Traps in Making Claims Against Governments

Calls for Court of Appeals Innovations

Three survey statements on appellate procedures and decisions drew high levels of agreement among respondents. First, 64 percent felt the rules of appellate procedure for Wisconsin cases are too complex and time-consuming - still a substantial majority, but down from 70 percent in 1999. This year's average scores for judges and lawyers tied at 4.7. "The rules are complex; I won't tell you otherwise," Nettesheim says. "They can be confusing, even, at times, to appellate judges." He notes that some rules have been reworked recently to make them more comprehensible.

While Nettesheim concedes that procedures might be further simplified, he suggests that the sentiments expressed in the survey stem from the fact that many lawyers don't practice appellate law regularly. "When you bump up against things that are foreign to you," he says, "you tend to see them as complex and daunting. I dare say if you put the same question to regular appellate practitioners, you might find a decidedly different result."

What's more, daunting as some procedural rules may seem, they do serve a purpose, Nettesheim contends. Rules assure that when a case reaches the appeals court, everything is in order, the record has been properly compiled, and the court has jurisdiction over the case. That prevents technical or procedural questions from popping up later, when they might distract judges from their paramount task of formulating an opinion.

New to this year's survey was a statement that read: "All opinions of the court of appeals should be published and able to be cited as precedent." Fifty-nine percent of respondents agreed. Much stronger agreement emerged for another new survey statement addressing appellate decisions: "A party should be allowed to cite an unpublished court of appeals opinion for the persuasive value if a copy of the decision has been provided to the opposing party." The latter statement evoked 72 percent agreement, with lawyers favoring it more than judges (average scores of 5.1 and 4.6).

As for the first statement, publishing all court of appeals decisions would be of questionable value, as Nettesheim sees it - a view he suspects most of his appellate colleagues would share. "I say that for the simple reason that some decisions issued by the court of appeals say nothing new," he explains. "They simply rely on well-established law. So publishing every decision would be largely a waste of time."

Instead, the appellate courts have a three-tiered system for sifting out cases that merit publication. First, when a three-judge panel rules on a case, it also decides if the decision should be published. Then, once the decision is drafted and before it's released, those judges revisit their publishing decision. Finally, a publication committee made up of one court of appeals judge from each of the state's four appellate districts reads all authored appellate opinions issued statewide each month and again reviews the decision to publish or not.

Even with this multilevel scrutiny, cases can fall through the cracks, Nettesheim concedes. Plus, people may disagree about the significance of a case. He doubts, however, that the remedy is to publish all decisions. Consider that lawyers and judges already feel buried as they try to keep up with information. "If you would add to that pack of material the scores and scores of unpublished cases that come out each month from the court of appeals," Nettesheim says, "I suspect a lot of people would change their minds in a hurry" about wanting all appellate decisions to be published.

Turning to the second survey statement on appellate decisions, Nettesheim strongly agrees with the nearly three-fourths of survey respondents who want to be able to cite an unpublished court of appeals opinion. Attorneys benefit by being able to use the persuasive logic of unpublished opinions, even though they're not binding, in arguing other cases. From a judge's standpoint, "If I'm working on a case," Nettesheim says, "and a lawyer tenders to me a helpful, well-reasoned appellate decision on the same issue, I would like to have the benefit of that court's thinking. To me that just makes eminent sense."

Incivility Takes a Toll