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    Wisconsin Lawyer
    December 01, 2014

    How to Appeal Mid-litigation Decisions

    Although interlocutory appeals are disfavored because they interupt the course of trial-level litigation, attorneys should be aware of the situations in which a court of appeals is more likely to review a trial court’s nonfinal order or decision.

    Kimberly Alderman

    winter pathIn the course of trial-level litigation, a court issues various nonfinal orders. These are orders that do not dispose of all the claims as to all the parties. In most instances, nonfinal orders cannot be appealed until the trial court issues a final order in the case. In some instances, however, waiting to appeal a nonfinal judgment or order can cause great prejudice to a litigant. In these situations, the party may request that the appellate court consider the nonfinal judgment in an interlocutory appeal under Wis. Stat. section 808.03(2). Although the pendency of an interlocutory appeal does not automatically stay the proceedings in the trial court, the petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.

    When an Interlocutory Appeal is Appropriate

    Wisconsin’s interlocutory appeal statute, Wis. Stat. section 808.03(2), is the only mechanism by which a party can request appellate review of a nonfinal judgment or order (that is, a judgment or order that does not adjudicate all matters in a case as to all the parties). Interlocutory appeals are only permitted at the discretion of the appellate court. The court is not required to hear an interlocutory appeal and, in fact, this type of appeal is highly disfavored.1 In 2013, for example, the Wisconsin Court of Appeals allowed only 15 of 128 interlocutory appeals to move forward.2

    This general disfavor is due to a policy against the piecemeal disposal of litigation.3 Policy dictates that appeals of nonfinal judgments and orders be avoided when possible to protect trial-level litigation from interruptions and delays caused by multiple appeals and to limit each case to a single appeal.4

    Despite these concerns, Wis. Stat. section 808.03(2) identifies three situations in which a petition for leave to appeal can be granted. The court of appeals must find that hearing the interlocutory appeal would accomplish at least one of the following:

    • Materially advance the termination of the litigation or clarify further proceedings in the litigation;
    • Protect the petitioner from substantial or irreparable injury; or
    • Clarify an issue of general importance in the administration of justice.5

    In addition to these statutory requirements, and perhaps most important, the court of appeals must believe that there is a substantial likelihood of success on the merits of the underlying appeal.6 In practice, this might mean that a grant of an interlocutory appeal is more likely in situations in which the issues presented for appeal will be reviewed de novo.

    Despite the general disfavor of interlocutory appeals, occasionally the court of appeals will grant permission to appeal mid-litigation. A request for interlocutory appeal stands a better chance when it alleges one of the following:

    • The trial court made an error of law that it is likely to continue to rely on or use.7
    • The state court action is prohibited by federal statute.8
    • The governing laws pursuant to which a lawsuit is brought are unconstitutional.9
    • There is a defect in subject-matter jurisdiction.10
    • There is a defect in personal jurisdiction.11
    • The waiver of a juvenile out of juvenile court was flawed.12
    • The defendant is facing a violation of his or her right against double jeopardy.13
    • A qualified-immunity claim has been wrongfully denied.14

    As a further illustration, in State v. Webb, the Wisconsin Supreme Court indicated that interlocutory review would be appropriate under facts such as those in State v. Antes, which involved a pretrial challenge to determine whether an unloaded pellet gun is a “dangerous weapon.”15 The court explained that this was an appropriate issue for interlocutory appeal because it was likely to recur at trial.16

    Requesting an Interlocutory Appeal

    The procedures for requesting an interlocutory appeal are set forth in Wis. Stat. section 809.50. Perhaps most important, a petition must be filed within 14 days after the entry of the nonfinal order.17 The court of appeals can, on its own motion or for good cause shown, enlarge the time. If a party misses the deadline, he or she should submit a motion to extend the filing period along with the petition for interlocutory appeal.18

    Kimberly AldermanKimberly Alderman, Howard 2006, operates Alderman Law Firm, Madison, focusing on appeals and dispute resolution.

    The petition itself must include a statement of the issues,19 a statement of the facts,20 a statement indicating the manner in which immediate review would satisfy at least one of the criteria listed in Wis. Stat. section 808.03(2) (discussed above), and a copy of the judgment or order sought to be reviewed.21

    If the opposing party wishes to respond to the petition, he or she must file the response within 14 days after being served.22 Under normal circumstances, the court of appeals will decide a petition for interlocutory appeal within one month after it is filed.

    If Interlocutory Appeal is Granted

    If granted, an interlocutory appeal will proceed as though it were a “normal” appeal, with the order granting the interlocutory appeal serving as the notice of appeal. Within 11 days after issuance of the order allowing the interlocutory appeal to proceed, the appellant must file a docketing statement, stating the issues to be reviewed.23 After reviewing these documents, the court of appeals may specify the issues it will review on appeal.24 As with a normal appeal, the timeline for an interlocutory appeal will vary widely depending on the issues raised on appeal, the court’s current docket load, and the number of judges presiding. 25 For both interlocutory and normal appeals, the average time to conclusion is nine months. 26

    Policy dictates that appeals of nonfinal judgments and orders be avoided when possible to protect trial-level litigation from interruptions and delays caused by multiple appeals and to limit each case to a single appeal.

    While the interlocutory appeal is pending in the court of appeals, the proceedings in the trial court are not automatically stayed. However, a petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.

    After an Interlocutory Appeal is Denied

    The decision whether to grant an interlocutory appeal is a discretionary decision made by the court of appeals.27 Although Wisconsin Supreme Court review of such a decision is possible, it is highly unlikely absent unusual circumstances.

    Considerations for Trial Attorneys

    Although a client should ultimately direct the course of his or her case, the decision of whether to seek permission for an interlocutory appeal should be made by counsel, after considering the factors discussed above. If you think an interlocutory appeal might be appropriate in a particular case, it is important to consult as soon as possible with a qualified attorney who focuses on appellate matters. An appellate attorney should be well versed in appellate procedure, with the experience necessary to quickly gauge which arguments the court of appeals will find persuasive – and which it will not.

    If the appellate attorney determines an interlocutory appeal is not appropriate, remind your client that interlocutory appeals are the exception to the rule, and that the client will have the opportunity to seek an appeal – as a matter of right – at the conclusion of the case at the trial-court level.


    1 See State ex rel. A.E. v. Circuit Court for Green Lake Cnty., 94 Wis. 2d 98, 101, 288 N.W.2d 125 (1980) (“We recognize that interlocutory appeals are undesirable, especially in criminal prosecutions, because they cause delays which are inimical to an effective criminal justice system.”).

    2 Court of Appeals Annual Report (2013) available at

    3 State ex rel. A.E., 94 Wis. 2d at 101 (“The final judgment-final order rule is designed to prohibit piecemeal disposal of litigation and thus plays an important role in the movement of cases through the judicial system.”).

    4 K.W. v. Banas, 191 Wis. 2d 354, 357, 529 N.W.2d 253 (Ct. App. 1995) (noting that the final judgment rule “reduces ‘the burden on the court of appeals by limiting the number ofappeals to one appeal per case and allowing the piecemeal appeals only under special circumstances set forth in [Wis. Stat. section] 808.03(2)”).

    5 Wis. Stat. § 808.03(2).

    6 State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991); see also Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 9.4 (State Bar of Wisconsin PINNACLE, 6th ed. 2014) (“The most important criterion for determining whether an [interlocutory] appeal should be granted is not expressly included among the statutory criteria listed in section 808.03(2), although it is implicit in those criteria. This consideration is whether the petition for leave to appeal shows a substantial likelihood of success on the merits. Only in this context can the general criteria listed in section 808.03(2) be given much significance. Likelihood of success on the merits is the first question the court will consider when responding to a petition for leave to appeal because the court will want to ensure that an appeal will not simply serve to delay and defeat the ends of justice, rather than expedite and clarify the proceedings. A petition for leave to appeal that does not show likely trial court error will generally be denied.”).

    7 See State v. Antes, 74 Wis. 2d 317, 323-36, 246 N.W.2d 671 (1976).

    8 See State ex rel. Cornellier v. Black, 144 Wis. 2d 745, 425 N.W.2d 21 (Ct. App. 1988).

    9 Webb, 160 Wis. 2d at 633 n.8.

    10 Id.

    11 Id.

    12 State ex rel A.E, 94 Wis. 2d at 128.

    13 State v. Jenich, 94 Wis. 2d 74, 288 N.W. 2d 114 (1980).

    14 Arneson v. Jezwinski, 206 Wis. 2d 217, 229, 556 N.W. 2d 721 (1996).

    15 Webb, 160 Wis. 2d at 633 n.8; Antes, 74 Wis. 2d at 323-36.

    16 Webb, 160 Wis. 2d at 633 n.8.

    17 Wis. Stat. § 809.50(1).

    18 Wis. Stat. § 809.82(2)(a).

    19 Wis. Stat. § 809.50(1)(a).

    20 Wis. Stat. § 809.50(1)(b).

    21 Wis. Stat. § 809.50(1)(d).

    22 Wis. Stat. § 809.50(2).

    23 Wis. Stat. § 809.50(3).

    24 Wis. Stat. § 809.50(3).

    25 See Court of Appeals Annual Report, supra note 2.

    26 See id.

    27 In the Interest of J.S.R., 111 Wis. 2d 261, 263, 330 N.W.2d 217 (1983).

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