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    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.

    Colleen Ball

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    Wisconsin Lawyer
    Vol. 76, No. 5, May 2003

    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 has.

    Flashback
    Judge Richard S. Brown

    "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,
    District II

    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 years.

    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.

    Judge Chrales P. Dykman

    "[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 their briefs.

    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 today."

    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.

    Judge Richard S. Brown

    "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 typewritten.11

    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 goal.


    Colleen D. BallColleen 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 com cball applaw applaw cball 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 time."

    Sidebars

    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 practitioners.

    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 judges confront.

    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!

    Endnotes

    1 Robert J. Martineau, The Appellate Process in Civil Cases: A Proposed Model, 63 Marq. L. Rev. 164 (1979).

    2 Court Modernization Referendum, Wis. B. Bull., March 1977, at 1.

    3 See Wis. B. Bull., June 1978, at 8.

    4 See Wis. B. Bull., June 1977, at 13; Wis. B. Bull., March 1978, at inside cover.

    5 Daniel W. Hildebrand, 1977 Decisions of the Wisconsin Supreme Court, Wis. B. Bull., March 1978, at 21.

    6 See 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.

    8 Martineau, supra note 1, at 170.

    9 See Wis. B. Bull., April 1978, at 5.

    10 Wis. B. Bull., supra note 2, at 1.

    11 Martineau, 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 certifications.




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