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  • May 03, 2023

    Appellate Practice is an Art: How to Find Resources to Stay Current

    Lawyers who handle appellate cases must stay on top of decisions of the higher courts, especially as they apply to their current cases. Analyzing court decisions is a key part of the practice – as is finding the resources that can help their clients' cases. Here's an example and a list of resources to help you stay up to date.

    Shannon Green

    courthouse steps

    May 3, 2023 – Here's a scenario: Your client's case didn't go as planned – and you will file an appeal. But can the lower court's decision be stayed pending your appeal?

    To figure out your answer, consider the resources that can help.

    The usual test for granting a stay pending appeal is stated in Leggett v. Leggett.1 As outlined in Appellate Practice and Procedure in Wisconsin from State Bar of Wisconsin PINNACLE®, the motion should make:

    • a strong showing that the moving party is likely to succeed on the merits of the appeal;

    • a showing that, unless a stay is granted, the moving party will suffer irreparable injury;

    • a showing that no substantial harm will come to other interested parties; and

    • a showing that a stay will do no harm to the public interest.2

    In the 2022-23 supplement to Appellate Practice and Procedure, you'll see that "These four factors are interrelated: more of one may excuse less of another, but the movant must always demonstrate more than a mere possibility of success on the merits – see Gudenschwager, 191 Wis. 2d at 441."3

    This standard, when applied to gr​ants of a stay of an injunction pending appeal, was clarified in 2022. In Waity v. LeMahieu (2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263), the Wisconsin Supreme Court set forth considerations for evaluating one factor in that standard: whether the moving party is likely to succeed on appeal.

    As explained in the 2022-23 Supplement,

    [P]articularly in cases presenting novel issues, the circuit court should consider not only its own view of the likelihood of success on appeal, but also the standard of review and 'how other reasonable jurists' might have considered the relevant law and whether they might have come to a different conclusion.' See Waity v. LeMahieu, 2022 WI 6, ¶ 53, 400 Wis. 2d 356, 969 N.W.2d 263.

    In his analysis for WisBar Court Review, State Bar Legal Writer Jeff M. Brown writes that in Waity, Chief Justice Annette Ziegler explained, writing for the majority opinion, that "the circuit court also misapplied the four-factor test for analyzing petitioners' request for a stay pending appeal," and that the "circuit court's consideration of the second factor – whether the movant shows that a stay is necessary to avoid irreparable injury – was also flawed."4

    Justice Rebecca Dallet, dissenting, wrote:

    I also disagree with the majority's novel application of the law regarding stays pending appeal. It reduces what has traditionally been a four-factor balancing test to two questions: (1) is the issue being appealed subject to de novo review?; and (2) would the court of appeals or this court likely grant a stay? In doing so, the majority undermines circuit courts' discretion to weigh the equities of each case while providing no guidance for how to implement its unprecedented approach.5

    State Bar Resources to Stay Current in Appellate Practice in Wisconsin

    Both the Waity decision and its dissent demonstrate the ever-evolving standards for appellate review and practice – and highlight the need for practitioners to stay current.

    The State Bar offers these resources to help you stay current:

    What other resources do you use? Let us know.

    More About Appellate Practice and Procedure in Wisconsin

    Appellate Practice and Procedure in Wisconsin from State Bar of Wisconsin PINNACLE® is the standard reference on appellate practice in both the Wisconsin Supreme Court and the Wisconsin Court of Appeals. It is available in print, or through Books Unbound. It is in its ninth edition and is supplemented through 2022-23.

    The book's 28 chapters provide basic information on appellate procedures, as well as sophisticated commentary on expedited appeals, briefing, oral argument, one-judge appeals, and other important topics. See the Table of Contents for the full list of topics contained in ​this key resource for appellate practice.

    Several appendices provide additional resources, including:

    • A "Standards of Appellate Review" outline, prepared by the Hon. Thomas Hruz of the Wisconsin Court of Appeals, District III.

    • Numerous appellate court forms, prepared by the Clerk of the Wisconsin Supreme Court and Court of Appeals.

    • The full text of the Wisconsin Rules of Appellate Procedure.

    Both the print and Books UnBound versions include a complete set of fillable, unannotated forms via download.

    What is Books Unbound?

    Books UnBound® is the exclusive online digital resource from State Bar of Wisconsin PINNACLE® Books. Since 2010, many of the "brown binders" and other treatises that lawyers have relied on for decades have been available in a digital format, which was recently upgraded through a partnership with Lexum, a legal software company.

    "It's faster with a more modern look and feel, includes a more robust search function with Boolean and natural search options, and gives users one-click access to case law through Fastcase and primary law on official websites," said Carol Chapman, publications manager for the State Bar of Wisconsin.

    "It also provides an expanded ability to create and search your notes, including the ability to embed URL links, images, and other helpful infor​mation directly in the notes and to print your notes with both the highlighted book text and your user-added comments.


    1Leggett v. Leggett, 134 Wis. 2d 384, 385, 396 N.W.2d 787 (Ct. App. 1986).

    2 See Chapter 14.2, Authority to Grant Relief Pending Appeal, in Appellate Practice and Procedure, State Bar of Wisconsin PINNACLE.

    3 See Supplement Chapter 14: Relief Pending Appeal – Wis. Stat. §§ 809.12 and 808.07, in Appellate Practice and Procedure, State Bar of Wisconsin PINNACLE.

    4 See the full case analysis by State Bar Legal Writer Jeff M. Brown in "In 4-3 Decision, Wisconsin Supreme Court Upholds Legislative Contracts With Redistricting Lawyers," WisBar Court Review, Feb. 1, 2022.

    5 Waity v. LeMahieu, 2022 WI 6, ¶ 70 (Dallet, J., dissenting).

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