Wisconsin Lawyer: Technology: What You Need to Know: Mandatory Appellate Court eFiling Begins July 1:

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    June
    04
    2021

    Technology: What You Need to Know: Mandatory Appellate Court eFiling Begins July 1

    Attorneys and staff who are familiar with circuit court eFiling will find the appellate eFiling system familiar and easy to use.

    Sheila Reiff & Marcia L. Vandercook

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    Move over, paper! Beginning July 1, 2021, electronic filing is mandatory for attorneys in Wisconsin’s appellate courts – beginning with the court of appeals. As lawyers familiar with electronic filing (eFiling) in the circuit courts will quickly see, the appellate procedures parallel the circuit court experience, providing similar efficiencies and cost savings.

    The Wisconsin Supreme Court approved the petition to create a comprehensive system of electronic filing for the court of appeals and supreme court. The court also amended the appellate rules to incorporate eFiling procedures and to set a date for the first phase of mandatory eFiling.1

    In the court of appeals, eFiling becomes mandatory for attorneys on July 1, 2021. As of that date, attorneys must use the appellate eFiling system to file all new cases, and all new documents in pending cases, in the court of appeals. The supreme court is currently testing a small number of cases by invitation, but no schedule is set for mandatory eFiling in the supreme court.

    Appellate eFiling: Familiar to Circuit Court eFilers

    The appellate eFiling system is built on the same platform as the circuit court eFiling system, so it will look and feel familiar to attorneys and law office staff. If you are already registered for the circuit court eFiling system, your registration and log-in information will give you access to the appellate eFiling system as well.

    Sheila Reiffgov sheila.reiff wicourts Sheila Reiff has served as the Clerk of the Wisconsin Supreme Court and Court of Appeals since 2018. She is charged with implementing the transition to eFiling in the Wisconsin appellate courts. She is the former clerk of circuit court for Walworth County, where she oversaw the county’s conversion to circuit court eFiling.

    Marcia Vandercookgov marcia.vandercook wicourts Marcia Vandercook, Berkeley 1978, is a retired attorney who worked for the Wisconsin Court System on the creation of circuit court eFiling. She returned to the court system to assist with drafting and implementing the appellate eFiling rule.

    After an appeal is filed, attorneys will receive a notice of docketing from the appellate clerk with instructions for opting in on the appeal. Once you have opted in, you can toggle between the two systems to see your cases both at the circuit court level and on appeal. The case-management screens, drop-down menus, and help features will offer the same functions.

    Appellate eFiling expands the eFiling system beyond the current ability to file electronic copies of briefs and appendices. The clerk will keep the official court rec-ord in electronic format only. The eFiling system will accept the filing of all types of documents and provide electronic access to the court docket, filed documents, and the record on appeal. Transcripts and the record on appeal can be accessed through either eFiling system.

    The new appellate eFiling rules are the work of the Appellate eFiling Committee, convened by Sheila Reiff, Clerk of the Wisconsin Supreme Court and Court of Appeals. This committee worked for two years to oversee a pilot project in the court of appeals and to draft the rule changes needed to use eFiling permanently. The committee included the chief justice, judges from the four districts of the court of appeals, practicing attorneys from the public and private sectors, the court system chief information officer, and key court staff.2

    The committee’s recommendations were formally presented to the State Bar of Wisconsin’s Board of Governors and to the Appellate Practice Section and were circulated for comment to several organizations. The supreme court unanimously adopted the resulting petition.

    Appellate eFiling Rule Runs Parallel to the Circuit Court Rule

    The core changes needed to implement eFiling in the appellate courts are found in new Wis. Stat. section 809.801. This section is built on the template of the circuit court rule, section 801.18, and is intended to be parallel in structure, language, and procedure. There are no major differences between the two systems with respect to how eFiling works.3

    Justice Patience D. Roggensack, a strong supporter of the appellate eFiling effort from the beginning, said, “The change to eFiling at the court of appeals and at the supreme court completes a project that we began implementing at the circuit court in 2015. Appellate eFiling will serve members of the public who use the courts and judges and justices who preside in those courts for many years to come.”

    Consistent with the circuit court rule, section 809.801 provides the following:

    • eFiling is available for all documents, not just briefs and appendices.

    • The clerk keeps all documents in electronic format.

    • Electronic filers serve and are served through the eFiling system by receiving a notice of activity each time a new document is filed.

    • Self-represented litigants may eFile voluntarily or use paper copies.

    • Electronic filers may use electronic signatures to sign documents.

    • Attorneys may delegate the authority to submit documents to individuals they supervise.

    • Documents will be considered timely if they are electronically filed by 11:59 p.m. on the day they are due.

    Jean Bousquet, chief information officer, noted that circuit court eFiling has been popular with both filers and courts. “Making eFiling mandatory for the appellate courts is a natural progression built on the successes of mandatory eFiling in the circuit courts. We will provide eFilers with support and training to make this transition, but the systems are almost identical and filers should find it fairly straightforward.”

    Use Electronic Service to Commence Appeals, Petitions for Review

    To maximize electronic filing and service, three documents must be filed with the notice of appeal in the circuit court case: the docketing statement, the statement on transcript, and optional motions under Wis. Stat. section 809.41(1) and (4). Circuit court eFiling users will receive service of these documents through the circuit court eFiling system.19 Parties will receive a notice from the appellate clerk with directions for opting in on the court of appeals case, and all additional documents will be filed directly in the court of appeals.20

    Similar methods will be used for other proceedings for which the parties are already electronically connected through the court below, including petitions for leave to appeal, petitions to bypass, and petitions for review. In these proceedings, the new rules provide that the eFiling parties may be electronically served with the initiating petition in the existing circuit court or court of appeals litigation.21

    Electronic service through the lower court is not feasible for all types of proceedings. For writs, original actions, and judicial disciplinary proceedings, the initiating writ or petition must be served by traditional methods (mail, delivery, email upon agreement) because there may not be a pending proceeding where the parties can receive electronic service.22

    Paper Briefs and Appendices Are No Longer Filed with the Court

    The most notable change for attorneys, and likely a welcome one, is eliminating the requirement to file multiple copies of paper briefs.4 Attorneys will file briefs and appendices in electronic format only and will no longer file any paper copies with the court. Judges and staff will make paper copies as needed.

    Other electronic filing users will be notified when briefs and appendices are filed and will be able to download copies into their own case management systems, so lawyers using the system will no longer serve paper copies on other eFilers.

    The only time attorneys will need to create paper copies is to serve non-eFiling parties (also called paper parties). For paper parties, attorneys will serve one plain-paper copy by traditional methods such as mail. Paper parties will file with the court one paper copy of their own brief and appendix, which the clerk will scan into the court file for access by the eFiling parties.5

    Attorney James Goldschmidt, Quarles & Brady LLP, is a member of the Appellate eFiling Committee and chair-elect of the State Bar’s Appellate Practice Section. He helped locate volunteers for the court of appeals pilot project and found that attorneys were enthusiastic about it. “Having participated on the eFiling Committee and fielded practitioner comments through the Appellate Practice Section, I’m confident that practitioners’ concerns around feasibility and practical implementation were addressed in the process. I am also hopeful that making appellate filing easier and less costly will encourage more attorneys to volunteer for pro bono cases and accept appointments from the State Public Defender and the courts.”

    Greater efficiencies in time and cost are expected for all concerned. Parties will see cost savings from reduced paper handling, printing, and delivery costs. The clerk will see a reduction in paper handling, scanning, delivery, and storage of paper files. Justices, judges, and staff will have improved access to full case files and documents at their fingertips both inside and outside the office. Justices and court of appeals judges may choose to print paper copies; the court is also testing e-readers and digital notebooks.

    Judge Lisa Stark, Court of Appeals District III, increased her use of electronic documents when the court of appeals pilot project began, and she found that much of her work can be done electronically. Having easy access to electronic copies of the briefs, appendices, and record on appeal has been a tremendous advantage. “Everything we need is in one place and easily accessible. We can download the briefs and annotate them, search for words, excerpt portions of various resources, and draft electronically. For judges who prefer to work on paper, it’s also easy to print and work as usual. Many judges find that they do some of each depending on the task at hand.”

    5 Things to Know about Wis. Stat. Chapter 809

    1. Electronic filing will become mandatory for attorneys in the Wisconsin Court of Appeals on July 1, 2021, for all new cases and all new documents. Amendments to the Rules of Appellate Procedure will go into effect on that date.

    2. Appellate eFiling is substantially similar to circuit court eFiling. The technology will look and feel familiar for lawyers practicing in circuit courts.

    3. The notice of appeal and its accompanying documents (docketing statement and statement on transcript) will be served electronically through the circuit court eFiling system.

    4. Printing and service of briefs and appendices will be eliminated except for copies served on self-represented parties. Changes have been made to the format requirements for briefs.

    5. No timetable is set for the supreme court’s transition to mandatory eFiling. In the meantime, parties should continue to file an electronic copy of briefs and appendices in addition to the usual paper copies.

    Related Changes Appear Throughout the Appellate Rules

    In addition to creating the eFiling provisions of Wis. Stat. section 809.801, the Appellate eFiling Committee concluded that it is desirable to integrate electronic filing terminology and procedure throughout the Rules of Appellate Procedure, Wis. Stat. chapter 809. Several procedures have been amended to take full advantage of the efficiencies that electronic records have to offer.6 The changes fall into three basic categories.

    Using the new technology to best advantage.The amended appellate rules seek to use the new technology to best advantage. For example:

    • For appeals and many petitions, you may initiate the next level of review by electronically serving the initiating documents in the lower court. This eliminates the need for paper mail service if the parties are already electronically connected in the lower court.7

    • You no longer need to file duplicate copies of documents in both the circuit court and the court of appeals; documents will be transmitted electronically by the clerks.8

    • Format changes will promote easier reading and navigation of electronic documents, and legibility requirements have been added to improve the quality of scanned documents.9

    • The clerk may review both electronic and paper documents before they are accepted for filing.10 The due date for a responsive brief will run from the date the previous brief is filed rather than the date the clerk accepts the brief.11

    Clarifying existing procedures and incorporating them into the rules. A second category of changes clarifies existing procedures and brings them into the rule. For example:

    • The clerk’s process for docketing a case and the process for filing motions before appeal are explained in the rules. Naming these procedures simplifies the drop-down menus that guide users through the eFiling system.12

    • Motions before appeal are typically procedural matters such as motions for extension of time to pursue postconviction relief or appoint counsel. The first pre-appeal motion is filed as a new action in the court of appeals, and later motions are filed in the same case.13

    • For payment of filing fees, the eFiling system will route the filer to the appellate clerk’s online payment screen, or users may pay the clerk via check. The eFiling fee (currently $20) is not charged for appellate court eFiling.

    Making small improvements suggested by lawyers and other court system users.Although the committee focused on changes related to eFiling, a few other fixes were adopted if the idea was popular and the solution seemed clear. For example:

    • When numbering the record on appeal, clerks will now use the document numbers assigned in the circuit court. Only one document number will appear on each document, which should eliminate confusion. There will be gaps in the record numbering on appeal if not all documents are needed.14

    • The due date of a no-merit report is now 14 days after the notice of appeal is filed. This will allow counsel to provide accurate citations to the record and eliminate the need for some extension motions.15

    • Conflicting language has been resolved to clarify that the respondent in a petition for review may raise issues in its response that were not raised by the petitioner.16

    Formatting Changes for Briefs and Appendices

    The new Rules of Appellate Procedure make a number of changes to the formatting requirements for briefs and appendices, although the overall appearance of the pages will be similar. Be sure to review the new rules before filing your next brief.

    • No colored brief covers or binding. The first page of an electronic brief will be a plain white page with the required cover information.23 Copies served on paper parties should be printed on plain white paper and stapled or clipped.

    • Typography for briefs uses more familiar word processing terminology.The rules now use the language of font size and line spacing familiar from word processing programs. Minimum margins have been set for all briefs.24

    • Simplified pagination.To match the page header applied by the electronic filing system, briefs and appendices will use Arabic numerals throughout, beginning with the cover page as page 1.25

    • Electronic-signing certifications of form and length; combining certifications. Electronic signatures may be used for certifications of form, length, and client counseling for no-merit appeals. Certifications may be combined and signed as a single document.26

    • Technical requirements.Most documents will be submitted in text-searchable PDF format. Leave a blank upper-right corner on the first page of a filed document to accommodate the court electronic filing stamp.27

    • Hyperlinks and bookmarks allowed but not required.External hyperlinks may be used only in accordance with guidance posted by the court. Internal bookmarks may be included to allow the reader to navigate within a document.The use of hyperlinks and bookmarks is not required.28

    Limited Changes Made to Circuit Court eFiling

    A few changes have also been made to the circuit court eFiling rule, Wis. Stat. section 801.18. Wording changes have been made to update the rule and keep the language of the two rules parallel, for ease of use and consistency of interpretation. Some subsections have been deleted because they were only necessary while circuit court eFiling was gradually rolled out to the counties and new case types were being added.17 Amendments to several other statutes deleted outdated requirements for paper copies.18

    No Date Yet for Supreme Court eFiling

    No date has been set to begin mandatory eFiling in the supreme court. The court is currently converting a few select cases from paper to electronic to test the software. As testing nears completion, the court will set a schedule for its transition to mandatory eFiling and will notify lawyers, court staff, and the public.

    The first phase of supreme court cases is expected to include petitions to bypass, petitions for review, motions for reconsideration, original actions, supervisory writs, and judicial disciplinary proceedings. Proceedings projected for implementation at a later date are attorney disciplinary matters under SCR chapter 22, bar admission matters under SCR chapter 40, and petitions to amend court rules.

    Conclusion

    We are confident that these changes will work well for lawyers, the public, and the courts. Attorneys and staff who are familiar with circuit court eFiling will find the appellate eFiling system familiar and easy to use. Incorporating eFiling technology and procedures into the Rules of Appellate Procedure will provide clarity and maximize the utility of electronic documents. We thank Justice Roggensack for her strong support of this project during her tenure as chief justice.

    For more information and training materials, see the court website. For questions, contact the office of the Clerk of the Supreme Court and Court of Appeals at (608) 266-1880 or at gov clerk wicourts wicourts clerk gov.

    Also of Interest

    Learn More About Appellate eFiling

    Stay grounded in a fluid world. Attend the State Bar of Wisconsin’s 2021 Annual Meeting & Conference, June 9-11, held virtually this year, for a seminar on appellate eFiling.

    It’s Appealing: Appellate eFiling From Start to Finish, on June 10, is sponsored by the Appellate Practice Section. After this seminar you will be able to:

    • Successfully navigate the new appellate eFiling website
    • Compare appellate eFiling procedures to those in circuit court
    • Apply the new appellate eFiling rules
    • File briefs and appendices in proper form
    • Comply with the eFiling rule implementation timeline
    • Apply tips and tricks for successful appellate eFiling
    • Access resources for training and support

    Can’t attend the 2021 Annual Meeting & Conference? No worries. It’s Appealing: Appellate eFiling From Start to Finish will be available as webcast replays following the AMC. To learn more about the 2021 Annual Meeting & Conference and to register, visit amc.wisbar.org.

    » Cite this article: 94 Wis. Law. 45-49 (June 2021).

    Endnotes

    1 Members of the Appellate eFiling Committee were then-Chief Justice Patience Roggensack; Court of Appeals Chief Judge Lisa Neubauer; Court of Appeals judges Joseph Donald, Paul Reilly, Lisa Stark, and Brian Blanchard; attorneys James Goldschmidt (Quarles & Brady), Eric Pearson (Foley & Lardner), Winn Collins (Wisconsin Department of Justice), and Katie York (State Public Defender’s Office); supreme court commissioners Nancy Kopp, Julie Rich, and David Runke; Wisconsin Court of Appeals chief staff attorney Jennifer Andrews; chief information officer Jean Bousquet; and Clerk of the Supreme Court and Court of Appeals Sheila Reiff. Marcia Vandercook coordinated drafting of the new appellate rule and provided staff support for the committee.

    2 New Wis. Stat. section 809.801(2)(k) states that “the circuit and appellate court electronic filing and service rules shall be interpreted consistently to the extent practicable.” The goal is to provide a consistent experience for filers in terms of the applicable rules and the technology.

    3Wis. Stat. §§ 809.19(8)(a), 809.32(1)(fm), 809.62(4)(b). Wis. Stat. sections 809.18(12) and (13) and 809.43 were repealed.

    4Wis. Stat. §§ 809.80(5), 809.801(4). Wis. Stat. section 809.80 was amended to rename current methods of filing and service as “traditional methods.”

    5 For a full listing of amendments to Wis. Stat. chapter 809 and an explanation for each change, see Appendix A to Petition 20-07, www.wicourts.gov/scrules/archive/2007.htm.

    6 Wis. Stat. §§ 809.10-.11, 809.104-.107, 809.30, 809.32, 809.50, 809.60, 809.62; see also Wis. Stat. § 809.802(2).

    7 Wis. Stat. §§ 809.10(1), 809.105(2), 809.107(5), 809.11(4), 809.14(5), 809.15(4), 809.32(2).

    8 Wis. Stat. § 809.19.

    9 Wis. Stat. §§ 809.80(5), 809.801(4).

    10 Wis. Stat. § 809.19(3)(a)1., (4)(a)2., (6)(c)2., (d)2. Under the new rule, the clerk calculates the due date of the response based on the filing of the brief, service of the brief, or filing of the record, whichever is latest. For electronic parties, the date of acceptance and date of service will be the same: entry of the new document into the court record will trigger a notice of activity to the electronic parties, thus serving them. For example, if a brief is eFiled at 4 p.m. and accepted and served at 4:45 p.m., filing, acceptance, and service occur on the same date for electronic parties. If a brief is eFiled at 6:30 p.m. and accepted and served at 8:30 a.m. the next day, filing occurs on day 1, and acceptance and service occur on day 2 for electronic parties.

    11 Wis. Stat. § 809.11(3).

    12 Wis. Stat. §809.14(5).

    13 Wis. Stat. §§809.15(2), 809.19(2).

    14 Wis. Stat. § 809.32(2)(a).

    15 Harmonizing Wis. Stat. § 809.62(3m)(b) with Wis. Stat. § 809.62(6).

    16 Wis. Stat. § 801.18(3), (6).

    17 Wis. Stat. §§ 48.29, 767.36, 799.12(3), 801.58, 938.29.

    18 When the Wisconsin attorney general is made a party by operation of section Wis. Stat. section 809.802(1) (former Wis. Stat. section 809.80(2)), the attorney general will be served through the appellate eFiling system.

    19 See Wis. Stat. §§ 809.10, 809.11, 809.30, 809.32.

    20 Wis. Stat. §§ 809.50, 809.60, 809.62.

    21 Wis. Stat. §§ 757.85(5), 809.51, 809.70, 809.71. The new rules do not address electronic filing of proceedings initiated under SCR chapter 22 (lawyer regulation) and SCR chapter 40 (bar admissions); these will continue to be filed traditionally until a later date.

    22 Wis. Stat. §809.19(6 (b), (8)(b)1., (b)4., (9).

    23 Wis. Stat. §§ 809.19(8)(b)3., 809.81(3). For guidance on visual presentation of legal briefs in the era of word processing and screen reading, see Joseph S. Diedrich & Melissa E. Love Koenig, Gain the Upper Hand with Good Typography, Wis. Law., Oct. 2020.

    24 Wis. Stat. §§ 809.19(8)(bm), 809.81(3).

    25 Wis. Stat. §§ 809.19(2)(b), (3)(b), (8g), 809.32(1)(c).

    26 Wis. Stat. § 809.801(8).

    27 Wis. Stat. § 809.801(8)(f), (g).




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