Chapter 809

809.19(8)(b)3.d. d. If handwriting is used: the text must be legibly printed and not include cursive writing, except the person’s signature.

809.19(8)(b)3.e. e. Margins must be a minimum of a 1.25-inch margin on the right and left sides and a minimum of a 1-inch margin on the top and bottom.

809.19(8)(b)4. 4. The pages of paper documents must be secured together at the top left corner.

809.19(8)(bm) (bm) Pagination. A brief or appendix must have page numbers centered in the bottom margin using Arabic numerals with sequential numbering starting at “1” on the cover.

809.19(8)(c) (c) Length.

809.19(8)(c)1. 1. For a brief filed by a party under sub. (1), (5), or (6) (a), (b), or (c), or by a guardian ad litem under sub. (6m), those portions of the brief referred to in sub. (1) (d), (e) and (f) shall not exceed 50 pages if a monospaced font or handwriting is used, or 11,000 words if a proportional serif font is used.

809.19(8)(c)2. 2. For a reply brief filed under sub. (4) or (6) (d), those portions referred to in sub. (1) (e) and (f) shall not exceed 13 pages if a monospaced font or handwriting is used, or 3,000 words if a proportional serif font is used.

809.19(8)(c)3. 3. For a brief filed under sub. (7), those portions of the brief referred to in sub. (1) (e) and (f) shall not exceed 13 pages if a monospaced font or handwriting is used, or 3,000 words if a proportional serif font is used.

809.19(8g) (8g) Certifications.

809.19(8g)(a) (a) Briefs; certification regarding form and length.

809.19(8g)(a)1. 1. Counsel shall submit with the brief a signed certification that the brief meets the form and length requirements of sub. (8) (b), (bm), and (c) in the following form:

I hereby certify that this brief conforms to the rules contained in s. 809.19 (8) (b), (bm), and (c) for a brief. The length of this brief is .... [pages] [words].

Signed: ....

Signature

809.19(8g)(a)2. 2. For purposes of the certification of length under this paragraph, counsel filing a brief may use the word count produced by a commercial word processor available to the general public. The word count shall include the words of any text included in the brief in the form of an image.

809.19(8g)(b) (b) Appendices; certification regarding contents and confidentiality.

809.19(8g)(b)1. 1. An appellant’s counsel shall submit with the appendix a signed certification that the appendix meets the content and confidentiality requirements of sub. (2) (a) and (am) in the following form:

CERTIFICATION BY ATTORNEY

I hereby certify that filed with this brief is an appendix that complies with s. 809.19 (2) (a) and that contains, at a minimum: (1) a table of contents; (2) the findings or opinion of the circuit court; (3) a copy of any unpublished opinion cited under s. 809.23 (3) (a) or (b); and (4) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.

I further certify that if this appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix contains the findings of fact and conclusions of law, if any, and final decision of the administrative agency.

I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using one or more initials or other appropriate pseudonym or designation instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

Signed: ....

Signature

809.19(8g)(b)2. 2. Counsel filing a supplemental appendix shall submit it with a signed certification that the appendix complies with the confidentiality requirements under sub. (2) (am) in a form substantially similar to the confidentiality provision under subd. 1.

809.19(8g)(c) (c) Combined certifications. Certification of a brief under par. (a) and certification of an appendix or supplemental appendix under par. (b) may be combined in a single document for signature.

809.19(8g)(d) (d) Electronic signature. For electronic filing users, a certification may be electronically signed in accordance with s. 809.801 (12) (a).

809.19(9) (9) Brief covers. Each brief or appendix shall have a white front cover. The front cover shall contain the name of the court, the caption and number of the case, the court and judge appealed from, the title of the document, and the name and address of counsel filing the document. Except as provided in s. 809.81 (8) and (9), the caption shall include the full name of each party in the circuit court and shall designate each party so as to identify each party’s status in the circuit court and in the appellate court, if any. In the supreme court, “petitioner” shall be added to the party designation of the petitioner, and the respondent’s party designation shall remain the same as in the court of appeals.

809.19(10) (10) Citation of supplemental authorities. If pertinent authorities decided after briefing come to the attention of a party or a nonparty under sub. (7) or a guardian ad litem under sub. (6m) after the party’s or nonparty’s or guardian ad litem’s brief has been filed, or after oral argument but before decision, the party, nonparty, or guardian ad litem may promptly advise the clerk of the court, by letter, and serve a copy of that letter on all parties to the appeal. If the new authority is a decision of the Wisconsin court of appeals, the authority is considered decided for purposes of this subsection on the date of an order for publication issued under s. 809.23 (2). The letter shall do the following:

809.19(10)(a) (a) Set forth the citations for the authority.

809.19(10)(b) (b) Identify the page of the brief or the point that was argued orally to which the citations pertain.

809.19(10)(c) (c) For each authority that is cited, briefly discuss the proposition that the authority supports.

809.19(11) (11) Response to supplemental authorities. A response to the letter under sub. (10) may be filed within 11 days after service of that letter. The response shall briefly discuss the reason why each authority does not support the stated proposition, unless the proposition is not disputed.

809.19 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1979 c. 110; Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order, 111 Wis. 2d xiii (1983); Sup. Ct. Order, 112 Wis. 2d xv (1983); Sup. Ct. Order, 115 Wis. 2d xv (1983); Sup. Ct. Order, 123 Wis. 2d xx (1985); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 167 Wis. 2d xiii (1992); Sup. Ct. Order, 171 Wis. 2d xiii, xvii, xxxvii (1992); Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv (1993); 1993 a. 486; 1995 a. 224; Sup. Ct. Order No. 97-01, 208 Wis. 2d xxiii (1997); 1997 a. 35; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 04-11, 2005 WI 149, 283 Wis. 2d xix; Sup. Ct. Order No. 06-02, 2006 WI 118, 291 Wis. 2d xiii; Sup. Ct. Order No. 07-03, 2007 WI 129, 303 Wis. 2d xxvii; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18, 2009 WI 4, 311 Wis. 2d xxix; 2009 a. 180; Sup. Ct. Order No. 10-01 and Sup. Ct. Order No. 10-02, 2010 WI 42, 323 Wis. 2d xxiii; Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii; Sup. Ct. Order No. 14-01, 2015 WI 21, filed 3-2-15, eff. 7-1-15; Sup. Ct. Order No. 17-05, 2017 WI 95, filed 11-9-17, eff. 7-1-18; 2017 a. 364 s. 49; 2017 a. 365; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii; 2021 a. 240 s. 30.

809.19 Note Judicial Council Committee’s Note, 1978: Sub. (1). The format for briefs established in former Rule 251.34 is generally followed except that the requirement of a synopsis of the argument in the table of contents is eliminated. Former Rule 251.34 (1) required the synopsis and gave 200 Wis. 530 as an illustration. The synopsis was no longer included in most briefs and if it was, often was very lengthy and served no real purpose. It is replaced in the table of contents by a shorter, one sentence summary of each section of the argument portion of the brief. New statements pertaining to the need for oral argument and whether the opinion in the case will set precedent and thus should be published are added. The purpose of the latter is to assist the court in screening cases for oral argument or submission on briefs.

809.19 Note Sub. (2). The lengthy appendix with the narrative of testimony required by former Rule 251.34 (5) is replaced with the system used in the United States Court of Appeals for the Seventh Circuit. Under this system the original record serves as the primary evidence of what occurred in the trial court. The appendix becomes a very abbreviated document with only those items absolutely essential to an understanding of the case. It is designed to be nothing more than a useful tool to the members of the court. The failure to include some item in the appendix has no effect on the ability or willingness of the court to consider any matter in the record. This change, combined with the elimination of the requirement of printed briefs, should reduce the cost of an appeal.

809.19 Note Sub. (5). Each appellant in a case has the right to file a separate brief and need not share a brief with co-appellants.

809.19 Note Sub. (6). The parties to a cross-appeal can file the same briefs as the parties to the main appeal. Thus the cross-appellant can file a 40 page brief as cross-appellant in addition to his 40 page brief as respondent. The cross-appellant can also combine both briefs in a single brief but is limited to the page limits on each section of brief. A cross-appellant filing a 30 page brief as respondent is still limited to a 40 page brief as cross-appellant.

809.19 Note Sub. (7). The practice under former Rule 251.40 is modified to require the request to file an amicus curiae brief be made by motion rather than by letter. Rule 29, FRAP. The motion should indicate the interest of the amicus and why a brief by the amicus is desirable.

809.19 Note Subs. (8) and (9). In addition to briefs produced by the standard typographical process, briefs produced by a mimeograph or photocopy process from typewritten copy may also be filed. The principal objective is to reduce the cost of an appeal to the Court of Appeals. The specifications for the printed and typewritten pages are designed to result in briefs of approximately an equal number of words no matter which process is used. The paper size of 8-1/2 x 11 is specified for the sake of uniformity and ease of handling.

809.19 Note Colors for covers are specified to permit easy identification of the briefs. [Re Order effective July 1, 1978]

809.19 Note Judicial Council Committee’s Note, 1979: Sub. (8) (a) previously required that 30 copies of a brief or appendix be filed in either the Court of Appeals or Supreme Court. The number of copies to be filed in the Court of Appeals or Supreme Court has been reduced to 20 copies to reflect the smaller number of judges deciding an appeal before the Court of Appeals and the difficulty the Supreme Court is facing in having enough storage space to retain the 30 copies of a brief previously required. The provision in Rule 809.43 requiring the filing of 10 copies of a brief and appendix in an appeal heard by one judge remains unchanged. [Re Order effective Jan. 1, 1980]

809.19 Note Judicial Council Committee’s Note, 1981: Sub. (1) (e) is amended to incorporate SCR 80.02, governing citation of a published court of appeals or supreme court opinion in a brief, memorandum or other document filed with the court of appeals or supreme court.

809.19 Note Sub. (8) (b) 4 previously required that a brief and appendix be bound only on the left side with staple or tape. A sufficient number of heavy strength staples are to be used to assure that the briefs and appendix remain securely bound when used by the court of appeals and supreme court. The prior alternative method of binding the brief and appendix solely with tape is repealed.

809.19 Note Sub. (9) is amended to clarify that both a front and back cover of a brief and appendix are required. [Re Order effective Jan. 1, 1982]

809.19 Note Judicial Council Note, 1988: Sub. (7) (b) permits nonparties to request permission to file a brief supporting or opposing a petition for the Supreme Court to review a decision of the Court of Appeals or to take original jurisdiction. In these cases, the motion and the brief shall be filed together, within the time permitted for response by the opposing party.

809.19 Note Revised sub. (8) (c) clarifies that the page limit does not include the table of contents, table of cases and other authorities, statement of issues, statement on oral argument and publication, appendix or supplemental appendix. [Re Order effective Jan. 1, 1989]

809.19 Note Judicial Council Note, 2001: Subsection (1) (h) requires a signature on briefs. Subsection (1) (i) makes identification of the parties consistent and less confusing. Subsection (3) was revised to address a situation in which the appellant’s brief is served on the respondent, but has not yet been accepted for filing by the court. If the respondent undertakes to prepare its brief within 30 days after service of the appellant’s brief and the appellant’s brief has not yet been accepted for filing, the respondent will have wasted time and energy if the appellant’s brief ultimately is rejected. The last sentence of sub. (4) was added to require record references and a conclusion in a reply brief. Subsection (6) was rewritten to clarify briefing requirements in cross-appeals. The time limit in sub. (7) (c) was changed from 10 to 14 days. Please see the comment to s. 808.07 (6) concerning time limits. The reference to s. 809.43 was deleted in sub. (8) (a) 1. because the greater number of copies is needed when a single-judge appeal reaches the supreme court. Subsection (8) (a) 3. was amended to apply to pro se parties only. Subsection (8) (b) 4. was amended to allow “velobinding” of briefs, a process commonly accepted but not authorized by statute. Subsection (9) requires parties to use the complete case caption. Parties shall not abridge the caption by use of “et al” or similar phrases. Subsections (10) and (11) are new and establish a procedure for supplementing briefs or oral argument with pertinent authorities that subsequently come to the attention of a party or an amicus curiae, who is denoted a “nonparty” under sub. (7), or a guardian ad litem under sub. (8m). This procedure is based upon Federal Rule of Appellate Procedure 28 (j) and Circuit Rule 28 (e) of the Seventh Circuit Court of Appeals. [Re Order No. 00-02 effective July 1, 2001]

809.19 Note Judicial Council Note, 2002: Occasionally an appellant’s brief is filed before the record is filed with the appellate court clerk, especially in cases involving pro se appellants. The amendments to subs. (3) and (6) (b) 1. conform to current practice by establishing the due date for the respondent’s brief or respondent-cross-appellant’s brief as the latest of thirty days after date of service of the appellant’s brief (plus three days if service is by mail), thirty days after the date on which the court accepts the appellant’s brief or appellant-cross-respondent’s brief for filing, or thirty days after the date on which the record is filed in the office of the clerk.

809.19 Note Subsection (9) is amended to conform to the party designations used by the clerk’s office when a petition for review is granted. [Re Order No. 02-01 effective January 1, 2003]

809.19 Annotation Comment, October 2005: As the number of appeals has increased, the Court of Appeals’ reliance on appendices during the decision-making process has increased. The Court of Appeals requests that Wis. Stat. § (Rule) 809.19 (2) (b) be created to require that appellant’s counsel certify compliance with Wis. Stat. § (Rule) 809.19 (2) (a) (as renumbered by this order), that requires an appellant’s brief include an appendix and sets forth the contents of the appendix. The Court of Appeals believes that a certification requirement, similar to the form and length certification required by Wis. Stat. § (Rule) 809.19 (8) (d) will result in increased compliance with renumbered Wis. Stat. § (Rule) 809.19 (2) (a) and improve the quality of appendices that are filed with the court. [Re Sup. Ct. Order No. 04-11]

809.19 Note NOTE: Sup. Ct. Order No. 08-15 and 08-18, 2009 WI 4, states: “The following Comment to Wis. Stat. §§ (Rule) 809.19 (12) and 809.19 (13) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute.”

809.19 Note Comment, 2008: An electronic brief required under s. 809.19 (12) and an electronic appendix requested under s. 809.19 (13) are in addition to and not a replacement for the paper brief and appendix required under s. 809.19. The filing requirement is satisfied only when the requisite number of paper copies of the brief and appendix and the electronic brief are filed.

809.19 Note The filing of an electronic appendix is encouraged, but not required. These rules do not provide for total electronic filing at the appellate level. Accordingly, the paper copies of appellate briefs and appendices constitute the official court record.

809.19 Note An electronic brief shall be submitted to the court as a text-searchable Portable Document Format (PDF) document. “PDF” is a universal file format that preserves the fonts, formatting, pagination, and graphics of a source document. A text-searchable brief is created by electronically converting the original word processing file to a PDF document. An electronic appendix may be submitted as a non-text-searchable PDF document. A non-text-searchable appendix is created by scanning the paper document to create a PDF document.

809.19 Note Electronic briefs may be enhanced with internal links (such as a table of contents with links to locations in the brief) or external links (links to websites containing the text of cases or statutes cited in the brief). External links in an electronic brief shall not require a password for access to the case or statute. No enhancement to an electronic brief shall alter the text of the brief.

809.19 Note All electronic briefs shall be submitted in a single electronic file. The file containing the electronic brief shall not contain the appendix or any other document or material. An electronic appendix containing more than 200 pages may be split into smaller electronic files.

809.19 Note Sample electronic brief certification form:

809.19 Note CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (12)

809.19 Note I hereby certify that:

809.19 Note I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of s. 809.19 (12). I further certify that:

809.19 Note This electronic brief is identical in content and format to the printed form of the brief filed as of this date.

809.19 Note A copy of this certificate has been served with the paper copies of this brief filed with the court and served on all opposing parties.

809.19 Note   Signed ....

809.19 Note   Signature

809.19 Note Sample electronic appendix certification form:

809.19 Note CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (13)

809.19 Note I hereby certify that:

809.19 Note I have submitted an electronic copy of this appendix, which complies with the requirements of s. 809.19 (13). I further certify that:

809.19 Note This electronic appendix is identical in content to the printed form of the appendix filed as of this date.

809.19 Note A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.

809.19 Note   Signed ....

809.19 Note   Signature

809.19 Note [Re Order No. 08-15 and 08-18 effective July 1, 2009]

809.19 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.19 Note Comment, 2021: Sub. (1) (g) addresses cases in which an individual seeks a restraining order or harassment injunction as protection against domestic abuse or violence. 18 U.S.C. 2265 (d) prohibits making public on the Internet any information that would reveal the identity or location of the party seeking protection. In Wisconsin, parties should designate the party seeking protection solely as “petitioner” in the case caption and the briefs. Adding this requirement to the rule is consistent with current practice and federal requirements. It is an exception to par. (i), which otherwise requires reference to the parties by name and not by party designation. A similar change is made to s. 809.81 (9) regarding the caption.

809.19 Note Since late 2018, the circuit court case management software has been assigning a document number to each item in the circuit court record as it is filed. Sub. (2) (a) provides that the same number will be used in the record index for the appeal. This will make it easier for parties to refer to documents and will prevent confusion from stamping a document with two different numbers.

809.19 Note Sub. (2) (ae) requires the appendix to be filed as a single document. In the event of a very large appendix that cannot be electronically filed as a single document due to the size limitations of the system, s. 809.801 (8) directs the user to contact the clerk of court for assistance.

809.19 Note Sub. (3) (a) provides that the events used for calculation of the time for a response brief are filing of the brief, service of the brief, and filing of the record. When the clerk accepts a filed document, the clerk’s entry of the new document into the court record will trigger a notice of activity to the electronic parties, thereby serving them. Thus, for electronic parties the filing and service of the brief will often be the same day. For briefs submitted after the business hours of the clerk’s office, the clerk will enter the document into the court record the next business day, so the filing date will be different than the date of electronic service. The calculation of time for parties served by paper remains as provided in s. 809.8 (4) (b) and 801.14 (2).

809.19 Note Sub. (8) (a) provides that electronic filing users no longer need to file multiple paper copies of briefs with the court. A notice of activity to users is generated when the clerk enters the brief into the court record, allowing the other electronic parties to access the brief electronically. Paper parties file one paper copy of each brief and appendix with the court, which the clerk will scan and make part of the record.

809.19 Note Sub. (8) (b) makes a number of changes to form, while maintaining the overall appearance of the documents. Standards for handwritten briefs have been added, along with a statement of the court’s authority to review briefs for legibility. Margins are required so that scanned documents will include all the words.

809.19 Note Sub. (8) (bm) requires pagination using Arabic numerals beginning on the first page of each document. This will match the page number to the page header applied by the eFiling system, avoiding the confusion of having two different page numbers.

809.19 Note Sub. (8) (c) is reorganized to clarify allowable page counts and word limits for the various kinds of briefs. Page limits specific to handwritten briefs have been added, based on the average number of words per page found in handwritten briefs currently on file.

809.19 Note Sub. (8g) addresses certification of the brief, appendix, and supplemental appendix in a single section. The language of the certifications for brief and appendix is largely unchanged. Certifications may be combined into a single document for signature. Electronic filing users may certify using their electronic signatures.

809.19 Annotation Appellate counsel’s appendix containing only a copy of the judgment of conviction, a notice of motion and motion to suppress, and a notice of intent to pursue postconviction relief did not meet the standard under sub. (2) (a) to contain items “essential to an understanding of the issues raised.” When counsel certified that the essential items were in the appendix when they were not, the certification was false and counsel was subject to sanction. State v. Bons, 2007 WI App 124, 301 Wis. 2d 227, 731 N.W.2d 367, 06-1625.

809.19 Annotation When the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of sub. (2) (a) and (b) should not be found and why the attorney should not pay a monetary penalty for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification. The order to show cause should state that alternatively, the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation. State v. Nielsen, 2011 WI 94, 337 Wis. 2d 302, 805 N.W.2d 353, 10-0387.

809.19 Annotation The page length limits in sub. (8) apply in original jurisdiction actions. Watts v. Thompson, 116 F.3d 220 (1997).

809.20 809.20 Rule (Assignment and advancement of cases). The court may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.

809.20 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).

809.20 Note Judicial Council Committee’s Note, 1978: This rule incorporates the present unwritten procedure for having the submission of a case advanced. It also specifies the factors that may affect the advancement of a case. [Re Order effective July 1, 1978]