This article is published courtesy of the October 2009 State Bar De Novo newsletter, published by the Appellate Practice Section.
By Ellen Henak, Assistant State Public Defender
Most attorneys graduate from law school having written at least one, and often several, briefs. Very few graduate having written petitions for review. Not surprisingly then, too many attempts at writing petitions for review tend to look like briefs in the literary equivalent of evening gowns. They are dressed up arguments concerning errors in need of correction, rather than explanations of what deciding the case can do for the court system at large. How does a lawyer get his or her petition to make the leap from tricked-out brief to persuasive petition for review? One way is to think like a teacher.
The Wisconsin Supreme Court views itself as a teaching court, although it expresses this concept in legal terms. The Court has declared that its primary function “is that of law defining and law development.”1 But the Court cannot just reach out and decide whatever it wishes to decide. Instead, the Court must have an actual case before it. The lawyer’s job in seeking review granted therefore is to convince the Court that: (1) at least one legal issue worthy of the Court’s time exists; (2) the case actually raises that issue; (3) the case raises no procedural or other problems that might prevent the Court from a full discussion of that worthy issue; and (4) the facts in the case aid in resolving the key points of law.
The first hurdle, convincing the Court of the existence of at least one worthy legal issue, is akin to convincing a school of the merits of a particular curriculum. Wisconsin Statutes (Rule) 809.62(1r) provides a list of guidelines that attempt to explain when a legal issue may be appropriate for review. The guidelines, however, do not bind the Court, do not control the discretionary decision whether to grant review, and are broad enough that virtually any case can be said to meet at least one of them to some extent. The merits of thinking of a case as a “the Court’s curriculum” is that it forces attorneys to consider the case’s implications to people other than the parties. An attorney who can think beyond his or her own case and, better, demonstrate the importance of the issues stands a much better chance of success in getting the Court to grant review.
A good writer, like a good teacher, remembers that showing is always more powerful than telling. Saying, “This issue comes up frequently within the court system,” is not very persuasive. Citing other cases that raise similar issues, even if that particular issue was not dispositive in that case or even if the case is from another state, will help demonstrate the frequency with which the issue arises2 Citing newspaper articles whose facts or subject matter suggest more cases will be entering the court system soon may make an issue appear frequent, real, or significant. Citing such articles from across the state can show possible “statewide impact.”3 Citing scholarly articles, especially multiple recent articles, can suggest the significance of an issue or help the lawyer flesh out changing circumstances which require a change in law or policy.4 If an issue is novel, the attorney can explain its specific implications in other factual settings or in other areas of law.5 Including well-constructed hypothetical examples, especially in other areas of law when applicable, and explaining their relationship to the case also strengthens the argument. No rule bars discussing the implications of a procedure rule for contracts cases when the case at bar is a torts case or even a criminal case.
Showing, rather than merely telling, applies in other situations as well. If there is a split in authority on the question, a good petition for review will set forth the cases decided on each side in the court of appeals or even apparent inconsistencies in the Supreme Court’s own opinions.6 Citation to unpublished cases, regardless of date of their publication, is permissible to demonstrate a conflict between districts for purposes of seeking review.7 If the lower courts or courts of other jurisdictions also are split, so much the better. Lawyers can cite them as well.
In addition to the criteria and the reasons, information pertaining to the case below also can signal the importance of a legal issue or suggest the need for clarification. If the court of appeals decision is to be published, that court believed the case involved something more than “the application of well-settled rules of law to a recurring fact situation.”8 That court also believed that the issue was “not decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent.9 A dissent in the court of appeals can indicate that the law is not well-settled.
Where does all this information go? Wis. Stats. (Rule) 809.62(2) requires a petition for review to state the reasons the Court should grant review. Heading the requisite section as “Reasons for Granting Review” rather than as “Statement of Criteria” helps remind the lawyer writing the petition of the need for broad thinking and will not result in rejection of the petition. The rule itself says that the petition must contain “[a] concise statement of the criteria.” The rule also contemplates that a case may not meet any of the criteria and, in such an instance, the requirement is that the petition include “a concise statement of other substantial and compelling reasons for review.” But the rule itself does not bar something broader as long as the writing is tight. “Concise” does not merely mean “very brief.” Instead, it suggests removal of anything superfluous.
But a strong, clear statement of reasons for granting review alone is insufficient to establish that a specific case is well-suited to use to teach lower courts about the law. Just as a teacher must be sure that the book he or she uses actually discusses the material that she wishes to cover with her class, the Wisconsin Supreme Court will want to assure itself that the case being presented actually raises the legal issues suggested in the reasons given for granting review and that no obvious procedural bars exist that would prevent the Court from reaching those legal issues.
A petition for review must contain “[a] statement of the issues the petitioner seeks to have reviewed, the method or manner of raising the issues in the court of appeal and how the court of appeals decided the issues.”10 Too often, practitioners will explain why their case is important but then draft their statements of issues either so broadly or so narrowly that the Court cannot see how review will serve the purpose that the petition claims it will. The attorney drafting the petition for review must ensure that this statement of issues, found at the very beginning of the petition, is fairly drafted to reflect that the case raises the issues urged as key to the broader view of the case. Typically, issues are stated as questions and are approximately one sentence in length. The more general the question looks, the less it appears as though the legal issues in the case are well-enough focused to be good teaching issues for Court’s below. “Was the defendant’s guilty plea invalid because it was not knowing, intelligent, and voluntary?” is insufficient. “Did the failure to understand party-to-a-crime liability render the defendant’s guilty plea unknowing?” is better. But avoid the trap of stuffing those questions too full of facts. An issue that appears to turn too much on a particular set of facts suggests that the issue in your case is not broad enough for review.
Selection of issues to raise in the petition for review also affects the teaching value of the case to the Court. Whenever possible, avoid long lists of issues. Long lists of issues suggest that the case is too complex to be a good example of any particular legal principle to the courts below. Raising an issue that, if resolved in your favor, could prevent the Court from reaching the more “interesting” issue makes a grant of review less likely. Thus, for example, if the state’s key argument for granting review of a court of appeals decision is based upon a need to develop the law concerning when a plain-view search is permissible, the state might increase the chances of a grant of review if it did not raise the issue whether the defendant had standing to challenge that search, especially if the standing issue has no broader implications beyond the particular case.
Lawyers should take care, however, that the requisite argument section of the petition,11 does not undo what has been accomplished in the earlier sections. Sometimes, lifting the argument section from the brief is very tempting, especially because the timeline for filing a petition for review is so short.12 But the argument section should explain the reasons for granting review and give enough flavor of the argument to allow the Court to determine whether the issues really are in need of resolution by the Court and whether the case fairly presents them. Simply lifting the argument from the brief without modification may lead the Court to believe that the petitioner is seeking error-correction. If review is granted, the petitioner will get ample opportunity to explain fully why his or her view of the law is the correct one.
Complex procedural history also raises questions whether the case presented is the proper teaching case for the Court. Skipping the procedural history is not an option as the petition must include the procedural status of the case and the disposition in the court of appeals.13 Nevertheless, a long and involved statement of the case often suggests an underlying procedural problem or that the issues may be unique to your procedural context. Occasionally, the procedure is the issue and the statement of the case will be key. But when it is not, lawyers who can simplify the procedural history down so it merely sets the context for the issues the attorney hopes to argue in the Court, and assures the Court that no pesky jurisdictional or other procedural questions are lurking, strengthen their petitions for review.
Teachers, like the Wisconsin Supreme Court, want to know that any examples they give are as easy to understand as possible. No teacher attempting to teach adding is going to present a story problem in which Billy not only is given apples but also eats them. Similarly, the Court is more likely to grant review in a case involving largely undisputed facts so that the Court can focus on the legal issues. Making the statement of facts lengthy and convoluted hurts the likelihood of review because it suggests that the case is highly fact-specific. If possible, adopt the facts as the court of appeals saw them. If the facts appear undisputed, the chances of a grant of review increases. The rules require only that the statement include any facts “not included in the opinion of the court of appeals relevant to the issues presented.”14
Thinking like a teacher, as much as thinking like a lawyer, will help practitioners move beyond the narrow constraints of the case before them and improve their chances of getting petitions for review granted. The Wisconsin Supreme Court grants less than ten percent of the petitions for review that come before it. The lawyer’s goal is to convince the Court that the case at bar is a good vehicle for the Court to use to teach something about the law that would not otherwise be clear or to establish a new policy. Only then will the petition be granted and the client be given a full opportunity to explain to the Court why his or her view of the law is correct.
This article is published courtesy of the October 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.
Cook v. Cook, 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997).
2See, e.g., Wis. Stats. (Rule) 809.62(1r)(c)(3), in which part of the criterion is that the question of law is likely to recur.
3See, e.g., id. 809.62(1r)(c)(2).
4See, e.g., id. 809.62(1r)(e).
5See, e.g., id. 809.62(1r)(c)(2).
6See id. 809.62(1r)(d).
7State v. Higginbotham, 162 Wis.2d 978, 996-997, 471 N.W.2d 24 (1991).
8Wis. Stats. (Rule) 809.23(1)(b).
9Id.
10Id. 809.62(2)(a).
11Id. 809.62(2)(e). The argument must be arranged in the order of the statement of issues presented.
12A petition for review must be filed so that it is received in the clerk’s office within thirty days of issuance of the court of appeals decision, unless a motion for reconsideration has been timely filed in the court of appeals, in which case the time runs from the denial of the motion or the issuance of an amended decision. Wis. Stats. §§ 808.10; 809.62(1m). This deadline is not extendable because the Court loses jurisdiction after the thirty days. St. John’s Home v. Continental Cas. Co., 150 Wis.2d 37, 43, 441 N.W.2d 219 (1989).
13Id. 809.62(2)(a).
14Id. 809.62(2)(d).
