Note: The issue is now fixed for records transmitted on or after Dec. 21, 2018. For more information, see the Litigation Blog article, "Update to 'Appellate Filers Beware': More Changes for Electronic Records on Appeal," posted Feb. 7, 2019.
Dec. 5, 2018 -- Most litigation attorneys have had occasion to file an appellate brief in the state courts.
The rules that govern those briefs are generally prescribed in Wis. Stat. chapter 809. One major requirement for any appellate filer is the need to include a statement of facts in the appellate brief with appropriate references to the record.1
Constituting a Record
What constitutes the record is detailed in Wis. Stat. section 809.15. That statutory provision indicates 14 items that must be contained in the record, and provides that the clerk of the circuit court must assemble the record in the order set forth in section 809.15(1)(a), including identifying by number, date of filing, and title of each document a list of the numbered documents that constitute the record.2
Sarah A. Zylstra, U.W. 1998, is a partner with Boardman & Clark LLP, Madison, where she practices in all types of civil litigation in both state and federal court, including filing appellate briefs.
Accordingly, after a notice of appeal is filed, the clerk of the applicable circuit court provides to all parties a list of the items that constitute the record, and certifies it under oath to comply with the statutory mandate of section 809.15. Most of us have seen the list of documents sent out after a notice of appeal is filed.
And, effective July 1, 2016, the Wisconsin Supreme Court amended the Rules of Appellate Procedure to permit the clerks of circuit courts to transmit the record to the court of appeals electronically.3
Unintended Consequences of Electronic Transmission
However, when the Supreme Court amended the rules to allow the record to be transmitted electronically, some unintended consequences subsequently have emerged.
The computer system of the Wisconsin Court of Appeals’ clerk’s office is reordering the record, moving all transcripts to the bottom of the list, and thereby making the record identifications in the clerk of circuit court’s certification incorrect.
Further, the statutes require the clerk of a circuit court to list its certification of the record as the last item in the record.4 However, the court of appeals computer system moves that certification above any transcripts that are filed in the case, thereby affecting the record numbering.
Therefore, any counsel who relies upon the circuit court clerk’s certification of the record for citation purposes should know that such numbers do not correspond to the record numbering at the court of appeals.
How to Access the Listing of the Record
While the e-filing system does not send an electronic notification that the circuit court record has been changed, nor provide a link to the record at the court of appeals, you can access a listing of the record electronically.
To do so, log on to the Wisconsin Court System appellate court eFiling webpage and click on “My Cases.” Under each case listed, you will see three links:
Clicking on “View appeals document index” provides the listing of the appellate record as it stands at the court of appeals.
Conclusion: Citing to the Appellate Record
Given the statutory rules defining the order of the documents that must be certified by the circuit court as the record on appeal, it is unclear whether it is an error to cite the circuit court record instead of the appellate record.
To ensure that appellate judges can find their citations to the record, the wisest course may be to cite the appellate record – since that is the index to which the appellate judges have access.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.
1 See Wis. Stat. § 809.19(1)(d).
2 See Wis. Stat. § 809.15(2) (emphasis added).
3 See Supreme Court Order No. 15-02.
4 Wis. Stat. § 809.15(2) & 1(a)14.