A Final Circuit Court Judgment Isn't Always Final - Understanding an Appeal

Oct 4, 2019 | Matthew J. Hills

Imagine you are the CEO of a construction management company.  At your direction, the company’s attorneys have spent more than two years in Wisconsin Circuit Court litigating a dispute with a former contractor.   Not only ha​s the company paid thousands of dollars in legal fees, it has sunk hundreds of hours of your employees’ and your own time into the matter in retaining and producing documents, appearing for depositions, and other tasks associated with the litigation.  Finally, after a week’s long jury trial, you get your verdict.  You won.  You are rightfully elated and more than a little relieved.  But less than a month later, your attorney calls with bad news—your former contractor has filed a notice of appeal. You thought you could put the matter behind you, but it turns out you may not have any finality for years.

What happens next?

Frequently, a “final” judgment issued by the Circuit Court is just the beginning.    In Wisconsin, every litigant can appeal a final judgment of a Circuit Court as a matter of right.   This does not mean that the case is retried on appeal. The function of the Court of Appeals is to review the record created in the Circuit Court to ascertain if the final judgment is affected by prejudicial error.    In most cases, the Court of Appeals is limited to considering whether the Circuit Court erroneously exercised its discretion, applied the correct legal standard, or correctly interpreted the applicable law.

In Wisconsin, most appellate cases are decided on the written submissions to the Court alone.  Oral argument occurs only at the option of the Court, which it exercises in only a handful of cases every year.

The typical appellate case proceeds according to the following steps and timeline:

• The appellant will have 90 days after entry of the final judgment to file a document called a “Notice of Appeal” with the Circuit Court that issued it.  However, if your opponent files a Notice of Entry of Final Judgment, the appellant will have only 45 days to file the Notice of Appeal.  The Circuit Court’s timely receipt of the Notice of Appeal is jurisdictional, which means failure to timely file will likely result in a waiver of the appeal right.
• Within 14 days of the filing of Notice of Appeal, the appellant must complete, serve, and file a statement on transcript.
• Within 40 days after the Appellant filed the Notice of Appeal, the Circuit Court must transmit the entire record of the court proceedings to the Court of Appeals. The parties have at least 10-days’ notice to inspect and, if necessary, move to correct the record for completeness before it is sent to the Court of Appeals.
• The Appellant’s brief is due 40 days after the record is filed with the Court of Appeals.
• The Respondent’s brief is due 30 days after the Appellant’s Brief is served. 
• The Appellant’s reply brief is due 15 days after the Respondent’s brief is served. 

After completion of the briefing, there is no set schedule for the court to issue its decision. In 2018, the average time from the date of the filing of the Notice of Appeal to the decision was 262 days.  This is an average.  Three judge panel decisions averaged 465 days, one judge decisions 224, and per curiam 449 days.  Litigants have no way of knowing which type of adjudicator the case will be assigned to.

Facing an appeal, whether as an appellant or respondent, can be daunting.  It is important that litigants talk with their attorneys after a final judgment is handed down by the Circuit Court to either prepare to file an appeal or prepare for the possibility of responding to one.  It is worth noting that in Wisconsin, roughly 85 percent of final judgments are upheld by the Wisconsin Court of Appeals.