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Exasperated, District 3 penalizes all parties to appeal

Loren H. Laufman v. North Central Power Co., Inc., 2012AP2116, District 3 (per curiam; not eligible for publication or citation).

Normally, On Point would not trouble its readers with a per curiam decision involving insurance coverage issues.  This one, however, penalizes parties for violations of Wisconsin’s Rules of Appellate Procedure, so appellate lawyers of all stripes should pay attention.  Skipping over the substantive insurance issues, here’s what you need should know:

1.  Present “developed” arguments.

The brief filed by North Central (the appellant in this case) apparently failed to explain how an event constituted a wrongful act under the insurance policy at issue.  So the court of appeals said: “We may therefore reject North Central’s argument. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (‘We will not decide issues that are not, or inadequately, briefed.’).” ¶9

The court means business. To the detriment of clients, it has invoked this principle in a number of recent decisions.  Click here. So what exactly is an “inadequately briefed” or “insufficiently developed” argument?   State v. Pettit, 171 Wis. 2d 627, 646, 429 N.W.2d 633 (Ct. App. 1992) provides some examples:  (1) undeveloped themes that don’t reflect any legal reasoning; (2) arguments supported only by general statements; (3) arguments unsupported by references to legal authority; and (4) arguments the court itself would have to develop in order to decide.  Maybe the court deserves some sympathy:

We sometimes (perhaps too often) make allowances for appellate counsel’s failure to abide by these rules. However, the Court of Appeals of Wisconsin is a fast-paced, high-volume court. There are limits beyond which we cannot go in overlooking these kinds of failings. [Appellant’s] brief is so lacking in organization and substance that for us to decide his issues, we would first have to develop them. We cannot serve as both advocate and judge.  Id., at 647.

2.  Address the circuit court’s rationale.

North Central also failed to address the circuit court’s rationale for its decision–a big mistake, said the court of appeals: “When an appellant ignores the ground upon which the trial court ruled, it thereby concedes the validity of that holding. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).  Thus, we further reject North Central’s straw-person argument as to what constituted the wrongful act.” Slip op.,  ¶10

3.  Refer to parties by name and double check the accuracy of record cites.

Respondent Safeco Insurance Co., one of North Central’s insurers, prevailed on appeal but not without a muddy face.  Its briefs referred to the parties by designation, rather than name.  Plus, according to the court, it misrepresented the record by making assertions about what the circuit court found and what a party intended, while citing only to allegations in the complaint. “Safeco’s misrepresentations and improper citations violate WIS. STAT. RULE 809.19(1)(e), (3)(a)2. As a penalty for its violations of the rules of appellate procedure, Safeco shall forfeit its appellate costs. See WIS. STAT. RULE 809.83(2).”  Id., ¶13

Keep in mind that the parties are prohibited from using full names where the record is confidential and discouraged from using full names where the case involves the victim of a sensitive crime. See State v. Larry Wright, fn. 1.

4.  File an appendix that’s not too fat, not too thin, but just the right size.

The other prevailing respondent, St. Paul Fire and Marine Insurance Co., suffered a similar fate for filing a “corpulent” appendix:

¶18 Although it is a prevailing party, St. Paul shall not recover any WIS. STAT. RULE 809.25(1) appellate costs. St. Paul filed a three-volume, 845-page appendix. Pages 17-845 consist solely of the three policies it issued to North Central for the 2000-01, 2001-02, and 2002-03 policy years . . . St. Paul’s appendix was largely redundant, and unnecessary. Fourth, St. Paul’s counsel signed the appendix certification, representing that it had complied with the rule for appendices. See WIS. STAT. RULE 809.19(2)(b), (3)(b); State v. Bons, 2007 WI App 124, ¶¶23-25, 301 Wis. 2d 227, 731 N.W.2d 367 (failure of an appendix to comport with the certification is a serious infraction and is grounds for imposition of a penalty). An appendix is to be “short” and include “limited portions of the record essential to an understanding of the issues raised.” WIS. STAT. RULE 809.19(2)(b); see also State v. Nielsen, 2011 WI 94, ¶11, 337 Wis. 2d 302, 805 N.W.2d 353 (appendix should be “a very abbreviated document with only those items absolutely essential to an understanding of the case”). An irrelevant, redundant, 800-plus page appendix is inappropriate and does not aid the court in any manner. [9]

fn.9 While we make no assumptions, the only purpose of St. Paul’s appendix that we can imagine would be to unnecessarily drive up costs. In any event, it would have had that effect. Had we chosen to overlook St. Paul’s excessive appendix, St. Paul would have recovered $1,616.55 in costs from North Central, just from preparation of the appendices alone (829 pages x .15/page x 13 required copies). See WIS. STAT. RULES 809.19(8)(a)2., 809.25(1)(b)1.

The reference to Nielsen is noteworthy. There, the court of appeals sanctioned an attorney for filing a skimpy appendix.  On review, the Wisconsin Supreme Court “suggested” that before sanctioning counsel for filing a non-compliant appendix, the court of appeals should issue a separate order to show cause, which directs the attorney to explain why a violation of 809.19(2)(a)&(b) should not be found and why the attorney should not have to pay the sanction to the court of appeals.  Nielsen, ¶33.  Here, however, the court of appeals did not issue an order to show cause before sanctioning either St. Paul or Safeco, which suggests that Nielsen’s “suggestion” can and will be ignored.   The court of appeals’ quirky sanction (the preemptive denial of costs) is especially troubling.  Presumably, the attorneys wrote the briefs, assembled the appendices, and signed the false certifications.  However, clients, not the attorneys, recover costs on appeal.  Thus, the clients, not the attorneys, have been sanctioned for the rules violations in this case.  Oops?

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