By David R. Schanker, Clerk, Supreme Court/Court of Appeals

This article is published courtesy of the July 2009 State Bar Appellate Practice Section newsletter.

July 15, 2009 – July 1 of this year brought two important changes for appellate practitioners – the advent of appellate e-filing and the citation of unpublished opinions.

Appellate E-filing. By now, Wisconsin attorneys should be aware that the e-filing of appellate briefs, no-merit reports, and petitions for review is mandatory under the amended Rules of Appellate Procedure. The courts’ website contains a wealth of information about the practicalities of e-filing and the requirements of the new rules. Just go to www.wicourts.gov and click on the button on the right side of the screen labeled “Appellate court eFiling.” There you will find two online presentations – one on registering for the system and one on using the system – as well as links to the new rules and to frequently asked questions. The e-filing system can also be accessed from this page.

Text Search of E-Filed Briefs. E-filed briefs will now be available to the public through the Wisconsin Supreme Court and Court of Appeals Case Access (WSCCA) case search. In the past, users were able to view the opinions in disposed-of cases on WSCCA, but users will now be able to view briefs as they are filed. In addition, the new “Document Search” feature (on the right side of the banner at the top of the screen) allows users to enter a word or phrase and search the entire database of e-filed briefs. The search will retrieve a list of all briefs containing the word or phrase, and each brief can be viewed and searched.

Unpublished Opinions. The citation of unpublished opinions, now permitted under Wis. Stat. § 809.23(3), presents a number of practical challenges for appellate practitioners. Here are a few tips on applying the new rules:

1. Appellate briefs and petitions for review. In the Table of Cases in appellate briefs and petitions for review, unpublished opinions cited to the court should be listed alphabetically under a separate heading (e.g., “Unpublished Opinions” or “Unpublished Cases Cited”).

2. Citation format. When citing an unpublished opinion in a pleading before any court, a party should include the case caption, docket number, unpublished designation, paragraph number, court, and date. For example: Leonard v. Johnson, No. 2008AP3730, unpublished slip op., ¶5 (Wis. Ct. App. July 23, 2009). In the alternative, a party may use an electronic citation indicating where the opinion may be readily accessed online. See The Bluebook, A Uniform System of Citation R. 18.1.1, at 151-52 (Columbia Law Review Ass’n et al. eds., 18^th ed. 2005). Please note: Because the Public Domain Citation (PDC) for an unpublished opinion refers to a table, and not to the individual opinion, PDC numbers should not be used when citing to an unpublished opinion.

3. Copy of opinion for the court. The copy of cited unpublished opinions required under § 809.23(3)(c) should be placed in the appendix to any brief or petition for review or attached to a motion in which the unpublished opinion is cited.

4. Electronic briefs, petitions for review, and appendices. In electronic documents filed with the appellate courts beginning July 1, 2009, pursuant to §§ 809.19(8)(a)4. and 809.62(4)(b), (c), and (d), a copy of any unpublished opinions cited to the court should be included in the electronic appendix. Hyperlinks to unpublished opinions may be included in the electronic brief or petition, but if an electronic version of the appendix is provided, a hard copy of the unpublished opinion must be scanned in as part of the appendix along with the other appendix documents.

5. Availability of unpublished opinions. Access to unpublished opinions is available through the web sites of the Wisconsin courts (www.wicourts.gov) and the State Bar of Wisconsin (www.wisbar.org/fastcase), Westlaw (www.westlaw.com), LexisNexis (www.lexisnexis.com), the State Law Library (http://wilawlibrary.gov), Loislaw (www.loislaw.com). The Wisconsin Law Journal and the State Bar’s free weekly Caselaw Express service also make available summaries of unpublished opinions with links to full text.

Keep in mind that only unpublished opinions issued after July 1, 2009, may be cited.

Please do not hesitate to contact the Clerk’s Office at (608) 266-1880 with any questions regarding the new rules.

This article is published courtesy of the July 2009 State Bar Appellate Practice Section newsletter. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources. 

Related: Overview of Appellate E-Filing - Webcast Replay July 28, 12 p.m. (CT)