809.15 History
History: Sup. Ct. Order, 83 W (2d) xiii; Sup. Ct. Order, 104 W (2d) xi; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 403.
809.15 Note
Judicial Council Committee's Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.
809.15 Annotation
Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.
809.15 Annotation
Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.
809.15 Annotation
Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]
809.15 Note
Judicial Council Committee's Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re Order effective Jan. 1, 1982]
809.15 Note
Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
809.15 Annotation
Appellant's failure to file motion under (3) did not constitute waiver of right to challenge adequacy of transcript. State v. Perry, 136 W (2d) 92, 401 NW (2d) 748 (1987).
809.15 Annotation
It is the appellant's responsibility to assure the record is complete; where the record is incomplete, it is assumed the missing material supports the trial court ruling. Fiumefreddo v. McLean, 174 W (2d) 10, 496 NW (2d) 226 (Ct. App. 1993).
809.16
809.16
Rule (Transcript of reporter's notes). 809.16(1)
(1) Within 10 days of the filing of the notice of appeal, the appellant shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings and service of copies and file in the court a designation of the portions of the reporter's notes that have been ordered. Any other party may file within 10 days of service of the appellant's notice, a designation of additional portions to be included in the transcript. The appellant shall file within 10 days of the service of the other party's designation the statement required by
s. 809.11 (4) covering the other party's designations. If the appellant fails or refuses to order the designated portions, the other party may order the portions or file a motion with the trial court for an order requiring the appellant to do so.
809.16(3)
(3) The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the trial court and notify the clerk of the court within 60 days of the date the transcript was ordered and arrangements made for payment.
809.16(4)
(4) A reporter may obtain an extension for filing the transcript only by motion showing good cause filed in the court and served on all parties to the appeal.
809.16(5)
(5) If a reporter fails to file timely a transcript, the court may declare a reporter ineligible to act as an official court reporter in any court proceeding and prohibit the reporter from performing any private reporting work until the overdue transcript is filed.
809.16 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979);
1981 c. 390 s.
252.
809.16 Cross-reference
Cross-reference: See s.
809.80 concerning serving copies of papers required to be filed in the appellate or trial courts.
809.16 Note
Judicial Council Committee's Note, 1978: Subs. (1) and (2). The procedure in Rule 10 (b), FRAP, for the ordering of the transcript is combined with former s. 817.118. A time limit is placed on ordering the transcript to prevent the failure to do so from being a cause of delay in the appellate process.
809.16 Annotation
Subs. (3), (4) and (5). The reporter is given 60 days from the date the transcript is ordered in which to complete the transcript, a reduction of up to 30 days from the total time allowed in former s. 817.115. The obligation is placed on the reporter rather than the appellant to obtain an extension for filing the transcript because this is a matter not in the control of the appellant. The application for an extension is filed in the Court of Appeals rather than the trial court because of the primary concern of the Court of Appeals with cases pending before it and because of the natural reluctance of the trial judge to deny a request made by his own appointee.
809.16 Annotation
The power of the Court of Appeals to impose sanctions upon a court reporter for failing to file a transcript on time is expressly recognized. These sanctions were among those recommended in 1971 by a special committee appointed by the Supreme Court to study the problem of delayed transcripts.
809.16 Annotation
The provisions of former s. 817.117, detailing the procedure for approval of the transcript, are eliminated in favor of the federal procedure which treats the correction of the transcript the same as correction of any other part of the record. Thus, correction of any alleged error in the transcript will be made under Rule 809.15 (3). [Re Order effective July 1, 1978]
809.16 Note
Judicial Council Committee's Note, 1979: Subs. (1) and (3) are amended to clarify that the court reporter is responsible for serving copies of the transcript on the parties. The appellant is responsible for initiating the arrangements for preparation and payment of the original and copies of the transcript. Rule 809.16 does not prohibit any party from waiving the service of copies of the transcript. [Re Order effective Jan. 1, 1980]
809.16 Annotation
Procedure established for use when court reporter's notes are lost while post-trial proceedings are pending. State v. DeLeon, 127 W (2d) 74, 377 NW (2d) 635 (Ct. App. 1985).
809.17
809.17
Rule (Expedited appeals program and pre-submission conference). 809.17(1)
(1) In order to minimize appellate delay and reduce its backlog, the court of appeals may develop an expedited appeals program. The program may involve mandatory completion of docketing statements by appellant's counsel and participation in presubmission conferences at the direction of the court, but participation in the court's accelerated briefing and decision process is voluntary. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.
809.17(2)
(2) The court of appeals may require all attorneys of record in any appeal to participate in a presubmission conference, either by telephone or in person, with an officer of the court. An attorney of record with no direct briefing interest in the appeal may waive his or her participation in the conference by written notice to the court.
809.17 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 131 W (2d) xvi (1986).
809.17 Annotation
Court of Appeals Note, 1986: Section (Rule) 809.17 is repealed and recreated to give the court of appeals authority to administer its expedited appeals program pursuant to Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended 1986). The rule replaces a similar delegation of authority to the chief judge of the court of appeals by order of the supreme court dated December 19, 1983. [Re Order effective January 1, 1987]
809.17 Annotation
Although a formal order was subsequently signed, the trial court's letter to the parties informing them that a motion for reconsideration was denied was a denial "on the record" under sub. (3) and the time for filing an appeal commenced on the date of the letter. Orth v. Ameritrade, Inc. 187 W (2d) 162, 522 NW (2d) 30 (Ct. App. 1994).
809.18
809.18
Rule (Voluntary dismissal). An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the trial court. The dismissal of an appeal does not affect the status of a cross-appeal or the right of a respondent to file a cross-appeal.
809.18 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1995 a. 224.
809.18 Note
Judicial Council Committee's Note, 1978: An appeal may be dismissed by the appellant at any time prior to a court decision on the appeal without approval of the court or the respondent. This changes the former procedure and modifies Rule 42, FRAP. The Rule specifically protects a respondent who has or intends to file a cross-appeal, and for this reason the appellant is authorized to dismiss the appeal at will. The filing of a notice of dismissal does not affect the liability of the appellant for costs or fees, or the power of the court to impose penalties under Rule 809.83 (1). [Re Order effective July 1, 1978]
809.18 Annotation
This section does not command the dismissal of a petition for a supervisory writ upon the filing of a notice of voluntary dismissal. A petition for a supervisory writ is not an "appeal". Interest of Peter B. 184 W (2d) 57, 616 NW (2d) 746 (Ct. App. 1994).
809.18 Annotation
The court of appeals must dismiss an appeal when an appellant files a notice of voluntary dismissal before the court issues its decision on the appeal. State v. Lee, 197 W (2d) 960, 542 NW (2d) 143 (1996).
809.19
809.19
Rule (Briefs and appendix). 809.19(1)
(1)
Brief of appellant. The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:
809.19(1)(a)
(a) A table of contents with page references of the various portions of the brief, including headings of each section of the argument, and a table of cases arranged alphabetically, statutes and other authorities cited with reference to the pages of the brief on which they are cited.
809.19(1)(b)
(b) A statement of the issues presented for review and how the trial court decided them.
809.19(1)(c)
(c) A statement with reasons as to whether oral argument is necessary and a statement as to whether the opinion should be published and, if so, the reasons therefor.
809.19(1)(d)
(d) A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.
809.19(1)(e)
(e) An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and
SCR 80.02.
809.19(1)(f)
(f) A short conclusion stating the precise relief sought.
809.19(1)(g)
(g) Reference to an individual by first name and last initial rather than by his or her full name when the record is required by law to be confidential.
809.19(2)
(2) Appendix. The appellant's brief shall include a short appendix providing relevant trial court record entries, the findings or opinion of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court's reasoning regarding those issues. The appendix shall include a table of contents. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
809.19(3)(a)(a) The respondent shall file a brief within 30 days of the service of the appellant's brief. The brief must conform with
sub. (1), except that the statement of issues and the statement of the case may be excluded.
809.19(3)(b)
(b) The respondent may file with his or her brief a supplemental appendix in conformity with
sub. (2).
809.19(4)
(4) Reply brief. The appellant shall file within 15 days of the service of the respondent's brief a reply brief or statement that a reply brief will not be filed.
809.19(5)
(5) Consolidated and joint appeals. Each appellant in consolidated appeals or a joint appeal and each co-appellant may file a separate brief or a joint brief with another appellant or co-appellant. A joint brief must not exceed the page allowance for a single appellant.
809.19(6)
(6) Cross-appeal. The parties in a cross-appeal have the same briefing rights as the parties in an appeal, except that a respondent-cross-appellant shall, within 30 days after service of the appellant-cross-respondent's brief, file a combined respondent-cross-appellant's brief that does not exceed the separate page limitations for each portion of the brief. The appellant-cross-respondent shall, within 30 days after service of the respondent-cross-appellant's brief, file a combined reply-cross-respondent's brief that does not exceed the separate page limitations for each portion of the brief.
809.19(7)(a)(a) A person not a party may by motion request permission to file a brief. The motion shall identify the interest of the person and state why a brief filed by that person is desirable.
809.19(7)(b)
(b) If the brief will support or oppose a petition under
s. 809.62 or
809.70, the brief shall accompany the motion and shall be filed within the time permitted for the opposing party to file a response to the petition.
809.19(7)(c)
(c) Except as provided in
par. (b), the motion shall be filed not later than 10 days after the respondent's brief is filed and the brief shall be filed within the time specified by the court.
809.19(8)
(8) Number, form and length of briefs and appendices. 809.19(8)(a)1.1. Except as provided in
s. 809.43, a person who files a brief or appendix in the supreme court shall file 15 copies with the court, or such other number as the court directs, and serve 3 copies on each party.
809.19(8)(a)2.
2. Except as provided in
subd. 3. and
s. 809.43, a person who files a brief or appendix in a court of appeals shall file 10 copies with the court, or such other number as the court directs, and 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 and files a brief or appendix in the court of appeals shall file the original and 4 copies with the court and serve one copy on each party.
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; 1.5 inch margin on the left side and 1 inch margins on the other 3 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 the "perfect" ("hot glue") binding method, with pagination at the center of the bottom margin. A brief may be bound by other methods 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 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. 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.
809.19 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979);
1979 c. 110; Sup. Ct. Order, 104 W (2d) xi (1980);
1981 c. 390 s.
252; Sup. Ct. Order, 111 W (2d) xiii (1983); Sup. Ct. Order, 112 W (2d) xv (1983); Sup. Ct. Order, 115 W (2d) xv (1983); Sup. Ct. Order, 123 W (2d) xx (1985); Sup. Ct. Order, 146 W (2d) xxxiii (1988); Sup. Ct. Order, 151 W (2d) xvii (1989); Sup. Ct. Order, 161 W (2d) xiii (1981); Sup. Ct. Order, 164 W (2d) xxix (1991); Sup. Ct. Order, 167 W (2d) xiii (1992); Sup. Ct. Order, 171 W (2d) xiii, xvii, xxxvii (1992); Sup. Ct. Order No.
93-20, 179 W (2d) xxv;
1993 a. 486;
1995 a. 224.
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 Annotation
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 Annotation
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 Annotation
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 Annotation
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 Annotation
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 Annotation
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 Annotation
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 Annotation
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.
