President’s Message: The Most Powerful Court in the State Is...

WDC Journal Edition: Spring 2014
By: Arthur P. Simpson, President, Wisconsin Defense Counsel

What is the most powerful court in the state? If you were trying to complete high school civics, the obvious answer is the state supreme court. However, the real world answer is the trial court. Appellate rules have been skewed to the point where it is difficult, if not impossible, to obtain appellate review of most trial court rulings.

Appellate review faces the same tension as video replay in sporting events. On one hand, the general goal is to “get it right.” On the other hand, the cost of “getting it right” is “taking forever.”1 The current system limits appellate review so as to make it either unavailable or impractical in many situations. The loser is most typically the defendant.

A significant limit on appellate review is the very limited availability of review of a non-final order.2The defense faces a nearly impossible burden and basically no review of many critical pre-trial rulings. Section 808.03 of the Wisconsin Statutes provides:

(2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;

(b) Protect the petitioner from substantial or irreparable injury; or

(c) Clarify an issue of general importance in the administration of justice.

There is no reference to “getting it right.”3 The standards in section 808.03 are really no standards at all. The impact of this falls upon the defendant. To provide an example, suppose the defendant has an argument that the plaintiff was a trespasser. Suppose there is an argument that the statute of repose bars the claim or the recreational activity statute bars the claim. Suppose the claim is so far- fetched that no reasonable person would think jury and court time should be consumed litigating the claim.

As an initial step, the defense files a motion for summary judgment. The defense is then confronted with the rubric that “summary judgment is a drastic remedy.” When the motion is denied, the defendant is left with two choices. Choice one is to petition for leave to appeal under Wis. Stat. § 808.03. Chances of review being granted are inordinately small. Choice two is to proceed to a trial with the incumbent costs. The eventual result will likely be a success for the defense based upon the strength of the underlying motion. However, the costs of litigation and the uncertainty of an outcome before a fact finder create added incentive to reward the marginal claimant with a settlement. This undercuts the goal of the justice system, which is to properly compensate those with claims that have merit and not to compensate those with claims that lack merit. Keep in mind, a dispositive motion granted creates an appealable final order immediately. Only moving parties denied relief—usually defendants— are faced with non-final orders for which appellate review is practically non-existent.

Wisconsin Stat. § 808.03(2) abandons the dual goals of (a) getting it right and (b) getting it right when it matters. In virtually every case where a non-final order petition is argued, the moving party argues that a “correct” decision on the pending motion will terminate the litigation. The moving party further argues that the petitioner will avoid the expenses of a trial and that “summary judgment is a drastic remedy” is not the only rule of motion practice. The court’s response, given the way the issue is positioned, is to indicate these are the same complaints raised in every case. This almost invariably results in the work-load-reducing outcome of denial of the petition for leave to appeal the non-final order. One seeking review of a non- final order faces a stacked deck.

One solution would be to allow appeal of a non- final order where there is a showing of a “reasonable likelihood of success on the merits,” possibly similar to the standard for obtaining injunctive relief.4Meaningful appellate relief when there is a bona fide issue for appeal seems reasonable. This standard would avoid concerns about every case being appealed for purposes of delay.

Another solution goes beyond rewording the statute. Appellate resources are limited. While the extent of the limit is subject to discussion, no one questions this fact. It is the obligation of the bar to advocate for further funding for the judiciary. In the world of government funding, more judges and more staff would be a trivial cost economically. For the judicial system to remain credible, it must move closer to the objectives of “getting it right” and “getting it right now.” Appellate review currently is too little too late, rendering it severely limited. These adjustments would bring the system more in line with providing timely and appropriate appellate review.

1 One would think “getting it right” would be more important to the judicial system.
2 Another deterrent is the “abuse of discretion” standard of review applied to many evidentiary and trial practice rulings. This deferential standard of review means little to no review of these rulings. This standard and the limited review available for non-final orders also effectively eliminates review of most discovery rulings.
3 “Getting it right” is obviously an elusive concept. At a minimum, more consistency is a reasonable goal. Indistinguishable rulings from trial court to trial court would be lessened with more review of non-final orders.
4 Before the mid-1970’s, a denial of summary judgment could be appealed routinely. This was changed because it slowed down the litigation process and resulted in “extra work” for the appellate system.