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Pet peeves and preferences

According to Judge Neal P. Nettesheim, the Wisconsin Court of Appeals handles over 3,500 cases annually, and each judge reads about 2,500 pages every month. With a caseload like that, appellate judges’ jobs are much easier when they are reading clear, succinct legal writing. Attorneys have a choice: Their briefs can either stand out for their quality, or the lack thereof. To help counsel with the former, a group of judges from the state Court of Appeals offered a “View from the Appellate Bench” at the recent State Bar of Wisconsin Annual Convention in Madison.

Citation to unpublished opinions

The audience expressed some surprise when Nettesheim, who sits in District II in Waukesha, said that he had come across a few appellate briefs with citations to unpublished Court of Appeals opinions. He is OK with that, as long as the author has flagged that it as an unpublished opinion and doesn’t promote it as binding precedent. His district has never sanctioned an attorney for using a case in that way, Nettesheim noted. But his read on the rule is different from that of Presiding Judge Charles P. Dykman, of District IV in Madison. Dykman said that, in his district, it’s not common for a lawyer to cite to an unpublished opinion for its persuasive value only. The last time it happened was a few years ago, and the court imposed a small sanction upon the offending attorney. His colleague in District IV, Judge Patience Roggensack, added that attorneys who use unpublished Court of Appeals cases as argument to a trial court should be clear that they’re using it persuasively only, and they should give a copy to the other side. The Wisconsin Judicial Council is considering a proposal that would allow practitioners to cite to unpublished Court of Appeals decisions for their persuasive value.Nettesheim offered some insight as to the process of obtaining a recommendation for publication. Typically, the court decides whether it will ask the Publication Committee to publish a case at the first conference on a matter. Then the judges will revisit the question more than once as the case is decided.”It’s not something that’s treated lightly,” he said. “I think that lawyers don’t always appreciate the depth and reflection that goes into the publication process. The same is true regarding the conversion of one-judge appeals to three-judge appeals, because we convert those kinds of cases with a view toward ultimately publishing.”Dykman added that a decision is written with the notion in mind of whether it will be published. “Where we conclude that an issue is not publishable, and all we’re doing is writing for the parties, we may well be far more cursory in that than we would if we were going to publish it,” he observed. The court does take into consideration the parties’ positions on whether a case is publishable, Nettesheim said, but the judges ultimately make their own independent determination. If a party is not happy with that, he or she is free to lobby the Publication Committee for a different conclusion.Dykman noted that most requests to alter a decision from the Publication Committee are not successful. But attorneys who are going to give it a try should emphasize whether a matter is a recurring issue, supporting their argument with cites to the circuit courts if possible. In the alternative and when appropriate, stress that no other opinion resolves the issue.

Summary disposition

Motions for summary disposition are rare, according to the panelists, and should be made with caution. For example, Roggensack said that such a motion would be appropriate if the court did not have subject matter jurisdiction. The court’s staff attorneys screen cases for jurisdiction, but in the unusual event that it slips through, attorneys can and should raise the issue. These motions are appropriate when there is clear authority that is dispositive of an entire case, Dykman said. He acknowledged that it’s hard for lawyers to look at a case without a bias; they always tend to think that the other side is completely wrong. The test should be, when attorneys are thinking objectively, “I have never seen a no-brainer like this one.”

Brief writing tips

“I’m a firm believer that shorter briefs are better briefs, which is one of the reasons that we look askance on motions to elaborate on a brief, either in pages or numbers of words,” Nettesheim opined. He said that he always edits his opinions to make them shorter, and attorneys should do the same in their briefs. When he is about to read a very long brief, he generally thinks to himself with a sigh that he’ll be “wading through a lot of clutter.”He also recommended periodically attending continuing legal education sessions on legal writing. “A lot of us think that, when we got our law degrees, the ability to write well just comes naturally with it, along with wholly separate talents. There are very few of us who have that natural ability. I certainly don’t.”Dykman echoed that point, and reiterated many of the writing basics, including:

  • Spelling. If you can’t spell, give the brief to someone who can, or use the spell-check. If you dictate, look it over carefully. Otherwise, the brief might contain phrases such as “abusive discretion,” “plaintiffs failed to illicit testimony,” or “the defendant was arrested only after he continued to allude the officer.”
  • Grammar, style and usage. If you’re rusty on plurals and possessives, have someone else check the brief for those. Talk in a normal way – which means avoiding a sentence such as, “The condition of his appendix, which was severely inflamed, had became gangrenous, and in a very real sense, was endangering his life.” Instead, say, “The appendix was inflamed, endangering his life.” Use short sentences. Use the active voice. Limit your use of adjectives and adverbs. Dykman commented, “‘Clearly’ tells me there’s trouble on the way.'”
  • Candor with the court. “Do not misstate the law. I’ll put it more strongly: Don’t lie,” he warned. “On occasion – not often – I will send things to the State Bar where, in my view, a lawyer is lying.”
  • Citations. Be careful in using foreign authority to support Wisconsin statutes. Support your arguments with legal authority. Roggensack’s comments went more to content than to form. She recommended against personally attacking the integrity of the lawyers on the other side – which, unfortunately, is something she sees in briefs on a fairly frequent basis. “You waste your time and you lose your sense of scholarly credibility with our court,” she explained.

Lawyers also need to pay attention to the standard of review, which is critical to the court’s decision. She reminded that the intermediate appellate court corrects errors; it doesn’t make law, unlike the Supreme Court. “You need to know what the standard of review is for each and every argument,” Roggensack said. “When you make your argument, you need to ‘sing it in the key’ that the standard of review requires. Don’t tell us that the standard of review is discretionary, and then make an argument that can only prevail if we do a de novo review.” As for Judge Daniel P. Anderson’s preferences, he spoke highly of a practice that has become popular among assistant attorneys general and public defenders: The use of a “summary of the argument” before the discussion itself. The District II judge explained this usually runs anywhere from a paragraph in length, to a page and a half, and it doesn’t contain citations – those are saved for the actual discussion. Anderson likened it to a roadmap, which he finds very helpful to figure out where counsel is going.He additionally pointed out that the statement of facts must contain record citations, and it shouldn’t include argument. When you get to the discussion, avoid string cites. “String citations are really a waste of time. If nothing else, it’s really a waste of your space limitations.” Anderson gave a final tip: Don’t use a large, bold sans serif font. “It’s like you’re yelling at us,” he observed.

Appendices

Dykman said that, as a rule of thumb for appendices,
“If you can’t think of a reason that a judge would need something in the appendix, don’t put it there. Curiosity is not enough.”Cramming the appendix is a tactic to get around space limitations, Anderson said. When a lawyer writes, for example, “For further clarification, see my trial brief in the appendix,” the court knows what you’re up to, and it probably won’t read it. The better strategy, according to Dykman, is to compile the appendix after you have written the brief, when you have a better idea of what’s really necessary. For example, if you have 20 pages of a police officer’s testimony from a suppression motion, skip the officer’s experience and where he was when he got the call. Rather, zero in on statements like, “When I arrived at the home, I observed A, B and C.”Above all, according to Anderson, it’s critical to provide the court with the judge’s rationale, both in your discussion, and by including his or her actual reasoning in the appendix.”One of my pet peeves is attorneys who fail to put the judge’s decision in the appendix – not just the judgment,” he said. “When I’m reading this at home, I don’t have access to the record, and if I don’t have the judge’s decision in the appendix, it makes my job more complicated.”

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