There are many reasons why a person may miss a deadline. Especially when proceeding ‘pro se’ (without an attorney), there are many deadlines and rules that can be difficult to keep track of. It is therefore important to know which deadlines can be extended, and which cannot. In the context of an appeal, one very important deadline is the deadline to file the pleading that informs the courts that you will be appealing an order in the trial level court. In most jurisdictions, this document is referred to as the Notice of Appeal.
Each state has its own statute governing the motion to extend the deadline for filing a notice of appeal. In Wisconsin, for instance, it is Wis. Stat. § 809.82(2)(a). This statute provides that the court may extend this deadline “upon good cause shown.” Importantly, the good cause must be related to the delay in filing the Notice of Appeal, rather than the merits of the case itself. See State v. Evans, 2004 WI 84, 273 Wis.2d 192, 682 N.W.2d 784 (Wis., 2004). There is no deadline for filing a motion under this statue, however the earlier it is filed, the better chance it will be granted.
In Colorado, C.A.R. 4(a) governs when a Notice of Appeal may be filed after the time to do so has expired. This statute provides that such a motion will only be granted upon a showing of “excusable neglect.” Excusable neglect exists where a litigant can show that a reasonably prudent person under the same circumstances would have missed the same deadline. If a party is successful in showing excusable neglect, the time for filing a notice of appeal will be extended by no more than 35 days.
Although it is possible to ask the court to extend the deadline to file a Notice of Appeal after the deadline has passed, this is the exception, not the rule. The court has complete discretion to grant or deny such a motion, and these decisions are rarely overturned on appeal. To avoid these risks, it is best to file your Notice of Appeal on time.
Restraining (or civil protection) orders are temporary orders issued by judges in order to protect a particular person or entity. If you believe that a person has unnecessarily obtained a restraining order against you, you may be able to appeal (or otherwise fight) the order. Importantly, no matter how frivolous you believe a restraining order may be, make absolutely certain you abide by all its terms. Any violation, however slight, may result in arrest, fines, or even jail time.
Because the chances of success on appeal are always statistically low, it may be advisable to exhaust any alternative options before pursuing an appeal. One such option is a motion for reconsideration. A motion for reconsideration asks the trial court to review and amend its findings and conclusions. This is a good option where there is newly discovered evidence, or where the trial court misapplied existing law.
If a motion for reconsideration is inappropriate or unsuccessful, it may be time to file an appeal. In Wisconsin, for example, a party can file an ‘appeal by right’ asking the Wisconsin Court of Appeals to review the final decision granting the restraining order. Wis. Stat. § 808.03. Importantly, most issues must be preserved before they can be appealed. This means that, at the hearings in the trial court, a party or attorney must raise any objections to potential errors. If you plan to file an appeal of a restraining order, be sure to keep track of applicable deadlines. For example, in Colorado, the appealing party must file his notice of appeal within 49 days of the entry of the restraining order. C.A.R. 4(a).
Under normal circumstances, the pathway to a supreme court involves stops at a trial level court, and then an appellate level court. Because supreme court review is discretionary, many cases travel through the trial and appellate level courts, only to never achieve supreme court review.
In a very limited number of cases, however, an action may commence immediately in the supreme court. The ability of a state or federal supreme court to hear a case without the case moving through the trial or appellate level courts is through original jurisdiction.
In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:
(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;
(2) Actions between the United States and a State;
(3) Actions by a State against the citizens of another State
Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.
It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).
The short answer is, it depends. While oral arguments are heard for many cases, oral argument is not mandatory on appeal. In fact, most jurisdictions will not hold oral argument unless it is specifically requested by one of the parties. Even then, the court may decide to not hear oral arguments.
Any party to an appeal can request oral argument. This request must be made in either the appellant’s brief or the response. Local court rules dictate where this request must be made. For example, some jurisdictions require it be on the cover of the requesting party’s brief, while others require that it be within the brief itself.
State statutes provide guidelines for determining whether oral argument is necessary. For example, in Wisconsin, oral argument unnecessary where:
- The appellate arguments:
1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;2. Are on their face without merit and for which no supporting authority is cited or discovered; or3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.
Wis. Stat. § 809.22. Where neither of the above two criteria are met, the Wisconsin Court of Appeals will request oral argument.
If oral argument is requested in your case, the clerk of the court of appeals will notify you that oral argument has been requested, and advise you of how much time you will be given.
On December 1, 2014, managing attorney Kimberly Alderman argued before the Seventh Circuit Court of Appeals in Chicago on behalf of defendant-appellants in Bank of America v. Dawn Martinson. The primary issue in the case was whether Bank of America produced the appropriate documentation to justify a foreclosure. While there is no video of the case, the audio is available here:
A decision on the case has not yet been entered.
This article was authored by our managing attorney Kimberly Alderman and recently published in the Wisconsin Lawyer. To read the full article including endnotes, click here.
In the course of trial-level litigation, a court issues various nonfinal orders. These are orders that do not dispose of all the claims as to all the parties. In most instances, nonfinal orders cannot be appealed until the trial court issues a final order in the case. In some instances, however, waiting to appeal a nonfinal judgment or order can cause great prejudice to a litigant. In these situations, the party may request that the appellate court consider the nonfinal judgment in an interlocutory appeal under Wis. Stat. section 808.03(2). Although the pendency of an interlocutory appeal does not automatically stay the proceedings in the trial court, the petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.
When an Interlocutory Appeal is Appropriate
Wisconsin’s interlocutory appeal statute, Wis. Stat. section 808.03(2), is the only mechanism by which a party can request appellate review of a nonfinal judgment or order (that is, a judgment or order that does not adjudicate all matters in a case as to all the parties). Interlocutory appeals are only permitted at the discretion of the appellate court. The court is not required to hear an interlocutory 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.
This general disfavor is due to a policy against the piecemeal disposal of litigation. Policy dictates that appeals of nonfinal judgments and orders be avoided when possible to protect trial-level litigation from interruptions and delays caused by multiple appeals and to limit each case to a single appeal.
Despite these concerns, Wis. Stat. section 808.03(2) identifies three situations in which a petition for leave to appeal can be granted. The court of appeals must find that hearing the interlocutory appeal would accomplish at least one of the following:
- Materially advance the termination of the litigation or clarify further proceedings in the litigation;
- Protect the petitioner from substantial or irreparable injury; or
- Clarify an issue of general importance in the administration of justice.
In addition to these statutory requirements, and perhaps most important, the court of appeals must believe that there is a substantial likelihood of success on the merits of the underlying appeal. In practice, this might mean that a grant of an interlocutory appeal is more likely in situations in which the issues presented for appeal will be reviewed de novo.
Despite the general disfavor of interlocutory appeals, occasionally the court of appeals will grant permission to appeal mid-litigation. A request for interlocutory appeal stands a better chance when it alleges one of the following:
- The trial court made an error of law that it is likely to continue to rely on or use.
- The state court action is prohibited by federal statute.
- The governing laws pursuant to which a lawsuit is brought are unconstitutional.
- There is a defect in subject-matter jurisdiction.
- There is a defect in personal jurisdiction.
- The waiver of a juvenile out of juvenile court was flawed.
- The defendant is facing a violation of his or her right against double jeopardy.
- A qualified-immunity claim has been wrongfully denied.
As a further illustration, in State v. Webb, the Wisconsin Supreme Court indicated that interlocutory review would be appropriate under facts such as those in State v. Antes, which involved a pretrial challenge to determine whether an unloaded pellet gun is a “dangerous weapon.” The court explained that this was an appropriate issue for interlocutory appeal because it was likely to recur at trial.
Requesting an Interlocutory Appeal
The procedures for requesting an interlocutory appeal are set forth in Wis. Stat. section 809.50. Perhaps most important, a petition must be filed within 14 days after the entry of the nonfinal order. The court of appeals can, on its own motion or for good cause shown, enlarge the time. If a party misses the deadline, he or she should submit a motion to extend the filing period along with the petition for interlocutory appeal.
The petition itself must include a statement of the issues, a statement of the facts, a statement indicating the manner in which immediate review would satisfy at least one of the criteria listed in Wis. Stat. section 808.03(2) (discussed above), and a copy of the judgment or order sought to be reviewed.
If the opposing party wishes to respond to the petition, he or she must file the response within 14 days after being served. Under normal circumstances, the court of appeals will decide a petition for interlocutory appeal within one month after it is filed.
If Interlocutory Appeal is Granted
If granted, an interlocutory appeal will proceed as though it were a “normal” appeal, with the order granting the interlocutory appeal serving as the notice of appeal. Within 11 days after issuance of the order allowing the interlocutory appeal to proceed, the appellant must file a docketing statement, stating the issues to be reviewed. After reviewing these documents, the court of appeals may specify the issues it will review on appeal. As with a normal appeal, the timeline for an interlocutory appeal will vary widely depending on the issues raised on appeal, the court’s current docket load, and the number of judges presiding. For both interlocutory and normal appeals, the average time to conclusion is nine months.
While the interlocutory appeal is pending in the court of appeals, the proceedings in the trial court are not automatically stayed. However, a petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.
After an Interlocutory Appeal is Denied
The decision whether to grant an interlocutory appeal is a discretionary decision made by the court of appeals. Although Wisconsin Supreme Court review of such a decision is possible, it is highly unlikely absent unusual circumstances.
Considerations for Trial Attorneys
Although a client should ultimately direct the course of his or her case, the decision of whether to seek permission for an interlocutory appeal should be made by counsel, after considering the factors discussed above. If you think an interlocutory appeal might be appropriate in a particular case, it is important to consult as soon as possible with a qualified attorney who focuses on appellate matters. An appellate attorney should be well versed in appellate procedure, with the experience necessary to quickly gauge which arguments the court of appeals will find persuasive – and which it will not.
If the appellate attorney determines an interlocutory appeal is not appropriate, remind your client that interlocutory appeals are the exception to the rule, and that the client will have the opportunity to seek an appeal – as a matter of right – at the conclusion of the case at the trial-court level.
On December 9, 2014, managing attorney Kimberly Alderman argued in front of the Wisconsin Supreme Court on behalf of defendant-petitioner in State v. Eddie Lee Anthony. The primary issue was whether Anthony’s refusal to comply with an order to not mention his unrelated 1966 conviction was sufficient disruption to justify the court’s stripping him of the right to testify in his own defense. To see these lively high court arguments and Attorney Alderman in action, click here and then on the little TV: http://www.wiseye.org/
It may be some time before the decision is released, particularly if the Court chooses to wait until the US Supreme Court issues a decision on the petition for certiorari in a related case, State v. Nelson.
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Many courts have instituted an electronic system for briefs and other documents. While these courts still require paper copies of most briefs, they require an additional, electronic copy to be filed through their Web site.
In Wisconsin, for example, attorneys are required to file an electronic copy of briefs in the court of appeals and supreme court, but not in the circuit courts. Unrepresented litigants may electronically file their briefs as well, but are not required to do so. To determine whether your case requires electronic filing, check the local court Web site, or call the clerk of courts.
The electronic filing web page for your local court will provide instructions for how to electronically file a document in your jurisdiction. Typically, this involves uploading a PDF copy of the brief, minus any appendix. Most courts require that the brief be e-filed on the same day that the physical copies are filed.
The Wisconsin Court System offers a wealth of helpful information on its Web site, www. wicourts.gov. One great piece of information is the chart, below, which shows how a case makes its way through the Wisconsin courts.
If 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.