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 rudolphkuss@stevensandkuss.com so that we can discuss your options on appeal.

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. Higgins; Holz v. First Weber Realty; Lenzke v. Brinkmann Pools LLC; Estate of Ziolkowski v. Mobility Works, LLC; Garver v. Krueger; and Wilhelm v. McCoy Contractors, Inc.  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 rudolphkuss@stevensandkuss.com so that we can discuss your clients' potential appeal. 

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 rudolphkuss@stevensandkuss.com so that we can discuss your clients' post-trial options.

My Track Record

The Wisconsin Court of Appeals releases its annual report in February or March.  In 2017, the Court of Appeals affirmed 90% of the civil orders and judgments that it reviewed.  This does not mean that 10% of civil appellants were successful.  This 90% 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 10% chance of any success on appeal.

As discussed in the last post, I have litigated 63 appeals and cross-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 52 of these litigated appeals and cross-appeals and respondents in the other 11.

I have obtained some level of success for 19 of my 52 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 63.5% when I represent the appellants.

I have obtained affirmances for 10 of my 11 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.

I represented the petitioner in front of the Wisconsin Supreme Court in Melchert v. Pro Electric Contractors, which resulted in an affirmance of the Court of Appeals decision and Justice Rebecca Grassl Bradley's outstanding dissenting opinion (joined by Justice Daniel Kelly) 

According to the 2017 Court of Appeals Annual Report, the Wisconsin Supreme Court granted only 32 of the 326 petitions for review that were filed in civil cases that year.  I have filed only three petitions for Wisconsin Supreme Court review, and two of them were granted.  I have argued against six petitions for Wisconsin Supreme Court review - five 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.                 

Welcome To My Newest Blog

My name is Rudy Kuss, and I am a shareholder with Stevens & Kuss, S.C. in Brookfield, Wisconsin.  I primarily focus on representing homeowners who have purchased a defective property and homeowners who are experiencing problems with their newly-constructed home or a home improvement project.  Most of these disputes end up being resolved in court.  You can learn much more about my primary area of practice through reading my other blawg (legal blog) - atty4homeowners.

While most of my work takes place at the circuit court level, I have amassed considerable experience at the appellate court level.  We appeal after our cases get dismissed.  Our adversaries appeal after we win at trial.  By my count, I have litigated 63 appeals and cross-appeals that  resulted in a Court of Appeals decision, and 3 of those appeals resulted in a Wisconsin Supreme Court decision.

Through this blog, I will share my Wisconsin civil appeals experience and the lessons that I have learned through this experience.  I hope that Wisconsin attorneys will use this blog as a resource and that some of you will recommend my appellate practice to your clients.