Appeal Process

An appeal is the review of a trial court judgment by a higher court, usually referred to as an appellate court.  An appellate court consists of a panel of judges.  It does not hear evidence but makes its decision based on the written transcripts of the oral proceedings and the documents contained in the court file. Wisconsin has a two-tiered appellate system which includes the Court of Appeals and the Supreme Court.  An appeal to the Court of Appeals is an appeal of right, meaning that if you appeal, the Court of Appeals must decide your case.   The Wisconsin Supreme Court, on the other hand, is a discretionary court, which means it gets to pick and choose which cases it will hear.  With few exceptions, the Wisconsin Supreme Court only takes cases that were first decided by the Court of Appeals.  The Supreme Court accepts very few cases.  For most litigants, the Court of Appeals will be the final stop in their appeal.

Procedure – Civil Appeals

An appeal is commenced by filing a notice of appeal with the clerk of the circuit court where the judgment was filed. The notice of appeal must be filed within either 45 days or 90 days after the day the final written judgment was filed depending on whether a notice of entry of judgment was served on the losing party.   Despite this 45/90 day time-frame, the true deadline for starting an appeal is 20 days from the day the judgment was filed, as that is the deadline for filing a post-judgment motion with the trial court.   Wisconsin law generally requires that an issue be raised in a post-judgment motion before it can be raised on appeal.   This is true regardless of whether the issue was raised with the trial court previously, or whether the case was decided by a judge or a jury. A post-judgment motion may consist of a motion for new trial, a motion for reconsideration, a motion on the verdict, or a motion raising post-verdict issues such as jury misconduct. What matters is that the same issues the party intends to raise on appeal also be raised in the post-judgment motion. The theory behind this requirement is that a post-judgment motion gives a trial court the opportunity to correct itself and thus avoid an appeal altogether.  The reality, however, is that post-judgment motions are rarely granted.  Because the post-judgment motion is so critical for the appeal appellate counsel should be involved in the case before the post-judgment motion is filed.

The 45/90 day time period for filing the notice of appeal is tolled while the post-judgment motion is pending.  An untimely notice of appeal will result in a dismissal of the appeal.

Once the notice of appeal is filed, transcripts of the trial court proceedings are ordered from the court reporters.  The court reporters have 60 days to prepare and file the transcripts.   The appealing party is responsible for the cost of preparing transcripts and must also pay the cost of supplying a copy to the  opposing party.  Once the transcripts are prepared and filed, the clerk of courts numbers each documents in the court file and prepares an index called a record compilation. The record is then sent to the Court of Appeals.   Once the record is received, the briefing schedule begins.   The appealing party files the first brief 40 days after the record is received by the Court of Appeals.  The responding party is then given 30 days to file a response brief.   The appealing party then had 15 days to file a reply brief.  Once all the briefs are filed, the Court of Appeals will issue a written decision usually anywhere from four to nine months after the briefs are filed.  See Procedural Outline for Civil Appeals.

Procedure – Criminal Appeals

Criminal appeals follow a different procedure. (See 809.30). The main difference is that the notice of appeal is not due until 60 days after transcripts have been served on appellate counsel.   This allows appellate counsel time to review the record, conduct an investigation, consult with experts, or pursue post-conviction discovery, before he files a post-judgment motion or notice of appeal. Unlike civil appeals, deadlines are not as strictly applied.  The Court of Appeals will routinely extend deadlines upon request even to the point of doing so retroactively.  This should not be viewed as giving license to ignore appellate deadlines, however, as the Court of Appeals will enforce them if too many requests are made or if it believes a defendant is not being diligent in his efforts to comply.

In addition, post-judgment motions are not required if the issue was previously raised and fully preserved in the trial court. (809.30(2)(h)).  The reality, however, is that the vast majority of criminal cases will require a post-judgment evidentiary hearing.   Ineffective assistance of counsel, plea withdrawal, new evidence, or any kind of sentencing challenge are just a few examples.See Procedural Outline for Criminal Appeals

Substantive Issues

Less than ten percent of the cases heard by the Court of Appeals are actually reversed. The key to a successful appeal is knowing what issues are most likely to result in a reversal, and presenting them in as persuasive a manner as possible.   The potential appellate issues in either a civil or criminal appeal are vast, and to understand what they may be requires an intimate knowledge of the interplay between state regulations, state statutes, state and federal constitutional provisions, and most importantly, previously decided appellate cases interpreting these rules in a specific factual context.

The primary advantage to having an experienced appellate attorney handle your appeal is that he knows which issues have the greatest chance of success, and knows how to present them to the appellate court in the most persuasive manner.  Another critical advantage is that he understands the standard of review—a concept foreign to most trial lawyers. The standard of review is, essentially, the amount of deference paid to a decision made by the trial court or a jury.   For some issues, that deference is almost total.  These issues should generally be avoided. For others, there is no deference at all.  These are the best issues to raise.  Most issues falls somewhere along the wide spectrum between these two extremes.    The key is knowing what standard of review will actually be applied and balancing that against how strong the issue is legally and factually.   Appellate lawyers have the experience and analytic skills to make this determination.

A word about ineffective assistance of counsel (IAC) claims in criminal cases.  IAC claims are probably the most commonly raised issue in criminal appeals. The reason for this is that Wisconsin courts have severely limited the “plain error” doctrine and therefore the vast majority of errors at trial (whether by the trial judge, prosecutor or trial counsel) must be raised in the context of IAC.  In essence, an IAC claim is an allegation that trial counsel should have done something he or she didn’t do; or did do something he or she shouldn’t have done. This includes, for example, a failure to investigate, a failure to present evidence, a failure to object, a failure to request a jury instruction, just about anything.  The difficulty in proving IAC claims lies in proving prejudice. In other words, it’s relatively easy to prove trial counsel made a mistake.  The hard part is convincing the appellate court that the lawyer’s mistake had a serious impact on the verdict. Knowing how the appellate court decides this question is critical to success on appeal.

Disclaimer:  This writing is meant for informational purposes only and not intended as legal advice.  For a more comprehensive view of Wisconsin appellate procedure, see Michael S. Heffernan,Appellate Practice and Procedure in Wisconsin (6th Edition 2015).  The book is published by the State Bar of Wisconsin.