Category: Uncategorized

Will the Court of Appeals Reconsider my Case?

Posted by Chelsey Bradley - November 5, 2014 - Uncategorized

Scales of JusticeIf you lose your case in the court of appeals, there is a mechanism through which you can ask the court of appeals to reconsider its order, prior to requesting review from the state supreme court. This is a called a motion for reconsideration.

In most cases, a motion for reconsideration is not appropriate. A motion for reconsideration is not an opportunity for a litigant to re argue his case because he is dissatisfied with the ruling from the court of appeals, or feels that the court failed to focus on what he believed to be a critical fact or argument.

Rather, a motion for reconsideration is only appropriate where the Court of Appeals misstated the material facts or applicable law. If this is the case, a motion for reconsideration is a better option than a petition for review with the state supreme court, because the state supreme court typically takes cases alleging an issue of statewide impact, rather than those that allege a factual error in the court of appeals.

If you think a motion for reconsideration is appropriate in your case, it is importnt to act quickly. In Wisconsin, for example, the deadline to file a motion for reconsideration is 20 days following the date of the appellate decision. Wis. Stat. § 809.30. Importantly, Wisconsin statute does not allow for the extension of this deadline.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What Happens if my Appeal is Denied?

Posted by Chelsey Bradley - October 22, 2014 - Uncategorized

If your appeal is denied, your case isn’t necessarily over. In most cases, there are two more avenues to relief following the denial of an appeal:

  • A motion for reconsideration with the court of appeals
  • A petition for review with the state supreme court

A motion for reconsideration asks the appellate court to reconsider its recent decision. This motion is not an avenue for a litigant to delve further into a complicated legal issue, but rather to point out a mistake of fact or law made by the court of appeals that factored into its decision.

A petition for review asks the state supreme court to review the findings of the court of appeals. Unlike the Court of Appeals, the Wisconsin Supreme Court is not required to hear your case.

Whether you’d like to file a motion to reconsider, a petition for review, or both, it is important to check your local statutes for the deadlines and procedures for each. In Wisconsin, for example, a petition for review to the Wisconsin Supreme Court must be filed within 30 days after the appellate decision is reached. This deadline cannot be moved or extended.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Permissive Appeal?

Posted by Chelsey Bradley - October 8, 2014 - Uncategorized

During trial level litigation, the trial court issues various non-final  — i.e., not disposing of the entire case — orders. In most instances, non-final orders cannot be appealed until the trial court disposes of the entire case. When waiting to appeal a non-final judgment or order may be problematic, a party may request that the appellate court consider the non-final judgment in a interlocutory, or permissive appeal.

The court is not required to hear a permissive appeal and, in fact, this type of appeal is highly disfavored. In 2013, for example, the Wisconsin Court of Appeals allowed only 15 of 128 interlocutory appeals to move forward.

Despite this, there are situations in which a permissive appeal would be appropriate. Wisconsin law, for example, indicates that a permissive appeal would be appropriate where it would:

  1. Materially advance the termination of the litigation or clarify further proceedings in the litigation;
  2. Protect the petitioner from substantial or irreparable injury; or
  3. Clarify an issue of general importance in the administration of justice

Wis. Stat. § 808.03(2). Local statutes will determine the procedures and deadlines for requesting a permissive appeal. If granted, a permissive appeal will proceed as though it were a ‘normal’ appeal. Proceedings in the trial court will not be automatically stayed while a permissive appeal is pending, however parties can request such a stay.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

What is a Petiton for Review?

Posted by Chelsey Bradley - September 24, 2014 - Uncategorized

For most litigants who receive an adverse decision in their state trial and appellate courts, the last opportunity for relief is in the supreme court. However, unlike the trial and appellate courts, the supreme court is not required to hear your case. Rather, you must request review by filing a ‘Petition for Review.’

A Petition for Review provides an overview of the facts of the case, and the issues for which the petitioner is requesting supreme court review. After you submit a petition for review, the opposing party may submit a response indicating why review is unnecessary. The petitioner may file a reply to this response, however in most jurisdictions, this is not required.

Local statutes will indicate what types of issues are best suited for supreme court review. Often, these are issues that (1) present a significant question of law, (2) demonstrate a need for a new or changed policy, or (3) would help to develop, clarify, or harmonize the law in a particular area.

Importantly, the deadline for a petition for review begins to run when the final order is entered in the court of appeals. In most jurisdictions, this deadline cannot be extended.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Remittitur?

Posted by Chelsey Bradley - August 27, 2014 - Uncategorized

All cases begin and end at the trial court level. Even where a litigant appeals the trial level outcome to a higher court, the higher court can only review the issues presented to it. For example, if an appellate court reverses the findings of a trial court, the appellate court must send the case back to the trial court so that it can enter an order consistent with the appellate findings. The act of sending a case back to the trial court is known as “remittitur.”

Remittiturs are entered at the conclusion of every case on the appellate and supreme court level. At minimum, a remittitur returns the jurisdiction of the case to the trial level court, and also signifies that the physical file has been transmitted back to the trial court.

If the reviewing court has made a decision inconsistent with the trial court, the remittitur will include instructions for the trial court to enter an order consistent with the appellate court’s decision, retry the case, or take any other action deemed necessary.

If a remittitur has been entered in your case, there is no need to take immediate action. If further proceedings are necessary, the trial court will schedule these proceedings and notify all parties.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

 

The Supreme Court Granted my Petition for Review – Now What?

Posted by Chelsey Bradley - August 13, 2014 - Uncategorized

First of all — if the supreme court has granted your petition for review — congratulations are in order. In most states, fewer than 10 percent of petitions for review are granted. Unlike in the court of appeals, where the court is required to hear your case, the state supreme court gets to choose which cases it will hear – meaning the court wants to hear your case.

Along with notification that your petition for review has been granted, the clerk of the supreme court will include a briefing schedule setting all applicable deadlines. These deadlines are often set by statute. In Wisconsin, for example, the deadlines are as follows:

  • Petitioner’s Brief: Due within 30 days of the order granting the petition for review
  • Respondent’s Brief: Due 20 days following the file date of the petitioner’s brief
  • Petitioner’s Reply Brief: Due 10 days following the file date of the respondent’s brief

When filing these briefs, it is important to follow all rules for format and filing. For example, the clerk of the supreme court will require a specific number of copies of each brief. In Wisconsin, for example, the supreme court requires 22 copies of each brief. Following briefing, the supreme court may request oral arguments. Following oral arguments, the supreme court will likely take several months to issue a decision.

Importantly, parties can only argue  the issues that were set forth in the petition for review. The supreme court may further narrow the issues for review as it deems appropriate. Should the supreme court omit argument on an issue identified in the petition for review, that issue may be remanded to the court of appeals for further review.

To speak with a knowledgeable attorney about your case on the state supreme court level, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Motion to Set Aside Judgment Based on Newly Discovered Evidence?

Posted by Chelsey Bradley - May 28, 2014 - Appeals, Criminal Appeals, Uncategorized

FINGERPRINTSometimes, after everything is said and done in a particular case,  a piece of extremely relevant — yet somehow undiscovered — evidence comes to light. If the newly discovered evidence is persuasive enough, a the losing party may be able to convince the court to grant him a new trial.

In order to successfully request a new trial, the requesting party must demonstrate to the court that:

(1) the evidence was discovered after conviction,
(2) the defendant was not negligent in seeking to discover it,
(3) the evidence is material to an issue in the case, and
(4) the evidence is not merely cumulative.

See, e.g. State v. Vollbrecht, 2012 WI App 90. If the defendant can establish all four of these factors by clear and convincing evidence, the reviewing court will then consider whether “it is reasonably probable that, had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant’s guilt. Id.

Importantly, a Motion to Set Aside a Judgment based on Newly Discovered Evidence under Wis. Stat. § 974.06 may be filed at any time, despite the expiration of other appellate options. A successful motion will put the defendant in the position he was in before trial. That is, while the defendant may be re-tried and acquitted, it is also possible that the defendant may be re-tried, convicted, and sentenced up to the maximum applicable penalty.

To speak with a knowledgeable attorney about newly discovered evidence in your case, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

 

 

Is an IRS Audit Appealable?

Posted by Chelsey Bradley - April 30, 2014 - Uncategorized

Most taxpayers are not thrilled at the prospect of an IRS audit. Audits can often result in negative consequences such as back taxes, interest, penalties, and in the most serious cases, criminal charges. What many taxpayers do not realize is that they do have some recourse when their audit results in unfavorable consequences.

In order to facilitate the many taxpayers who wish to appeal their audits, the IRS has created an Appeals Office to resolve such controversies. Through the IRS Appeals Office, taxpayers can attempt to resolve concerns over their audit without going to court.

If you do not want to go through the IRS Appeals Office, you may go directly to tax court. You will have 90 days from the date that you receive your audit results during which to initiate a claim in tax court.

If you are interested in having a Wisconsin-based appellate attorney assist with your IRS audit appeal, please contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Do I Need a Local Attorney to Handle My Wisconsin Appeal?

Posted by Chelsey Bradley - April 16, 2014 - Appeals, Uncategorized

Among all the factors that go into selecting a Wisconsin appeals lawyer, the most important are experience and dedication. An appeals litigant will gain no advantage by hiring a local attorney who lacks these qualities.

In contrast to the many court appearances necessary at the trial level, almost all of the work for a case on appeal occurs on paper. There are very few, if any, hearings scheduled for an appeal. Should a court event be scheduled, it will take place at the Wisconsin Court of Appeals, which is located in Madison.

The Alderman Law Firm is therefore able to assist clients and other attorneys all across the state of Wisconsin. Our close proximity to the Court of Appeals allows us to attend hearings and complete filings at a reasonable cost to the client, as we are not traveling in from outside Dane County.

If you are interested in having a WIsconsin appeals lawyer assist with your appeal, please contact The Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

How to Appeal a Probation Revocation

Posted by Chelsey Bradley - April 9, 2014 - Appeals, Criminal Appeals, Uncategorized

Individuals who are placed on extended supervision often face confusing rules and procedures that make it difficult to successfully complete their term of probation. If an individual’s probation agent believes that a probationer violated the conditions of his or her probation, the individual’s probation may be revoked. Although a probation revocation may be appealed, the probationer must act quickly in order to preserve his or her right to do so. There are two ways to appeal a probation revocation decision (1) administrative appeal, and (2) judicial review.

Administrative Appeal

This is the more common avenue through which to appeal a revocation decision. This type of appeal asks an administrator to modify the administrative law judge’s decision based on evidence presented at the hearing

The first step in filing an administrative appeal is serving the administrator and other party with a written appeal that includes (1) written arguments, and (2) supporting materials. This must be filed within 10 days from the date of the written decision revoking probation. HA 2.05(8)(a). Once served, the other party has 7 days to respond. HA 2.05(8)(b). After the other party has responded, the administrator will consider the evidence and decide whether to modify, sustain, reverse, or remand the administrative law judge’s decision. The administrator has 21 days within which to render this decision. HA 2.05(9)(b).

Judicial Review

A probationer may also appeal a revocation decision by seeking judicial review of the decision. In this case, the court that originally sentenced the probationer will review the revocation decision.

In order to initiate a judicial review, the probationer must file a writ of certiorari with the sentencing court within 45 days of the written revocation decision. The reviewing court will then review whether there is substantial evidence to support the revocation. If the reviewing court finds substantial evidence to support the decision, it will affirm the revocation, even if the probationer offers evidence that could support a contrary determination. It is worth noting that the standard is not the same as with a criminal trial (proof beyond a reasonable doubt), but much lower (substantial evidence). Further, the evidentiary rules that apply at trial do not apply at probation revocation hearings.

To speak with a knowledgeable attorney about appealing your probation revocation, contact The Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).