revised to address a situation in which the appellant's brief is served on the respondent, but has not yet been accepted for filing by the court. If the respondent undertakes to prepare its brief within 30 days after service of the appellant's brief and the appellant's brief has not yet been accepted for filing, the respondent will have wasted time and energy if the appellant's brief ultimately is rejected. The last sentence of sub. (4) was added to require record references and a conclusion in a reply brief. Subsection (6) was rewritten to clarify briefing requirements in cross-appeals. The time limit in sub. (7) (c) was changed from 10 to 14 days. Please see the comment to s. 808.07 (6) concerning time limits. The reference to s. 809.43 was deleted in sub. (8) (a) 1. because the greater number of copies is needed when a single-judge appeal reaches the supreme court. Subsection (8) (a) 3. was amended to apply to pro se parties only. Subsection (8) (b) 4. was amended to allow "velobinding" of briefs, a process commonly accepted but not authorized by statute. Subsection (9) requires parties to use the complete case caption. Parties shall not abridge the caption by use of "et al" or similar phrases. Subsections (10) and (11) are new and establish a procedure for supplementing briefs or oral argument with pertinent authorities that subsequently come to the attention of a party or an amicus curiae, who is denoted a "nonparty" under sub. (7), or a guardian ad litem under sub. (8m). This procedure is based upon Federal Rule of Appellate Procedure 28 (j) and Circuit Rule 28 (e) of the Seventh Circuit Court of Appeals. [Re Order No. 00-02 effective July 1, 2001]
809.19 Note
Judicial Council Note, 2002: Occasionally an appellant's brief is filed before the record is filed with the appellate court clerk, especially in cases involving pro se appellants. The amendments to subs. (3) and (6) (b) 1. conform to current practice by establishing the due date for the respondent's brief or respondent-cross-appellant's brief as the latest of thirty days after date of service of the appellant's brief (plus three days if service is by mail), thirty days after the date on which the court accepts the appellant's brief or appellant-cross-respondent's brief for filing, or thirty days after the date on which the record is filed in the office of the clerk.
809.19 Note
Subsection (9) is amended to conform to the party designations used by the clerk's office when a petition for review is granted. [Re Order No. 02-01 effective January 1, 2003]
809.19 Annotation
Comment, October 2005: As the number of appeals has increased, the Court of Appeals' reliance on appendices during the decision-making process has increased. The Court of Appeals requests that Wis. Stat. § (Rule) 809.19 (2) (b) be created to require that appellant's counsel certify compliance with Wis. Stat. § (Rule) 809.19 (2) (a) (as renumbered by this order), that requires an appellant's brief include an appendix and sets forth the contents of the appendix. The Court of Appeals believes that a certification requirement, similar to the form and length certification required by Wis. Stat. § (Rule) 809.19 (8) (d) will result in increased compliance with renumbered Wis. Stat. § (Rule) 809.19 (2) (a) and improve the quality of appendices that are filed with the court. [Re Sup. Ct. Order No.
04-11]
809.19 Note
NOTE: Sup. Ct. Order No.
08-15 and 08-18,
2009 WI 4, states: "The following Comment to Wis. Stat. §§ (Rule) 809.19 (12) and 809.19 (13) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute."
809.19 Note
Comment, 2008: An electronic brief required under s. 809.19 (12) and an electronic appendix requested under s. 809.19 (13) are in addition to and not a replacement for the paper brief and appendix required under s. 809.19. The filing requirement is satisfied only when the requisite number of paper copies of the brief and appendix and the electronic brief are filed.
809.19 Note
The filing of an electronic appendix is encouraged, but not required. These rules do not provide for total electronic filing at the appellate level. Accordingly, the paper copies of appellate briefs and appendices constitute the official court record.
809.19 Note
An electronic brief shall be submitted to the court as a text-searchable Portable Document Format (PDF) document. "PDF" is a universal file format that preserves the fonts, formatting, pagination, and graphics of a source document. A text-searchable brief is created by electronically converting the original word processing file to a PDF document. An electronic appendix may be submitted as a non-text-searchable PDF document. A non-text-searchable appendix is created by scanning the paper document to create a PDF document.
809.19 Note
Electronic briefs may be enhanced with internal links (such as a table of contents with links to locations in the brief) or external links (links to websites containing the text of cases or statutes cited in the brief). External links in an electronic brief shall not require a password for access to the case or statute. No enhancement to an electronic brief shall alter the text of the brief.
809.19 Note
All electronic briefs shall be submitted in a single electronic file. The file containing the electronic brief shall not contain the appendix or any other document or material. An electronic appendix containing more than 200 pages may be split into smaller electronic files.
809.19 Note
Sample electronic brief certification form:
809.19 Note
CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (12)
809.19 Note
I hereby certify that:
809.19 Note
I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of s. 809.19 (12). I further certify that:
809.19 Note
This electronic brief is identical in content and format to the printed form of the brief filed as of this date.
809.19 Note
A copy of this certificate has been served with the paper copies of this brief filed with the court and served on all opposing parties.
809.19 Note
Signed ....
809.19 Note
Signature
809.19 Note
Sample electronic appendix certification form:
809.19 Note
CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (13)
809.19 Note
I hereby certify that:
809.19 Note
I have submitted an electronic copy of this appendix, which complies with the requirements of s. 809.19 (13). I further certify that:
809.19 Note
This electronic appendix is identical in content to the printed form of the appendix filed as of this date.
809.19 Note
A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.
809.19 Note
Signed ....
809.19 Note
Signature
809.19 Note
[Re Order No. 08-15 and 08-18 effective July 1, 2009]
809.19 Annotation
Appellate counsel's appendix containing only a copy of the judgment of conviction, a notice of motion and motion to suppress, and a notice of intent to pursue postconviction relief did not meet the standard under sub. (2) (a) to contain "essential to an understanding of the issues raised." When counsel certified that the essential items were in the appendix when they were not, the certification was false and counsel was subject to sanction. State v. Bons,
2007 WI App 124,
301 Wis. 2d 227,
731 N.W.2d 367,
06-1625.
809.19 Annotation
When the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of sub. (2) (a) and (b) should not be found and why the attorney should not pay a monetary penalty for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification. The order to show cause should state that alternatively, the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation. State v. Nielsen,
2011 WI 94,
337 Wis. 2d 302,
805 N.W.2d 353,
10-0387.
809.19 Annotation
The page length limits in sub. (8) apply in original jurisdiction actions. Watts v. Thompson,
116 F.3d 220 (1997).
809.20
809.20
Rule (Assignment and advancement of cases). The court may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.
809.20 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.20 Note
Judicial Council Committee's Note, 1978: This rule incorporates the present unwritten procedure for having the submission of a case advanced. It also specifies the factors that may affect the advancement of a case. [Re Order effective July 1, 1978]
809.21
809.21
Rule (Summary disposition). 809.21(1)
(1) The court upon its own motion or upon the motion of a party may dispose of an appeal summarily.
