Appellate Motions – Be Prepared to Wait

WDC Journal Edition: Winter 2007
By: Beth Hanan - Gass Weber Mullins LLC

Think before you file. The number of motions presented to the Wisconsin Court of Appeals has increased exponentially in the last few years. In 2005, the last year for which statistics are available, the court entertained over 10,600 motions, an average of somewhat more than three motions per appeal.[i] District I handled almost one-third of those motions, although many of them arose in pro se cases. Compounding the problem, requests for staffing increases have not matched the added workload. Because motions are handled on a first-come, first-served basis, a movant should be prepared, figuratively, to wait in line.

Appellate courts see a variety of motion practice. Only some of the most common motions are addressed in this article. Requests to extend briefing time are fairly routine. Any request to modify the normal timing set by the rules of appellate procedure should comply with the general motion procedure set out in Wis. Stat. (Rule) § 809.14. Section 809.82(2) (a) provides that, unless otherwise precluded,

The court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribe by these rules or court order for doing any act, or waive or permit an act to be done after the prescribed time.

A request for additional time to file a brief should be short and specific. Unlike the practice in some jurisdictions, in Wisconsin it is not necessary to describe your full work calendar. Instead, briefly describe the basis for your request, and identify a reasonable length of additional time needed as opposed to making an open-ended request. Repeated motions to extend briefing times are less likely to succeed.[ii] In contrast, a request to extend briefing in order to facilitate possible settlement is very likely to be granted. While section 809.14(1) allows 11 days for the other party to respond to your motion, when the motion requests a simple deadline extension, the clerk usually submits the motion without waiting for the response time to run.[iii]

There are exceptions to the rule permitting requests for extensions. The time to file a notice of civil appeal, or notice of cross-appeal, cannot be extended by motion because a timely notice of appeal is jurisdictional.[iv] Nor will the court grant an extension of the time limit to file a motion for reconsideration.[v]

Occasionally parties request an extension of page limits imposed by Wis. Stat. (Rule) § 809.19(8)(c). As with any motion, good cause for the request should be shown. Given the huge volume of appeals handled each year, page extension requests are not encouraged. Before deciding if you need to request a page extension don’t forget to include in your word count footnotes and any imaged documents inserted into your brief text. A party may not obtain a de facto extension by incorporating by reference briefing filed with the circuit court.[vi]

Once in a while, a motion may present a close call and involve factual disputes. In that case, fact-finding may be needed. Because the court of appeals is not permitted or equipped to find facts, the court can to remand to the circuit court for fact-finding before deciding certain motions.[vii]

Another fairly common appellate motion is a request to supplement or correct the record. Often, however, such a request can be avoided completely if the lawyers scrutinize the clerk of circuit court’s compilation of the record, and request supplementation or correction before the official record is sent to Madison. To the extent lawyers for both sides can agree to the change, motion briefing and delay can be avoided. If a motion to alter the record appears necessary, it is best to bring it before the first brief is due.

Overall, obtaining opposing counsel’s agreement to your motion will expedite the court’s decision on the motion, and may increase the likelihood it will be granted. During the pendency of a motion which may affect the content of the brief or disposition of the appeal, the briefing deadlines are stayed.[viii] The rules require that copies of this type of motion also be served on the clerk of the circuit court, as the outcome may affect record preparation or other duties of the clerk.[ix]

Occasionally parties will file motions to strike all or part of an opponent’s brief. Wisconsin courts often will strike portions of a brief which refer to materials not presented to the circuit court.[x] Yet in some circumstances, if the court concludes that the contested material was submitted more for public policy background than to support a factual determination, non-record material may be permitted. In one case, the court of appeals denied a motion to strike part of reply brief which included a newspaper article and a federal criminal complaint, as those materials provided background for a public policy argument but with no bearing on the particular statutory analysis.[xi] In another case, respondent sought leave to rebut an amicus brief which presented numerous facts not of record.[xii] The court of appeals denied the motion in the text of its merits decision, stating that the court had not relied upon the extra-record facts, but viewed them to be “obvious” or “common knowledge.”[xiii]

Understandably, joint consent to an appellate motion is not always feasible. But promptness is important to success. If cause arises to file a motion, and sanction is warranted, file the motion promptly. Motions to dismiss an appeal should be filed once a firm basis for dismissal is identified. If, for instance, you perceive that appellant’s notice of appeal was not timely, nothing prevents you from filing the motion before briefing begins. Consider whether any portion of the record, in addition to the judgment or order appealed from, is necessary to the motion.

Motions to strike and motions to dismiss can have serious consequences, not to mention additional costs to clients. Before bringing such a motion, consider whether you can simply address the misstatement or violation in your brief. If you proceed with a motion, any requested sanction for a rule violation should correspond to the severity of the transgression and prejudice caused by the violation. Repeated motions to strike or to dismiss may be viewed to unduly take up the court’s time, particularly when the infraction is minimal. Experience shows that the Wisconsin Court of Appeals rarely will dismiss an appeal as a sanction for a procedural misstep which can be remedied easily.

Wisconsin appellate courts appear to decide motions to strike only if the merits of the case require it. Frequently then, these motions are not entertained until the court gets to a full consideration of the appeal.[xiv] Taking a harder line, Judge Easterbrook of the Seventh Circuit Court of Appeals, recently instituted a new approach toward lawyers who file lengthy motions to strike unsupported assertions in their opponents’ briefs. The judge not only denied the motion but deducted twice the length of the motion to strike (about 1200 words) from the permissible length of the movant’s reply brief.<[xv]

Overall, if your practice routinely includes handling appeals, you will be faced with responding to motions, or will contemplate motions of your own as the need arises. Given the volume of motion practice at the court of appeals and the corresponding delay, plus the fact that motions are typically processed on a first-come, first-served basis, consider whether you can avoid the motion altogether by a bit of foresight, by agreement of counsel, or by making an additional argument in your brief. If a motion is still required to obtain the relief you need, make it short and swift.

[i] This figure does not include petitions for leave to appeal and writs.

[ii] Several of the recommendations herein are taken from a presentation on appellate motion practice given by Court of Appeals Staff Attorney Thomas McGregor, in 2000, as part of a program sponsored by the Milwaukee Bar Association Bench-Bar Court of Appeals Committee, and also from conversations with other staff attorneys. Any opinions expressed herein as to likelihood of success on particular motions are solely those of the author.

[iii] See Wis. Stat. § 809.14(2).

[iv] See Wis. Stat. (Rule) ¶¶809.10(1)(c); 809.82(2)(b).

[v] See Wis. Stat. (Rule) § 809.82(2)(e).

[vi] See State v. Flynn, 190 Wis. 2d 31, 58, 527 N.W.2d 343 (Ct. App. 1994).

[vii] See State v. Quackenbush, 2005 WI App 2, ¶ 16, 278 Wis. 2d 611, 692 N.W.2d 340 (discussing motions under Wis. Stat. § 809.82).

[viii] Wis. Stat. (Rule) § 809.14(3).

[ix] See Wis. Stat. (Rule) §809.14(3)(c).

[x] See, e.g., Richards v. First Union Securities, Inc., 2006 WI 55, ¶36 n.13, 290 Wis. 2d 620, 714 N.W.2d 913 (granting motion to strike portions of brief relating to affidavit not considered by circuit court on motion to dismiss).

[xi] See Curda-Derickson v. Derickson, 2003 WI App 167, ¶8 n.3, 266 Wis. 2d 453, 668 N.W.2d 736.

[xii] Orion Flight Services, Inc. v. Basler Flight Service, 2004 WI App 222, ¶23 and n.5, 277 Wis. 2d 819, 692 N.W.2d 804, aff’d 2006 WI 51.

[xiii] Id.

[xiv] See, e.g., King v. King, 224 Wis. 2d 235, 255 n.16, 590 N.W.2d 480 (Ct. App. 1999).

[xv] Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006).