Wis. Stat. § 809.19

Current through Acts 2021-2022, ch. 91
Section 809.19 - Rule (Briefs and appendix)
(1) BRIEF OF APPELLANT. The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:
(a)Number. A table of contents with page references of the various portions of the brief, including headings of each section of the argument, and a table of cases arranged alphabetically, statutes and other authorities cited with reference to the pages of the brief on which they are cited.
(b) A statement of the issues presented for review and how the trial court decided them.
(c) A statement with reasons as to whether oral argument is necessary and a statement as to whether the opinion should be published and, if so, the reasons therefor.
(d) A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.
(e) An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and .
(f) A short conclusion stating the precise relief sought.
(g) Reference to an individual by one or more initials or other appropriate pseudonym or designation rather than by his or her full name when the record is required by law to be confidential or as required under s. 809.86. In an appeal from a domestic abuse protective order or harassment injunction in which "petitioner" has been substituted for an individual's name in the caption, reference to that individual shall be made only as "petitioner".
(h) The signature of the attorney who files the brief; or, if the party who files the brief is not represented by an attorney, the signature of that party. If the brief was prepared with the drafting assistance of an attorney under s. 802.05(2m) , the brief must contain a statement that "This document was prepared with the assistance of a lawyer."
(i) Reference to the parties by name, rather than by party designation, throughout the argument section, unless "petitioner" must be substituted for the party's name under par. (g).

Comment, 2021

Sub. (1) (g) addresses cases in which an individual seeks a restraining order or harassment injunction as protection against domestic abuse or violence. 18 U.S.C. 2265 (d) prohibits making public on the Internet any information that would reveal the identity or location of the party seeking protection. In Wisconsin, parties should designate the party seeking protection solely as "petitioner" in the case caption and the briefs. Adding this requirement to the rule is consistent with current practice and federal requirements. It is an exception to par. (i), which otherwise requires reference to the parties by name and not by party designation. A similar change is made to s. 809.81 (9) regarding the caption.

(2) APPENDIX.
(a)Contents. The appellant's brief shall include a short appendix containing, at a minimum, the findings or opinion of the circuit court, limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court's reasoning regarding those issues, and a copy of any unpublished opinion cited under s. 809.23(3) (a) or (b). If the appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix shall also contain the findings of fact and conclusions of law, if any, and final decision of the administrative agency. The appendix shall include a table of contents. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using one or more initials or other appropriate pseudonym or designation instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
(ae) Form. The appendix shall be filed as a single document separate from the brief. Each document shall be imaged at a resolution sufficient to ensure legibility.
(am) Confidentiality. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using one or more initials or other appropriate pseudonym or designation instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
(b)Certification. An appellant's counsel shall append to the appendix a signed certification that the appendix meets the content requirements of par. (a) in the following form:

I hereby certify that filed with this brief, either as a separate document or as a part of this brief, is an appendix that complies with s. 809.19(2) (a) and that contains, at a minimum:

(1) a table of contents; (2) the findings or opinion of the circuit court; (3) a copy of any unpublished opinion cited under s. 809.23(3) (a) or (b); and (4) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court's reasoning regarding those issues.

I further certify that if this appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix contains the findings of fact and conclusions of law, if any, and final decision of the administrative agency.

I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using one or more initials or other appropriate pseudonym or designation instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

Signed: ....

Signature

Comment, 2021

Since late 2018, the circuit court case management software has been assigning a document number to each item in the circuit court record as it is filed. Sub. (2) (a) provides that the same number will be used in the record index for the appeal. This will make it easier for parties to refer to documents and will prevent confusion from stamping a document with two different numbers.

Comment, 2021

Sub. (2) (ae) requires the appendix to be filed as a single document. In the event of a very large appendix that cannot be electronically filed as a single document due to the size limitations of the system, s. 809.801 (8) directs the user to contact the clerk of court for assistance.

(3) RESPONDENT'S BRIEF.
(a)
1. The respondent shall file a brief within the later of any of the following:
a. Thirty days after the date of service of the appellant's brief, and 3 additional days under s. 801.15(5) (a) if service is accomplished by mail.
b. Thirty days after the date on which the appellant's brief is filed.
c. Thirty days after the date on which the record is filed in the office of the clerk.
2. The brief must conform with sub. (1), except that the statement of issues and the statement of the case may be excluded.
3. Within the time limits for filing a respondent's brief, a party who has been designated as a respondent may file a statement with the court that it will not be filing a brief because its interests are not affected by the issues raised in the appellant's brief or because its interests are adequately represented in another respondent's brief.

Comment, 2021

Sub. (3) (a) provides that the events used for calculation of the time for a response brief are filing of the brief, service of the brief, and filing of the record. When the clerk accepts a filed document, the clerk's entry of the new document into the court record will trigger a notice of activity to the electronic parties, thereby serving them. Thus, for electronic parties the filing and service of the brief will often be the same day. For briefs submitted after the business hours of the clerk's office, the clerk will enter the document into the court record the next business day, so the filing date will be different than the date of electronic service. The calculation of time for parties served by paper remains as provided in s. 809.8 (4) (b) and 801.14 (2).

(b) The respondent may file with the respondent's brief a supplemental appendix as a separate document. If the record is required by law to be confidential, the supplemental appendix must comply with the confidentiality requirements under sub. (2) (am). Any supplemental appendix shall include a table of contents, that conforms with sub. (2) (a) and a copy of any unpublished opinion cited unders. 809.23(3) (a) or (b). Each document to be included in the appendix shall be imaged at a resolution sufficient to ensure legibility.
(4) REPLY BRIEF.
(a) The appellant shall file a reply brief, or a statement that a reply brief will not be filed, within the later of:
1. Fifteen days after the date of service of the respondent's brief, and 3 additional days under s. 801.15(5) (a) if service is accomplished by mail; or
2. Fifteen days after the date on which the respondent's brief is filed.
(b) The reply brief under par. (a) shall comply with sub. (1) (e) and (f). If an unpublished opinion is cited under s. 809.23(3) (a) or (b), a copy of the opinion shall be provided in an appendix to the reply brief.
(5) CONSOLIDATED, JOINT, AND MULTIPLE PARTY APPEALS.
(a) Each appellant in consolidated appeals or a joint appeal and each co-appellant may file a separate brief or a joint brief with another appellant or co-appellant. Appellants and co-appellants represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single appellant.
(b) In appeals involving more than one respondent, including consolidated cases, each respondent may file a separate brief or a joint brief with another respondent. Respondents represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single respondent.
(c) When multiple appellants' briefs have been filed, only a single respondent's brief is allowed by each respondent or by respondents filing a joint brief. When multiple respondents' briefs have been filed, only a single reply brief is allowed by an appellant or co-appellant or by appellants and co-appellants who filed a joint brief.
(d) If separate briefs are filed by multiple appellants or co-appellants, the time for filing and serving the respondent's brief shall not commence until all briefs on behalf of all appellants and co-appellants have been filed. If separate briefs are filed by multiple respondents, the time for filing and serving the reply brief shall not commence until all briefs on behalf of all respondents have been filed.
(6) CROSS-APPEAL. Briefing in a cross-appeal shall be as follows:
(a) An appellant-cross-respondent shall file a brief titled "Appellant's Brief" within the time specified by, and in compliance with, the requirements of subs. (1) and (2).
(b)
1. A respondent-cross-appellant shall file a brief titled "Combined Brief of Respondent and Cross-Appellant" within the later of any of the following:
a. Thirty days after the date of service of the appellant-cross-respondent's brief, and 3 additional days under s. 801.15(5) (a) if service is accomplished by mail.
b. Thirty days after the date on which the appellant-cross-respondent's brief for filing.
c. Thirty days after the date on which the record is filed in the office of the clerk.
2. The respondent portion of the combined brief shall comply with the requirements of this section for a respondent's brief, including the length limitation for such a brief set forth in sub. (8) (c) 1. The cross-appellant portion of the combined brief shall comply with the requirements of subs. (1) and (2) for an appellant's main brief, including the length limitation for such a brief set forth in sub. (8) (c) 1., except that the requirements of sub. (1) (c) and (d) may be omitted, the cross-appellant portion of the combined brief shall be preceded by a white cover page titled "Cross-Appellant's Brief", and a signature shall be required only at the conclusion of the cross-appellant portion of the combined brief.
(c)
1. An appellant-cross-respondent shall file a brief titled "Combined Brief of Appellant and Cross-Respondent" within the later of:
a. Thirty days after the date of service of the respondent-cross-appellant's brief, and 3 additional days under s. 801.15(5) (a) if service is accomplished by mail; or
b. Thirty days after the date on which the court accepts the respondent-cross-appellant's brief for filing.
2. The appellant portion of the combined brief shall comply with the requirements of sub. (4) for a reply brief, including the length limitation for such a brief set forth in sub. (8) (c) 2. The cross-respondent portion of the combined brief shall comply with the requirements of sub. (3) for a respondent's brief, including the length limitation for such a brief set forth in sub. (8) (c) 1., except that the requirement of sub. (1) (c) may be omitted, the cross-respondent portion of the combined brief shall be preceded by a white cover page titled "Cross-Respondent's Brief", and a signature shall be required only at the conclusion of the cross-respondent portion of the combined brief.
(d) A respondent-cross-appellant shall file either a reply brief titled "Reply Brief of Cross-Appellant" in the form required by sub. (4) for reply briefs, or a statement that a reply brief will not be filed, within the later of:
1. Fifteen days after the date of service of the appellant-cross-respondent's brief, and 3 additional days under s. 801.15(5) (a) if service is accomplished by mail; or
2. Fifteen days after the date on which the appellant-cross-respondent's brief is filed.
(e) Each part of a combined brief shall comply with the form and length certification requirements of sub. (8g).
(f) A respondent-cross-appellant must comply with the same appendix rules as an appellant under subs. (2) (a) and (am) and (8g),, except that a respondent-cross-appellant shall not be required to include materials that are contained in the appellant's appendix.
(g) Subsection (5) applies to appeals involving multiple appellants-cross respondents or respondents-cross appellants.
(6m) GUARDIAN AD LITEM BRIEF. If the guardian ad litem chooses to participate in an appeal and takes the position of an appellant, the guardian ad litem's brief shall be filed within 40 days after the filing in the court of the record on appeal. If the guardian ad litem chooses to participate in an appeal and takes the position of a respondent, the guardian ad litem's brief shall be filed within 30 days after service of the appellant's brief. In an appeal related to the termination of parental rights, a guardian ad litem shall follow the filing procedures set forth under s. 809.107(6) (d). If an unpublished opinion is cited under s. 809.23(3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief. If the guardian ad litem chooses not to participate in an appeal of an action or proceeding, the guardian ad litem shall file with the court a statement of reasons for not participating within 20 days after the filing of the appellant's brief. The time for filing and serving the brief due after the guardian ad litem's brief shall not commence until all briefs of the parties in the position taken by the guardian ad litem have been filed.
(7) NONPARTY BRIEFS.
(a) A person not a party may by motion request permission to file a brief. The motion shall identify the interest of the person and state why a brief filed by that person is desirable.
(b) If the brief will support or oppose a petition under s. 809.62 or 809.70, the brief shall accompany the motion and shall be filed within the time permitted for the opposing party to file a response to the petition. If an unpublished opinion is cited under s. 809.23(3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief.
(c) Except as provided in par. (b), the motion shall be filed not later than 14 days after the respondent's brief is filed, and the brief shall be filed within the time specified by the court. If an unpublished opinion is cited under s. 809.23(3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief.
(d) A nonparty brief shall comply with sub. (1) (e) and (f).
(8) NUMBER, FORM, PAGINATION, AND LENGTH OF BRIEFS AND APPENDICES.
(a)Number.
1. For electronic filing users, each brief or appendix shall be filed and served using the electronic filing system as provided in s. 809.801 (6) (a). The filing party shall serve one copy of the brief and appendix on each paper party by traditional methods.
2. A paper party shall file, serve, and receive paper documents by traditional methods as provided in s. 809.80. A paper party shall file one copy of each brief or appendix with the court and serve one copy on every other paper party by traditional methods.
3. Except as provided in s. 809.43, a person who is found indigent under s. 814.29(1) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party. A prisoner who has been granted leave to proceed without prepayment of fees under s. 814.29(1m) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party.
4. In addition to the copies required in subds. 1., 2., and 3., all parties represented by counsel shall file one electronic copy of each brief as provided in s. 809.19(12) and may file one electronic copy of each appendix as provided in s. 809.19(13).
(b)Form. A brief or appendix must conform to the following specifications:
1. Created by a process that produces a clear, black image on a white background. Cover pages shall be white. Carbon copies may not be filed.
2. Formatted to fit 8.5 by 11 inch paper.
3.
a. The use of word processors or typewriters is encouraged but not required.
b. If a monospaced font is used: 10 characters per inch; double-spaced.
c. If a proportional serif font is used: minimum 13 point body text, 11 point block for quotes and footnotes, Italics may be used only for citations, headings, emphasis and foreign words; bold may be used only for citations, headings, and emphasis. Line spacing in body text must be between 1.15 and 1.5 lines or an equivalent line spacing; additional space between paragraphs is permitted but not required. Block quotes and footnotes must be single-spaced.
d. If handwriting is used: the text must be legibly printed and not include cursive writing, except the person's signature.
e. Margins must be a minimum of a 1.25-inch margin on the right and left sides and a minimum of a 1-inch margin on the top and bottom.
4. The pages of paper documents must be secured together at the top left corner.
(bm) Pagination. A brief or appendix must have page numbers centered in the bottom margin using Arabic numerals with sequential numbering starting at "1" on the cover.
(c)Length.
1. For a brief filed by a party under sub. (1), (5), or (6) (a), (b), or (c), or by a guardian ad litem under sub. (6m), those portions of the brief referred to in sub. (1) (d), (e) and (f) shall not exceed 50 pages if a monospaced font or handwriting is used, or 11,000 words if a proportional serif font is used.
2. For a reply brief filed under sub. (4) or (6) (d), those portions referred to in sub. (1) (e) and (f) shall not exceed 13 pages if a monospaced font or handwriting is used, or 3,000 words if a proportional serif font is used.
3. For a brief filed under sub. (7), those portions of the brief referred to in sub. (1) (e) and (f) shall not exceed 13 pages if a monospaced font or handwriting is used, or 3,000 words if a proportional serif font is used.
(d) repealed
(8g) CERTIFICATIONS.
(a) Briefs; certification regarding form and length.
1. Counsel shall submit with the brief a signed certification that the brief meets the form and length requirements of sub. (8) (b), (bm), and (c) in the following form:

I hereby certify that this brief conforms to the rules contained in s. 809.19(8) (b) and (c) for a brief and appendix produced with a [monospaced] [proportional serif] font. The length of this brief is .... [pages] [words].

Signed: ....

Signature

2. For purposes of the certification and length requirements of this subsection, counsel may use the word count produced by a commercial word processor available to the general public.

Comment, 2021

Sub. (8) (a) provides that electronic filing users no longer need to file multiple paper copies of briefs with the court. A notice of activity to users is generated when the clerk enters the brief into the court record, allowing the other electronic parties to access the brief electronically. Paper parties file one paper copy of each brief and appendix with the court, which the clerk will scan and make part of the record.

Comment, 2021

Sub. (8) (b) makes a number of changes to form, while maintaining the overall appearance of the documents. Standards for handwritten briefs have been added, along with a statement of the court's authority to review briefs for legibility. Margins are required so that scanned documents will include all the words.

Comment, 2021

Sub. (8) (bm) requires pagination using Arabic numerals beginning on the first page of each document. This will match the page number to the page header applied by the eFiling system, avoiding the confusion of having two different page numbers.

Comment, 2021

Sub. (8) (c) is reorganized to clarify allowable page counts and word limits for the various kinds of briefs. Page limits specific to handwritten briefs have been added, based on the average number of words per page found in handwritten briefs currently on file.

Comment, 2021

Sub. (8g) addresses certification of the brief, appendix, and supplemental appendix in a single section. The language of the certifications for brief and appendix is largely unchanged. Certifications may be combined into a single document for signature. Electronic filing users may certify using their electronic signatures.

(9) BRIEF COVERS. Each brief or appendix shall have a white front cover. The front cover shall contain the name of the court, the caption and number of the case, the court and judge appealed from, the title of the document, and the name and address of counsel filing the document. Except as provided in s. 809.81(8) and (9) , the caption shall include the full name of each party in the circuit court and shall designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. In the supreme court, "petitioner" shall be added to the party designation of the petitioner, and the respondent's party designation shall remain the same as in the court of appeals.
(10) CITATION OF SUPPLEMENTAL AUTHORITIES. If pertinent authorities decided after briefing come to the attention of a party or a nonparty under sub. (7) or a guardian ad litem under sub. (6m) after the party's or nonparty's or guardian ad litem's brief has been filed, or after oral argument but before decision, the party, nonparty, or guardian ad litem may promptly advise the clerk of the court, by letter, and serve a copy of that letter on all parties to the appeal. If the new authority is a decision of the Wisconsin court of appeals, the authority is considered decided for purposes of this subsection on the date of an order for publication issued under s. 809.23(2) . The letter shall do the following:
(a) Set forth the citations for the authority.
(b) Identify the page of the brief or the point that was argued orally to which the citations pertain.
(c) For each authority that is cited, briefly discuss the proposition that the authority supports.
(11) RESPONSE TO SUPPLEMENTAL AUTHORITIES. A response to the letter under sub. (10) may be filed within 11 days after service of that letter. The response shall briefly discuss the reason why each authority does not support the stated proposition, unless the proposition is not disputed.
(12) repealed
(13) repealed

Wis. Stat. § 809.19

Amended by Acts 2018 ch, 365,s 82, eff. 4/18/2018.
Amended by Sup. Ct. Order 20-07 (2021), eff. 7/1/2021.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1979 c. 110; Sup. Ct. Order, 104 Wis. 2d xi (1980); 1981 c. 390 s. 252; Sup. Ct. Order, 111 Wis. 2d xiii (1983); Sup. Ct. Order, 112 Wis. 2d xv (1983); Sup. Ct. Order, 115 Wis. 2d xv (1983); Sup. Ct. Order, 123 Wis. 2d xx (1985); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 161 Wis. 2d xiii (1981); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 167 Wis. 2d xiii (1992); Sup. Ct. Order, 171 Wis. 2d xiii, xvii, xxxvii (1992); Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv; 1993 a. 486; 1995 a. 224; Sup. Ct. Order No. 97-01, 208 Wis. 2d xxiii (1997); 1997 a. 35; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 04-11, 2005 WI 149, 283 Wis. 2d xix; Sup. Ct. Order No. 06-02, 2006 WI 118, 291 Wis. 2d xiii; Sup. Ct. Order No. 07-03, 2007 WI 129, 303 Wis. 2d xxvii; Sup. Ct. Order No. 08-15 and 08-18, 2009 WI 4, 311 Wis. 2d xxix; 2009 a. 180; Sup. Ct. Order No. 10-01 and 10-02, 2010 WI 42, 323 Wis. 2d xxiii.