Once you have reached the end of a trial in the circuit court, the case is not necessarily over. A party the circuit court ruled against can appeal to the Wisconsin Court of Appeals. Prosecuting or defending a civil appeal in Wisconsin can be a daunting task. Handling a civil appeal in the Wisconsin Court of Appeals is very different from handling proceedings in the circuit court, and it demands a different approach and a different set of skills.
In Wisconsin, trials are conducted in the circuit court. Here, the parties present evidence and arguments, and the fact-finder—either the court or a jury—will make factual findings. Appeals, on the other hand, involve almost exclusively legal questions, and unlike the circuit court, the parties are not generally allowed to argue the facts. The appellate court does not make factual findings and will not overturn the circuit court’s factual findings “unless the findings are clearly erroneous,” which seldom occurs. See United Food & Commercial Workers Union v. Hormel Foods Corp., 2016 WI 13, ¶ 29, 367 Wis. 2d 131, 876 N.W.2d 99.
Wisconsin has two appellate courts, the Court of Appeals and the Supreme Court. Appeals to the Supreme Court of Wisconsin are their own topic, but similar strategies and skills are involved. The Court of Appeals is Wisconsin’s intermediate appellate court. It is composed of 16 judges from four districts, which are headquartered in Milwaukee, Waukesha, Wausau, and Madison. Compared to the Supreme Court, the Wisconsin Court of Appeals is a relatively high volume because appeals to the Wisconsin Court of Appeals are “as of right,” meaning a party has a right to appeal an adverse decision. See Wis. Stat. § 808.03(1).
Appeals to the Court of Appeals are usually decided by panels of three judges. See Wis. Stat. § 752.31(1). However, if the case falls under one of the categories specified in Wis. Stat. § 752.31(2), then it is decided by one judge.
Overview of Procedure to initiate an appeal and general deadlines
Once there is a final judgment or order to be appealed, a party who wishes to appeal a final order or judgment in a civil case generally has 45 or 90 days to initiate the appeal by filing a notice of appeal. Wis. Stat. § 808.04(1). This deadline is not extended if you file a motion for reconsideration in the circuit court. The notice of appeal is a document filed with the circuit court clerk that identifies the order or judgment being appealed and contains information about the case. Sec. 809.10(1)(2)(b). The party appealing the judgment or order—referred to as the “appellant”—must also send a copy of the notice of appeal to the clerk of the Court of Appeals and pay a filing fee. See Wis. Stat. §§ 809.10 & 809.11. Submitting a notice of appeal within the required time is critical because “[t]he filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.” See Wis. Stat. § 809.10(1)(e).
The appellant must then request a copy of the transcripts (if needed) for each party, and file a statement on transcript with both the clerk of the court of appeals and the clerk of the circuit court that either “designate[s] the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal.” See Sec. 809.11(4).
Once the appellant files the notice of appeal, several things start happening behind the scenes, including the compilation of the circuit court record—referred to as the “Record on Appeal.” The record on appeal is a compilation of the original documents filed in the circuit court, including the transcript if one was requested. See Wis. Stat. 809.15. Once the record has been compiled, each party receives notice that the record is available for inspection (and potential correction). After each party has an opportunity to inspect the record on appeal, the record is filed, which begins the deadlines for briefing—the most important aspect of the appeal.
The appellant has 40 days from the filing of the record on appeal to submit a brief laying out the appellant’s arguments for reversing the circuit court’s order or judgment. The specific requirements for length, content, formatting, and citations for the brief are laid out in Wis. Stat. § 809.19 and are very detailed.
After the appellant submits a brief, the party who is not appealing—referred to as the “respondent”—has 30 days to submit a response brief. See Wis. Stat. § 809.19(3). The appellant is then allowed to submit a reply brief, which is due 15 days after the response brief. Sec. 809.19(4).
There are additional rules for cross-appeals (where both parties appeal aspects of the judgment or order) and where non-parties wish to file an amicus brief. See id.
Submission of the case
Once the briefs have been filed, the case is screened, which determines, among other things, whether the case will be set for oral argument or whether the case will be submitted on the briefs alone. (Wisconsin Court of Appeals Internal Operating Procedures Section VI(1)). Although oral argument is a common feature in the circuit court, it is extremely rare in the court of appeals. In 2019, there were 884 submissions in the court of appeals (all four districts). Of those 884 submissions, a mere 12 cases were orally argued. Thus, the overwhelming majority of cases in the Wisconsin Court of Appeals are decided solely on the brief submitted by the parties. This means that it is critical to submit a well-written, persuasive brief; in all likelihood, this is the only chance you will get to make your case.
The importance of a good appellate attorney (even if you aren’t appealing)
There are numerous ways an experienced appellate advocate can add value to your case. First and foremost, a good appellate attorney will have excellent research and analytical skills as well as experience with the Court of Appeals to give an honest assessment of your case both before and after trial. If you are a potential appellant considering whether to appeal an adverse ruling, an appellate attorney will be able to advise you on the chances of success. On the other hand, the circuit court might have ruled in your favor and you must defend an appeal. Although the majority of circuit court decisions are affirmed, the high rate of affirmance is somewhat misleading. An experienced appellate attorney will be able to give you a more nuanced case assessment than simply telling you that your case is likely to be affirmed. Not all cases are equal. There may be other factors increasing the risk that the favorable ruling you obtained in the circuit court will be overturned on appeal, including the absence of controlling case law or the presence of a significant error by the circuit court. Having a good idea about the strengths and weaknesses of your case will allow you to make informed decisions going forward—whether prosecuting or defending an appeal—including whether to file an appeal or the advisability of pursuing a settlement during the appeal.
Additionally, even if trial is ongoing, sometimes pursuing a permissive appeal, called an interlocutory appeal, could avoid an expensive and unnecessary trial. This is accomplished by filing a petition for leave to appeal the non-final judgment or order with the court of appeals. See Wis. Stat. § 809.50. Attorneys who regularly deal with appeals may be able to spot such issues as they arise in the circuit court and offer insight on whether pursuing an interlocutory appeal is advisable. And even if you decide against pursuing an interlocutory appeal, an appellate attorney can assist in spotting potential issues to appeal later on, and ensure that the circuit court record is properly developed on those issues.
Once an appeal is underway, an attorney with appellate experience who understands the process and strategy can be a difference-maker. A good appellate attorney can easily work within the existing factual framework to craft the best legal argument in your favor. You have limited space in your brief, which is likely the only chance you get to make your case to the Court of Appeals. Therefore, writing a concise brief, which requires a good grasp of the operative legal issues, is essential to making effective arguments on appeal. A good appellate attorney will know how to use this limited space and write to his or her audience, in this case, the Court of Appeals judges, and sometimes the judges’ law clerks. An appellate brief has more eyes on it than your typical filings in circuit court. Therefore, an appellate brief should be carefully drafted, taking this additional scrutiny into account.
An attorney’s task on appeal is to understand the legal landscape and give the court a legal path to reach a conclusion favorable to you based on the facts found in the circuit court. This legal path must then be explained clearly and concisely in the appellate brief. Experienced appellate advocates will understand that it is critical to focus only on the strongest arguments and not waste time and space on issues with a low probability of success. While it can be tempting to raise every conceivable argument in your favor—indeed, many attorneys make this mistake—wasting time on losing arguments (1) can undermine your credibility with the court and (2) risk distracting the court from your stronger arguments.
James M. Sosnoski, J.D., Liberty University Law School 2015, is an associate attorney with Meissner Tierney Fisher & Nichols S.C. where he focuses his practice on business litigation and worked in the Court of Appeals for 3 years. Contact him at (414) 273-1300 or email@example.com.
 There are different procedures for criminal appeals, small claims eviction appeals, and appeals involving the termination of parental rights.
 A party has 45 days if “written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order,” but otherwise generally has 90 days. See Wis. Stat. § 808.04(1). Either party may provide written notice of entry of judgment or order. See Wis. Stat. 806.06.
 Respondent has 30 days from the later of (1) the date of service of appellant’s brief, plus 3 days if service is by mail, (2) the date the Court of Appeals accepts the appellant’s brief for filing, or (3) the date on which the record is filed in the office of the clerk of the Court of Appeals. See Wis. Stat. § 809.19.
 The appellant has 15 days from the later of (1) the date of service of the response brief or (2) the date the Court of Appeals accepts the brief for filing.
 Many Court of Appeals judges involve their law clerks in the decisional process in a variety of ways, including reviewing the briefing, reviewing the record, legal research, and even assisting the judge in drafting opinions.