Vol. 76, No. 5, May
The Wisconsin Court of Appeals:
The More Things Change...Reflecting on 25 Years
The introduction of an intermediate appellate
court in 1978 dramatically restructured Wisconsin's court system. Read
how in this article that commemorates the Wisconsin Court of Appeals'
25th anniversary in 2003.
by Colleen D. Ball
An increase in the number of appeals is causing substantial backlogs
in the appellate courts.1 Lawyers and
litigants seek faster disposition of cases in the appeal process.2 The State Bar's periodical promotes seminars on
new appellate rules that lawyers must know in order to avoid missing a
deadline or following an incorrect procedure.3 Specialty groups offer to do legal research and
write appellate briefs for small firms handling big cases.4 Dan Hildebrand reports summaries of significant
WisconsinSupreme Court decisions.5 And
Judges Richard Brown and Charles Dykman issue decisions from the
District II and District IV Courts of Appeal.6
Déjà vu. The facts above were lifted entirely from articles
and advertisements appearing in 1977 and 1978 issues of the
Wisconsin Bar Bulletin and the Marquette Law Review.
In April 1977, Wisconsin voters adopted a constitutional amendment,
which directed the Wisconsin Legislature to establish a court of
appeals. With headlines proclaiming "Appellate Practice in Wisconsin:
Major Changes Coming" the new court began operating on Aug. 1,
1978.7 A little rummaging through articles
from that time could leave lawyers today scratching their heads,
wondering if all that much has really changed. Many players in
Wisconsin's legal history over the past 25 years assure us that it
"The certain delay and formality of the appellate
process gave the losing party tremendous leverage - enough to prompt the
winner at trial to consider settling simply to avoid an appeal to the
Wisconsin Supreme Court."
- Judge Richard S. Brown,
Prior to 1978, Wisconsin had only one appellate court - the supreme
court, and its jurisdiction was mandatory, not discretionary. A litigant
could appeal a broad range of orders and judgments prescribed by
statute, including even interlocutory orders denying motions for summary
judgment. Not surprisingly, this created a logjam in the appellate
review process. By 1977 the Wisconsin Supreme Court was swamped,
terminating 681 cases that year, an average of 98 cases per justice. Yet
a load of 70 cases per justice was considered excessive.8 The time required for the Wisconsin Supreme Court
to resolve a case grew relentlessly - stretching to as long as two
David Walther, an appellate practitioner from that era, recallsa
child custody appeal he handled then. "The Wisconsin Supreme Court was
so far behind that when it was ready to decide the appeal, the children
had already been in the custody of foster parents for two years. The
court concluded that, after so much time, it would be harmful to change
custody. Basically, the delay caused by the supreme court's backlog
rendered the appeal moot," Walther said.
Delay was just one impediment to appellate review. Cost was another.
Appellate work was time-consuming and expensive. Even pagination of the
record - an event attorneys are rarely conscious of today - added to the
expense. Walther recalls that when filing an appeal, attorneys had to
meet in person with the trial court clerk, go through the court record,
and number each page by hand. In addition, there was no Westlaw or
Lexis. Twenty-five years ago, West's key number system was a time-saving
innovation. Ads featured an attorney boasting that he saved money
because the key number system allowed him to "go from one case in any
law book to all cases on point."9 Still, all
this research was done by hand and required a substantial library of
books. Jim Shellow, a criminal defense attorney then (and now),
remembers the very first form of electronic research. "Rand and Western
Union had a database that attorneys accessed through a teletyping
machine," he chuckled.
"[C]ourt of appeals judges made the standard of
review the cornerstone of their decisions in order to alert the bar as
to how various kinds of issues would be decided."
- Judge Charles P. Dykman, District IV
Preparation of appellate briefs, however, was no laughing matter.
Lawyers did not have word processors. They could not cut and paste text
electronically or print drafts with just the touch of a button. They
dictated their briefs, and their secretaries typed them up on carbon
paper. The lawyers then edited and reorganized text, and their
secretaries typed it all over again, usually several times before the
final copy was ready. Lawyers also had to summarize the transcripts
relevant to the appeal and include those summaries in the appendix to
Then came the fun part. The briefs had to be typeset or sent to a
printer in camera-ready form. Issues of the Wisconsin Bar
Bulletin from that era contain ads from businesses like
Hammersmith-Breithaupt Printing Company of Milwaukee or the Legal Briefs
Company of Middleton (which promised "no extra charge for brief
covers"). David Walther recalls a three-day turn-around time. No
last-minute corrections (or perish the thought - writing) on the actual
filing date back then. Shellow agrees that "the cost of reproducing
appellate briefs was far more expensive back then" but, in his opinion,
"they were also far more elegant than briefs produced in-house
What did all this mean for practitioners? According to Richard Brown,
one of the original judges elected to the court of appeals, "lawyers
took the threat 'I'll take you all the way to the supreme court' very,
very seriously. The certain delay and formality of the appellate process
gave the losing party tremendous leverage - enough to prompt the winner
at trial to consider settling simply to avoid an appeal to the Wisconsin
Supreme Court." If a case did proceed beyond the trial court, small firm
or out-of-state lawyers sometimes hired experienced appellate attorneys
from Madison and Milwaukee for counsel on hyper-technical procedural
rules and for assistance with research and writing. Walther, the very
first law clerk hired by the Wisconsin Supreme Court, recalls that upon
entering private practice he often worked as a ghostwriter for trial
lawyers who faced the intimidating prospect of an appeal.
"The court is put off by briefs that are poorly
written, over-written, repetitive, or off the point. Lawyers who can
avoid these pitfalls have a better chance of making a complicated case
understandable to judges whose reading time is likely measured in
half-hours rather than hours or days."
- Chief Judge William F. Eich,
District IV, retired
Enter the Court of Appeals
With Chapter 187 of the Laws of 1977, the Wisconsin Legislature
created a four-district court of appeals and adopted new rules of
appellate procedure. The Legislature hoped to make the appellate courts
more efficient and more accessible to the public, to give litigants the
right to at least one inexpensive review of a trial court's decision,
and to allow the supreme court time to concentrate on constitutional,
precedent-setting cases.10 Toward these
ends, the new chapter 808, among other things, permitted an appeal of
right only from a final judgment or order, cut the time for filing an
appeal in half, shifted the burden of compiling and paginating the
record from the appellant to the trial court, eliminated the full
appendix and narrative of testimony in favor of a short appendix of the
most relevant documents, and allowed briefs to be printed or
It was, however, one thing to pronounce new rules and establish an
intermediate appellate court and quite another to make the system
function. "You have to remember," said Judge Dykman, "while many of the
people initially elected to the court of appeals had been trial judges,
none had been appellate judges before." Judges Dykman and Brown credit
John Decker, the first chief judge of the court of appeals, with getting
them off on the right foot. "He set the internal policies and the
procedures for the new court," Judge Dykman said. "And he worked very
hard to foster collegiality among all the judges initially elected to
the court of appeals. All 12 of us met together each month and we really
felt an 'all for one and one for all' bond," Judge Brown said.
Dykman and Brown also recall a number of significant developments in
the opinion-writing process during their 25 years on the bench. One
involved the use of per curiam opinions. In the beginning, the court of
appeals had a manageable load. The court began with a few hundred cases
transferred from the supreme court and ultimately terminated 1,760 cases
in its first full year of operation. Thereafter, the number of appeals
climbed quickly. "We realized that we couldn't write every opinion
ourselves," explained Judge Brown, "and so we started using per curiam
decisions. In Districts II, III, and IV, the judges decide the appeal
and provide the rationale for the decision. Then one judge hovers over a
staff attorney, who drafts the per curiam opinion. In District I, the
judges often write their own per curiam decisions."
The new court of appeals also thrust the standard of review into the
limelight. Around 1980, the Wisconsin Supreme Court started to review
court of appeals decisions. There were heated debates about such issues
as whether a trial court decision to admit or exclude evidence should be
subject to de novo or discretionary review. "From that point forward,
court of appeals judges made the standard of review the cornerstone of
their decisions in order to alert the bar as to how various kinds of
issues would be decided," Judge Dykman said.
Not just the content, but also the style of opinion-writing has
changed over the court's 25-year existence. Judges Brown and Dykman
remember several professors of English who toured the United States and
Canada in the early 1980s and taught judicial opinion-writing. "The
professors recommended that judges state the issues for review and the
resolution up front so that the first paragraph became a self-test for
the rest of the opinion," explained Judge Brown. Only the information
necessary to support the first paragraph was essential to the opinion;
the rest could be redacted. This methodology served to shorten appellate
opinions and no doubt gratified Chief Judge Decker, who often lectured
the novice appellate judges (in a grandfatherly sort of way) on how to
write appellate opinions. His motto - "keep them short!" Heeding this
advice, some of the judges later established a traveling trophy
emblazoned with the caption Harrigan v. Gilchrist,12 a 334-page Wisconsin Supreme Court opinion. Each
year, the award went to the judge who wrote the longest opinion. Usually
the ignominy was enough to cow the recipient into writing shorter
opinions. (Judge Brown was pleased to note, however, that his colleague
Neal Nettesheim actually won the award two years in a row!)
Appellate Practice Today
Comparing appellate practice then and now, what seems to stand out
more than the rule changes, more than the advent of computerized legal
research and word processing, is the volume of cases handled by the
courts. In 1977, the last full year that the supreme court served as
Wisconsin's sole appellate court, it terminated 681 cases. Twenty-five
years later, in 2002, the court of appeals terminated 3,486 cases, and
the supreme court terminated 1,268 cases.13
In other words, Wisconsin's appellate courts now process more than 4,000
more appeals and petitions today than they did in 1977. If the court of
appeals was designed in part to make appellate review more accessible to
the public, the naked statistics suggest that it has achieved this
Colleen D. Ball, U.W. 1991, formerly a
shareholder with and chair of the appellate group at Reinhart Boerner
Van Deuren S.C., recently opened Appellate Counsel S.C. She is
chair-elect of the State Bar Appellate Practice Section and can be
reached at email@example.com.
The high volume of appeals processed today has had consequences
reminiscent of the appellate world 25 years ago. Like the supreme court
justices then, court of appeals judges today are inundated with
litigation. William Eich, chief judge of the Wisconsin Court of Appeals
from 1989 to 1998, said that "judges on the court of appeals read 20 or
more sets of briefs each month (12 months a year) and write nearly 100
opinions each year." Jim Shellow worries that this pace forces "the
court of appeals to issue too many unpublished opinions that are not
thought through as carefully as published opinions and precludes oral
arguments, which the court of appeals needs in order to consider the
textured nuances in the issues for review."
The high volume of appeals also means that appellate judges depend
more than ever on the well-crafted brief to help them process their
heavy caseloads. Judge Eich notes that the court is put off by "briefs
that are poorly written, over-written, repetitive, or off the point.
Lawyers who can avoid these pitfalls have a better chance of making a
complicated case understandable to judges whose reading time is likely
measured in half-hours rather than hours or days," he said. The
Department of Justice and the State Public Defender have had appellate
practitioners for decades. Judges Dykman and Brown, who have spent 25
years reviewing briefs produced by these two offices, say they "are
particularly well done because those lawyers do this work all the
Perhaps that is why, behind appellate pioneers like Walther (now
practicing in New Mexico), Shellow (still arguing to the Wisconsin
Supreme Court), and Hildebrand (spending 40 percent of his time on
appeals), a new generation of lawyers and consultants strives to
establish niche appellate practices. Twenty-five years ago, clients or
trial lawyers may have turned to appellate practitioners because appeals
were expensive and procedurally complex. Today, the swell of litigation
- particularly appeals - and the discretionary nature of the Wisconsin
Supreme Court's jurisdiction sustain private appellate
In fact, the proliferation of appeals has enabled attorneys to
establish subspecialties in appellate work. Attorney Robert Henak of
Milwaukee appears to be living proof of this phenomenon. He has handled
about 200 criminal appeals and sustains an exclusively criminal
appellate practice with referrals from existing clients, "jailhouse
lawyers," and busy trial lawyers. Attorney Susan Tyndall at CMT Legal
Group in Waukesha has developed a similar practice in civil and
commercial appeals. She receives referrals from harried trial lawyers
who do not enjoy doing the research and writing required for an appeal.
Anne Berleman Kearney of Appellate Consulting Group sees opportunity in
the fact that the Wisconsin Supreme Court is today a court of
discretionary jurisdiction. "The upsurge in interest in petitions for
review and certiorari and in amicus briefs lends itself to
'specialization' in these areas," she said. Meanwhile, straddling the
generations of appellate practitioners are retired appellate judges
William Eich and Gordon Myse, who have taken advantage of the abundance
of appeals to reinvent themselves as appellate consultants. Their advice
is most often sought on complex appeals, cases in which, they know (from
personal experience), it is particularly important to present sharply
focused issues and facts, given the crushing caseload that appellate
The Same or Different?
The French have a saying: "The more things change, the more they
remain the same." The introduction of an intermediate appellate court in
1978 dramatically restructured Wisconsin's court system, radically
altered rules of appellate procedure, shaped the content and style of
appellate opinion-writing, and indeed made the appellate courts more
accessible to the public. Nevertheless, 25 years later, it takes about
two years for an appeal to make it from the trial court through the
supreme court (if accepted for review). Appellate judges write, on
average, close to 100 decisions per year. Trial lawyers complain that it
takes too long to get an appellate decision. The State Bar of Wisconsin
alerts lawyers that new rules of appellate procedure became effective in
January 2003. Appellate practitioners assist lawyers too busy or
uncomfortable with appeals. Dan Hildebrand writes supreme court case
summaries for the Wisconsin Lawyer. And ... Judges Brown and
Dykman are still issuing decisions from the District II and District IV
Courts of Appeal!
1 Robert J.
Martineau, The Appellate Process in Civil Cases: A Proposed
Model, 63 Marq. L. Rev. 164 (1979).
Modernization Referendum, Wis. B. Bull., March 1977, at 1.
Wis. B. Bull., June 1978, at 8.
Wis. B. Bull., June 1977, at 13; Wis. B. Bull., March 1978, at inside
5 Daniel W.
Hildebrand, 1977 Decisions of the Wisconsin Supreme Court, Wis.
B. Bull., March 1978, at 21.
Wis. B. Bull., June 1978, at 10-11.
7 Robert J.
Martineau, Appellate Practice in Wisconsin: Major Changes
Coming, Wis. B. Bull., March 1978, at 11.
supra note 1, at 170.
Wis. B. Bull., April 1978, at 5.
10 Wis. B.
Bull., supra note 2, at 1.
supra note 7, at 12.
12 121 Wis. 127,
99 N.W. 909 (1904).
13 The supreme
court's 1,268 terminations for 2002 included 110 opinions, 78 orders,
1,017 petitions for review, 25 petitions for bypass, and 38