Wednesday, July 27, 2016

Your Honor, Your Honor? - Why Practicing Lawyers Should Be Considered For Appellate Judgeships

Governor Walker has filled the vacancy on the Wisconsin Supreme Court created by Justice David Prosser's retirement by appointing Attorney Daniel Kelly to the state high court.  I write this post not to defend this appointment in particular, but to defend the selection of an practicing lawyer with "no judicial experience" to an appellate judgeship.

First of all, where is it written that only sitting trial and appellate judges possess the qualifications necessary to serve as appellate judges?  Are sitting judges the only ones who interpret the law and apply it to different factual situations on a daily basis?  NO!  Practicing lawyers consider the facts presented by their potential clients and apply the law in determining whether or not the potential client has a case and who they have a case against.  Practicing lawyers consider the law in deciding what information to seek in discovery.  Practicing lawyers consider the facts obtained through discovery and apply the applicable law in deciding whether to move for summary judgment or for a limitation on the evidence presented at trial.  Practicing lawyers prepare their clients and witnesses for trial with the goal of eliciting testimony that will satisfy the legal elements of a claim or defense.  Practicing lawyers consider the evidence presented at trial and the applicable law in deciding whether or not to move to set aside the verdict or for a new trial.  Finally, practicing lawyers consider the evidence in the trial court record and the ruling that formed the basis for the trial court's final order or judgment along with the applicable law in deciding whether or not the client has a viable appeal.  This is what I do.  This is what hundreds (if not thousands) of practicing lawyers in Wisconsin do on a daily basis.  What we do is very similar to what trial court judges are supposed to do when they exercise their discretion: consider the facts and law and arrive at a logical conclusion through reasoning.  See, e.g., Burkes v. Hales, 165 Wis. 2d 585, 478 N.W.2d 37 (Ct. App. 1991).

True, practicing lawyers are advocates and will try to stretch the facts and the law in their client's favor when advocating in court.  They still have to objectively consider the facts and law when advising their clients and when preparing to advocate in court.  When I'm preparing to advocate in court, I focus on my adversary's best arguments and how I will defeat those arguments.  That's really hard to do if you refuse to consider your opponent's arguments fairly and objectively.  Furthermore, sitting trial and appellate judges are hardly immune from the sympathies and biases that sometimes stand in the way of objective reasoning.

Wis. Stat. s. 757.19 is another reason why practicing lawyers should be considered for appellate judgeships.  This rule requires a justice or judge to disqualify him or herself from an action or proceeding when he or she "previously handled the action or proceeding while judge of an inferior court."  Wis. Stat. s. 757.19(2)(e).  In short, Court of Appeals judges and Supreme Court justices cannot review their own trial court decisions and Supreme Court justices cannot review Court of Appeals decisions that they joined.  Justice Rebecca Bradley was a Court of Appeals judge, but only for about five months.  Governor Walker's decision to appoint Court of Appeals Judge Mark Gundrum or Court of Appeals Judge Thomas Hruz would have had a far greater impact on the Wisconsin Supreme Court's review of Court of Appeals decisions in the upcoming term.  Judge Gundrum has been on the Court of Appeals since 2011 and Judge Hruz has been on the appellate bench since 2014.  The Court of Appeals uses three-judge panels.  Consequently, appointing one of the sixteen sitting Court of Appeals judges to the Wisconsin Supreme Court would result in disqualification of that new justice in almost 20% of our supreme court's cases during the following term (3/16).  Six-justice panels lead to tie votes, which lead to opinions from our state's highest court that do not establish precedent and fail to provide guidance to judges, lawyers, government officials, and citizens.  In contrast, a practicing lawyer appointed to an appellate judgeship would rarely (if ever) need to disqualify him or herself from an appellate review, especially if the practicing lawyer represented individuals or small businesses (rather than big corporations, governments, or public interest groups) who rarely end up in court. 

Monday, June 20, 2016

Wisconsin Supreme Court Grants My Clients' Petition For Review In Melchert v. Pro Electric Contractors

I've written about my clients' Petition For Review in Melchert v. Pro Electric Contractors here and here.  My patience has finally been rewarded, as the Wisconsin Supreme Court issued the following order:

Petition for Review
Filed By: Rudolph Kuss
Submit Date: 4-21-2015
Decision: (G) Grant
Decision Date: 6-16-2016
ORD that the petition for review is granted and that except as otherwise ordered by the court herein, pursuant to Wis. Stat. (Rule) 809.62(6), the plaintiffs-appellants-petitioners may not raise or argue issues not set forth in the petition for review; and
FRO that in addition to the issue identified in the petition for review, the parties are directed to brief an additional issue: Does Wis. Stat. 182.0175(2), the Diggers Hotline statute, create a ministerial duty. The parties should discuss the relevance of the statute to the case, whether the facts in the record demonstrate compliance with the statute, and if so, how; and
FRO briefs/statements 30/20/10; and
SHIRLEY S. ABRAHAMSON, J. (concurring). I note that the order granting review (which is a form order) is internally inconsistent. The parties are directed to brief the new issue, but the defendants-respondents are also instructed that they may file a statement that no brief will be filed. My interpretation of the order is that the direction to brief the new issue takes precedence over the instruction that the defendants-respondents may file a statement that no brief will be filed.
ANNETTE KINGSLAND ZIEGLER, J. (concurring). My concern with ordering briefing on the issue pertaining to Wis. Stat. 182.0175(2) is that it could place this court in the role of fact-finder. The Wisconsin Supreme Court is not a fact-finder. However, I defer to my colleagues regarding their wish to have this issue briefed and will keep an open mind as arguments unfold.
For the foregoing reason, I respectfully concur.
I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence.

The Wisconsin Court of Appeals' decision is available here.  My clients' Petition For Review (which I of course drafted) is only thirteen pages long.  Here's my Criteria For Review section:
The Court of Appeals affirmed a Waukesha County Circuit Court decision holding that Wis. Stat. § 893.80(4) immunizes a governmental contractor from liability for causing property damage through severing a sewer lateral while installing a traffic light.  More specifically, the Court of Appeals held that the severing of the sewer lateral was caused by the implementation of a decision for which immunity was available for governmental entities under Wis. Stat. § 893.80(4), reasoning that this injurious conduct resulted from a legislative or quasi-legislative decision.  2013AP2882, ¶¶ 9-11.     
The Court of Appeals’ decision conflicts with this court’s decision in Showers Appraisals, LLC v. Musson Bros., Inc..  See Wis. Stat. (Rule) § 809.62(1r)(d).  Contrary to Showers Appraisals, the Court of Appeals ignored the property owners’ allegations that they had suffered flooding damages as a direct and proximate result of the contractor’s severing of the sewer lateral and failure to repair the severed sewer lateral.  See 2013AP2882, ¶¶ 2-3.  This court held in Showers Appraisals that such negligent construction allegations “cannot form the basis for immunity for a contractor.”  Showers Appraisals, LLC v. Musson Bros., Inc., 2013 WI 79, ¶ 54, 350 Wis. 2d 509, 835 N.W.2d 226.  This court further warned that “[a]llowing governmental contractors to claim immunity in such instances would vastly expand the doctrine of governmental immunity.”  Id., ¶ 58.  Therefore, such claims “should be analyzed no differently than negligence claims against other contractors.”  Id., ¶ 59.  
Furthermore, a decision by this court would help develop, clarify or harmonize the law with respect to government immunity from liability for causing property damage through negligent construction work.  Such a decision would have statewide impact based on the sheer amount of government construction work performed in this state and the dangers that negligently-performed government construction work poses to property owners.  See Wis. Stat. (Rule) § 809.62(1r)(c)2.  Such a decision would resolve a question of law of the type that is likely to recur unless resolved by this court, see Wis. Stat. (Rule) § 809.62(1r)(c)3., to the extent that this court did not already resolve that question of law in Showers Appraisals. 
Finally, this court needs to reexamine its governmental immunity jurisprudence in the event that the Court of Appeals’ decision does not conflict with that jurisprudence.  See Wis. Stat. (Rule) § 809.62(1r)(e).  The decision of how deep and wide to auger a hole in order to install a traffic light is not the least bit legislative or quasi-legislative.  Such a decision has nothing to do with the power to make law.  Such a decision does not involve the consideration of social, economic or political judgments.  Rather, the decision of how deep and wide to auger a hole is the type of construction decision that government contractors make all of the time.  Unfortunately, government contractors sometimes make incorrect decisions and property owners suffer damages as a result.  If this court cannot rein in the doctrine of governmental immunity so that property owners can recover for damages caused by negligent government construction work, then this doctrine cannot be saved and should be scrapped altogether.           

Friday, March 4, 2016

Wisconsin Supreme Court Accepts Eight New Cases, Still Waiting On Melchert

As I've discussed before, my clients' petition for review in Melchert v. Pro Electric Contractors has been pending since April of 2015.  Today, the Wisconsin Supreme Court accepted eight new cases, but Melchert was not one of them.  Fortunately, it was not one of the twenty-nine cases that were denied review.

In the meantime, I will continue to work on my three appeals that are in briefing and consider your potential appeal.  Please contact me at

Friday, January 29, 2016

All Appellate Lawyers Need Is Just A Little Patience

Last week, the Wisconsin Supreme Court granted 12 petitions for reviews and denied numerous others.  Conspicuously absent from this list was my clients' petition for review in Melchert v. Pro Electric Contractors.  As you can see, the Wisconsin Court of Appeals' decision adverse to my clients was filed on March 11, 2015.  I timely filed my clients' Petition For Review on April 9th, and my adversaries timely filed their response on April 21st.  Over 9 months later, we're still waiting to find out whether or not the Wisconsin Supreme Court will take the case.

As an experienced appellate lawyer, such delays no longer surprise me.  The Court of Appeals typically files its decisions 4-6 months after the last brief is filed, but there are some exceptions.  In Reichertz v. Gullickson, the Court of Appeals did not file its twelve-paragraph, per curium decision affirming a default judgment until almost 8 months after the last brief was filed.  The Melchert decision itself was filed over 9 months after the last brief was filed.

Delays often occur before the first brief is filed.  The Court of Appeals needs most of the documents filed in the trial court ("the record on appeal"), as well as transcripts of the trial and motion hearings.  It has to rely on the trial court judge's court reporter to file and serve these transcripts within 60 days after payment arrangements were made by the party that requested them.  My experience is that the Court of Appeals regularly grants court reporters extensions of the 60-day deadline even when the court reporter has not requested an extension prior to the expiration of this deadline.       

Delays often occur during the briefing schedule as well.  After the record on appeal is filed, appellants have 40 days to file their brief and appendix.  Thereafter, respondents have 30 days to file their response brief and appellants have 15 days after that to file their reply brief.  Appellate lawyers often ask for extensions of these deadlines, and I have learned over time that it is fruitless to oppose such motions.  I have often seen the Court of Appeals accept heavy workload as an excuse, even though such excuses would never fly with most trial court judges.  Then again, I appreciate this leniency when I really need it, such as when I sought an extension for filing Appellants' Brief And Appendix in Melchert because my former office (which was in a basement) had flooded and remained in an unsafe condition for over a week.

As an experienced appellate lawyer, I am used to riding the storm out and seeing my clients' appeals through to the end.  Please contact me at so that we can discuss your options on appeal.

Monday, January 18, 2016

Evaluating The Post-Trial Appeal

I have prosecuted and defended numerous post-trial appeals, including Ording v. Wisconsin State Home Services, Inc.; WED Development LLC v. Re/Max Realty 100; Kosek v. Hanauska; Keller v. Gaszak; Esser v. HigginsHolz v. First Weber Realty; and Lenzke v. Brinkmann Pools LLC.  If you were the losing party at trial, the number one rule is that you do not appeal the result.  Appellate courts will not disturb a jury verdict unless there are absolutely no inferences from the credible evidence to support it.

Instead, you have to look for errors in the process that led to the result.  Did the trial court err in admitting or excluding certain evidence or testimony?  Did the trial court err in failing to strike a juror?  Did opposing counsel engage in misconduct in presenting evidence or in arguing to the jury?  Did the trial court err in instructing the jury?  Did the trial court err in formulating the special verdict questions?  Did the trial court err in accepting a verdict with inconsistent answers?

However, "issue spotting" is not enough to give you a fighting chance of success.  Trial courts generally have the discretion to control the selection of the jury, the presentation of evidence, and the instruction and questioning of the jury.  Also, as a practical matter, most appellate judges are former trial court judges who remember the control that they exercised over their courtroom and give their trial court brethren the deference that they would have wanted back then.  You have to develop a convincing argument that the trial court applied the wrong legal standard when it barred your expert witness from testifying.  You also have to develop a convincing argument that the trial court's legal error likely affected the outcome of the trial.

Please contact me at so that we can discuss your clients' potential appeal. 

Saturday, January 16, 2016

Civil Trial Lawyers Should Not Handle Their Own Appeals

When I was a boy, there was a prominent sign in the family business that said "When you're the fastest gun in the west, don't get into a knife fight."  Though I didn't understand what the sign really meant, its wit has stuck with me all these years.  Towards the beginning of my legal career, I heard the same message in a language that lawyers can easily understand: "General practice is Malpractice."

The point is that cowboys, salesmen, and lawyers all need to stick to what they do best.  When they come across a task that is not in their wheelhouse, they need to delegate that task to someone who specializes in it.  I do this all the time when someone asks for help with a DUI ticket or a will.  Trust me, you do not want my help with a DUI ticket or a will.  You will end up paying me a lot of money to educate myself on an area of the law that is completely foreign to me, and I still might screw it up.  Instead, I will refer you to a DUI defense or probate specialist.

Many civil trial lawyers think that they should handle their own appeals.  They figure "I took this case, I pled this case, I conducted discovery, I got this case past summary judgment, I convinced the jury to find for my client; why shouldn't I defend the appeal?"  They ignore that appellate practice and trial practice are very different specialties.  Take it from Wisconsin Court of Appeals Judge Gary E. Sherman:

What are your thoughts on the state of appellate practice in Wisconsin right now? 

The best briefs I get are from the appellate division of the State Public Defender and the appellate specialists at the Department of Justice. These lawyers write briefs over and over and over again and most of them are quite good at it. I think there is something to be said for practice. 

So you’re saying that those briefs are better than most of the briefs you read? 

Yes, in fact, as you know, a lot of times, people who are good trial lawyers think that somehow that means they’d be good at appellate advocacy and that’s just not true. I mean, there’s a completely different skill set in being a trial lawyer. Which is basically an oral, or verbal, skill set. Fast on your feet, think quickly, keep a lot of stuff in your mind thing. Whereas appellate advocacy is, of course, written, but not just written but slow. Everything has to be thought through very carefully, all the I’s dotted, the T’s crossed. Every single argument that we’re willing to respond to, we call it developed argument, has to be fully supported by citations, both to the record, for the facts, and, to mandatory authority for the law. That is not how trial lawyers have to think. They are not doing that day after day in the courtroom. So, some of the most disappointing briefs that we get are from larger firms. I’m not going to name any names. It boggles my mind that all of the big firms don’t have, on staff, appellate writing specialists.     

Regardless of whether your clients won or lost at trial, you need to start preparing for the appeal.  If you do not regularly practice in the appellate courts, you have to find someone who does as soon as possible.  This is particularly true if your clients lost, as you have just twenty days after the verdict to file the motions that will preserve your clients' appellate arguments.

I have regularly prosecuted and defended appeals over the past ten years.  I know how to preserve, develop, and support winning appellate arguments.  Please contact me at so that we can discuss your clients' post-trial options.

Sunday, January 3, 2016

My Track Record

The Wisconsin Court of Appeals releases its annual report in February or March.  In 2014, the Court of Appeals affirmed 83% of the civil orders and judgments that it reviewed.  This does not mean that 17% of civil appellants were successful.  This 83% figure excludes reversals, but it also excludes orders and judgments that were affirmed in part and reversed in part; orders and judgments that were affirmed and remanded for further proceedings; orders and judgments that were modified; and appeals that were dismissed (never a good result).  In reality, civil appellants have less than a 15% chance of any success on appeal.

As discussed in the last post, I have litigated 43 appeals to a Court of Appeals decision.  By "litigated," I mean that I filed at least one appellate brief.  I am also not counting those appeals that settled before the Court of Appeals released its decision, even if I filed at least one appellate brief before the case settled.  I represented appellants in 35 of these litigated appeals and respondents in the other 8.

I have obtained some level of success for 16 of my 35 appellants.  This number includes complete reversals, such as Ferris v. Location 3 Corporation; Harvey v. Frank J. & Mary F. Miller Family Trust; Honeyager v. City of New Berlin; Byrd v. Landowski; Griswold v. Rogich; and Wilks v. J.P. Morgan Chase.  This number also includes partial reversals, some of which didn't feel like "wins," such as Below v. Norton; Novell v. Migliaccio; and Malzewski v. Rapkin.  The bottom line is that the affirmance percentage on civil appeals is only 54% when I represent the appellants.

I have obtained affirmances for 7 of my 8 respondents.  The only case in which the appellant achieved any success was Ording v. Wisconsin State Home Services, Inc., in which the Court of Appeals held that the jury's verdict in favor of my clients was supported by credible evidence but the trial court inadequately exercised its discretion in awarding my clients their attorneys' fees.

I represented the petitioner in front of the Wisconsin Supreme Court in Below v. Norton, which resulted in an affirmance of the Court of Appeals decision.  While affirmance of the Court of Appeals decision is not a good result for a petitioner, the Wisconsin Supreme Court remanded the case to the circuit court on one issue and clearly communicated its disagreement with how the lower courts handled this issue.

I represented the respondent in front of the Wisconsin Supreme Court in Novell v. Migliaccio and obtained an affirmance of the Court of Appeals decision.

According to the 2014 Court of Appeals Annual Report, the Wisconsin Supreme Court granted only 4 of the 101 petitions for review that were filed in civil cases that year.  I have filed only three petitions for Wisconsin Supreme Court review - one was granted, one was denied, and one is still pending.  I have argued against three petitions for Wisconsin Supreme Court review - two were denied and one was granted.

While I am pleased with my level of appellate success, potential appellants must understand that they face a difficult road on appeal regardless of who represents them.