Writing for the Wisconsin Appellate Courts

1. Writing for the Wisconsin Appellate Courts Julie Anne Rich Supreme Court Commissioner Wisconsin Supreme Court

2. Overview • Structure of State Courts • How cases get to the Wisconsin Supreme Court • Petitions for Review • General strategies for appellate writing • Pro se litigants & ethical considerations

3. Wisconsin Circuit Courts • The Wisconsin circuit courts are the state's trial courts. There are 249 circuit court judges in Wisconsin. • The circuit courts are divided into branches with at least one branch in every county, with the exception of six counties that are paired off and share judges. The largest circuit is Milwaukee County with 47 judges.

4. Wisconsin Court of Appeals • Hears appeals from the circuit court. Primary function is to correct errors resulting from misapplication of well-settled law. The Court of Appeals also issues new rules of law. • Sixteen judges and four districts • District I serves Milwaukee County • District II is based in Waukesha • District III is based in Wausau • District IV is based in Madison. • Court of Appeals judges are elected in district wide elections for 6-year terms and must reside in the district to be eligible for election.

5. Wisconsin Supreme Court • Appellate jurisdiction to review by any case decided by the lower courts. • Review is discretionary • Authority to hear original actions • Supervisory authority over the lower courts • General administrative responsibility for the court system • Regulatory authority over judges & lawyers. • 7 justices, elected in statewide elections to 10-year terms • Chief Justice is the longest serving justice

7. How do cases get to the Supreme Court? Writs – supervisory, habeas Original Jurisdiction Petitions for Bypass Certifications Petitions for Review Review is discretionary

8. Filing a petition for review DON’T BE LATE • Wis. Stat. s. 808.10(1): Except as provided in sub. (2) and ss. 809.35(5) and 809.62(1m), the petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals. • If a motion for reconsideration has been filed, no party may file a petition for review until after the court of appeals issues an order on the motion for reconsideration. Wis. Stat. 809.10 (1m)(b) • Late filing is a basis for a claim of ineffective assistance of counsel

9. Supreme Court Review Willie W. Henderson is informed by his “jailhouse lawyer” Shaheed Taalib’din Madyun that the chances of being granted review by this court are very slim, and one has a better chance of being struck by lightning or winning the lottery than he do of being granted review on a pro se petition. However, in spite of the odds, this pro se petitioner believes he should be granted review.

10. Helpful Resources • Guide to Appellate Procedure for the Self-represented. • Filing a Petition for Review - A Guide to Seeking Review in the Wisconsin Supreme Court - 2011 • http://wicourts.gov/publications/guides/docs

11. Know your audience • Which court? • Fact-finding? • Error Correcting? • Law Developing? • Face it. You aren’t that funny.

12. General Tips Be Accurate: Strive for absolute accuracy of citation, quotation and fact-briefing. Be Reasonable: “There are combative trial lawyers whose briefs are violently partisan, and so extravagant in their contentions and assertions as to irritate a court trying to find a solution to the problem.”(1) Be Concise: “A . . . brief which cites in miscellaneous form 200-300 cases and other authorities is a pain in the neck.” Id. The court must eventually write an opinion, and usually relies heavily on the briefs. Try to write your brief in a form that will give the appellate court the most help.

13. Pro se litigation – challenges for courts and lawyers • 25 years ago self-representation was rare. • According to a 1974-76 study of domestic relations cases in Connecticut, only 2.7 % of these cases involved a self-represented litigant. • Today, self-representation is increasingly the norm, particularly in domestic relations cases . • In a 2005 study, the majority of divorce cases involved at least one pro selitigant: both spouses had counsel in only 46.4 % of cases. Neither spouse had counsel in a significant minority (27.7 %) of cases.

15. Attorney Misconduct & Discipline Office of Lawyer Regulation. SCR Chs. 21 and 22 The Wisconsin Supreme Court created the lawyer regulation system to carry out the court's constitutional responsibility to supervise the practice of law and protect the public from misconduct by persons practicing law in Wisconsin. The court has adopted standards of professional conduct for attorneys. See SCR Chapter 20. Failure to comply with the court's standards may constitute misconduct or may be evidence of a medical problem.

16. Ethics Hotline State Bar of Wisconsin Ethics Hotline Attorney Tim Pierce (608) 250-6168 (800) 444-9404, ext. 6168 Monday through Friday, 9 a.m. to 5 p.m.  The ethics hotline is an advisory service that puts you in touch with an experienced ethics lawyer who can discuss relevant Rules and case law and provide non-binding guidance to help Wisconsin lawyers conform their own conduct to the Rules of Professional Conduct for Attorneys.

17. Conclusion A University of Virginia Law School professor said to a graduating class: "Three years ago, when asked a legal question, you could answer, in all honesty, 'I don't know.' Now you can say with great authority, 'It depends.'" Best of luck to each of you in your professional future.