809.19(6)(d)2.
2. Fifteen days after the date on which the court accepts the appellant-cross-respondent's brief for filing.
809.19(6)(e)
(e) Each part of a combined brief shall comply with the form and length certification requirements of
sub. (8) (d).
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 14 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. A person shall file either 22 copies of a brief or appendix in the supreme court or the number that the court directs and shall serve 3 copies on each party.
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)(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 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.
Effective date note
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, filed 10-31-02, eff. 1-1-03.
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.
809.19 Annotation
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 Annotation
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
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.
809.21(2)
(2) A party may file at any time a motion for summary disposition of an appeal.
Section 809.14 governs the procedure on the motion.
809.21 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.21 Note
Judicial Council Committee's Note, 1978: The basic concept in former Rule 251.54 of allowing the Supreme Court to dispose of appeals summarily is continued, but Rule 809.21 specifically authorizes a motion for this purpose. Such a motion was often used under prior procedure, but the rules did not expressly authorize it. [Re Order effective July 1, 1978]
809.22
809.22
Rule (Oral argument). 809.22(1)
(1) The court shall determine whether a case is to be submitted with oral argument or on briefs only.
809.22(2)
(2) The court may direct that an appeal be submitted on briefs only if:
809.22(2)(a)1.
1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;
809.22(2)(a)2.
2. Are on their face without merit and for which no supporting authority is cited or discovered; or
809.22(2)(a)3.
3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
809.22(2)(b)
(b) 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.
809.22(3)
(3) The court shall determine the amount of time for oral argument allowed to each party in a case either by general or special order.
809.22(4)
(4) On motion of any party or its own motion, the court may order that oral argument be heard by telephone.
809.22 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
809.22 Note
Judicial Council Committee's Note, 1978: The Supreme Court has for a number of years scheduled some cases for submission on briefs only without oral argument in an effort to accommodate its burgeoning caseload. The criteria by which the court decides whether a case is to have oral argument have never been formally adopted. This rule is a statement of those criteria. Counsel should address these criteria in their briefs in discussing the question of the need for oral argument. See Rule 809.19 (1) (c). Flexibility is provided by sub. (3) as to the length of oral argument in order to meet the needs of an individual case. It may be appropriate, for example, to have an oral argument for the sole purpose of allowing the court to ask questions of counsel. [Re Order effective July 1, 1978]
809.22 Note
Judicial Council Note, 1988: Sub. (4) [created] authorizes oral arguments to be heard by telephone conference on motion of any party or the court of appeals. [Re Order effective Jan. 1, 1988]
809.23
809.23
Rule (Publication of opinions). 809.23(1)(a)(a) While neither controlling nor fully measuring the court's discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion:
809.23(1)(a)1.
1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;
809.23(1)(a)2.
2. Applies an established rule of law to a factual situation significantly different from that in published opinions;
809.23(1)(a)3.
3. Resolves or identifies a conflict between prior decisions;
809.23(1)(a)4.
4. Contributes to the legal literature by collecting case law or reciting legislative history; or
809.23(1)(a)5.
5. Decides a case of substantial and continuing public interest.
809.23(1)(b)1.
1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;
809.23(1)(b)2.
2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;
809.23(1)(b)3.
3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;
809.23(1)(b)5.
5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;
809.23(2)
(2) Decision on publication. The judges of the court of appeals who join in an opinion in an appeal or other proceeding shall make a recommendation on whether the opinion should be published. A committee composed of the chief judge or a judge of the court of appeals designated by the chief judge and one judge from each district of the court of appeals selected by the court of appeals judges of each district shall determine whether an opinion is to be published.
809.23(3)
(3) Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.
