Did You Lose Your Civil Case at Trial? Advising Your Client on the Deadline to Appeal

An article on how trial attorneys should handle circuit court losses in regard to civil appeals, from my most recent article in the Wisconsin Law Journal:

A trial lawyer represents his client through the final judgment – win or lose. When that judgment reflects a loss, he must advise the client on her options for appeal. Even if the trial lawyer does not intend to handle the appeal in house, he must explain the timeline for making the decision on whether to appeal, including the deadline for filing a Notice of Appeal.

Trial lawyers are sometimes reluctant to give clients a deadline for filing a Notice of Appeal because they are reasonably concerned about exposing themselves to liability should they calculate the date incorrectly. However, it is a necessary part of complete representation at the trial level to advise the client just how quickly she must act to find and retain appellate counsel.

Although the Notice of Appeal is a short, unassuming document, failure to timely file it will forever bar your client from pursuing relief from an adverse judgment.

Follow these guidelines to calculate the deadline for filing a Notice of Appeal when advising clients who want to appeal the final judgment of a Wisconsin circuit court in a civil matter.

The general rule

Wisconsin Statute Section 808.04(1) provides the general rule: The Notice to Appeal for a civil matter must be filed within 45 days of a written final judgment or 90 days of a non-written final judgment.

The 45-day deadline is lengthened to 90 days even if there is a written final judgment when the appellant is not given notice of entry of judgment by mail within 21 days. Those 21 days are calculated from entry of the order to when the order is mailed, and no mailbox rule applies. Bruns v. Muniz, 97 Wis. 2d 742, 295 N.W.2d 11 (Ct. App. 1980).

For the purpose of advising clients, unless you are dealing with a bench ruling without a corresponding written order or one of the case types discussed in the next section of this article, it is best practice to simply advise that the client has 45 days from entry of the final judgment to file a Notice of Appeal for a standard civil case.

Exceptions, Exceptions, Exceptions

Most exceptions to the general rule from § 808.04(1) are based on the statutory chapter under which the initial proceeding was filed. The time limit for filing a Notice of Appeal in civil proceedings under the following five code sections, for example, do not follow the general rule, and most of them have a 20-day deadline:

  • Children’s Code [Ch. 48]
  • State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act [Ch. 51]
  • Protective Service System [Ch. 55]
  • Juvenile Justice Code [Ch. 938]
  • Sexually Violent Person Commitments [Ch. 980]

Wis. Stat. § 809.30(2) gives a straightforward 20-day deadline to file a Notice of Appeal from final judgments issued out of cases initiated under statutory Chapters 51, 55, 938, and 980.

The children’s code cases are more complicated, however, as certain types of Chapter 48 cases are subject to different appellate deadlines than others. The rules surrounding appeals of termination of parental rights orders are particularly daunting. To perform your own analysis, start with Wis. Stat. §§ 808.04(1) and 809.30(2).

Other case types with special time limits to appeal are evictions and orders granting adoption. Under Wis. Stat. § 808.04(2), a party has only 15 days from the entry of a final judgment of eviction in order to initiate an appeal. Meanwhile, an appeal of an order granting adoption has a 40-day deadline, per § 808.04(7).

Another exception is based on events outside of the case itself. Under Wis. Stat. § 808.04(6), should a party to the action pass away during the period allowed for appeal, the time to file a Notice of Appeal is the longer of the time permitted by law or 120 days after the party’s death.

Best practices for trial attorneys

Although trial attorneys do not typically handle their own appeals, the impending appellate deadlines make it necessary to at least minimally inform losing clients of appellate options and rights. Following the conclusion of a case at the trial level, a trial attorney should to do the following:

Inform the client of his or her right to appeal

An appeal from the final order of a Wisconsin circuit court is generally a matter of right under Wis. Stat. § 808.03(1). However, a party must preserve this right by (1) filing a timely Notice of Appeal, and (2) paying the filing fee of $195.

Fully inform your client of impending appellate deadlines

It is imperative that trial attorneys inform their clients of the impending deadline to file a Notice of Appeal. This is especially important in a civil appeal, as a failure to meet the deadline will forever bar your client from seeking relief.

Assist your client in locating a qualified Wisconsin appeals lawyer

A trial attorney is far more capable of looking at the bio or resume of an appellate attorney and determining whether she is qualified to handle his client’s appeal. Laypeople, especially those in the emotional throes of having just lost their case, are not well-equipped to select their own appellate attorney. If you can, refer them.

If you do not know of any appeals lawyers that you are willing to recommend, then at least advise your client of what they should be looking for. From an appellate attorney perspective, however, it is far more efficient for trial counsel to reach out, because he will be able to more succinctly explain the important facts and issues at hand and what deadlines are in play.

Discuss the merits of a potential appeal with your client and appellate counsel

After handling a case from start to finish at the trial level, a trial attorney will usually have an idea as to whether there are issues ripe for appeal and, if so, how strong these issues may be. Share these thoughts with both your client and the appellate lawyer who your client consults in evaluating whether to appeal.

While I have attempted to provide a broad overview of how to calculate the deadline to file a Notice of Appeal for a Wisconsin civil judgment, there may be exceptions even beyond those discussed in this article. In order to ensure accurate calculation of the deadline in each individual case, trial attorneys should consult Wis. Stat. § 808.04(1) and other referenced statutes to review whether there are any factors that shrink the presumptive 45-day deadline.