BRIEFS FOR THE BRIEF WRITER: Know your local rules, or else

Listen to this article

I once was charged with opposing a summary judgment motion in a multi-claim, multi-issue case. The movant’s brief, close to 35 pages, was accompanied by a motion to allow the filing of an overly long brief (to which we did not object). I prepared and filed my brief, which fell within the county’s local rules (but not by much).

A short time later, I received a copy of opposing counsel’s brief in the mail, with a handwritten note from the court rejecting that brief for not complying with the local rules’ page limits for such briefs. Counsel then had to prepare and file a new, much shorter brief, to which I had to prepare and file a modified opposition. Efficiency, and both clients’ hard-earned money, paid the price.

It is debatable whether the court should or shouldn’t have granted my opponent’s enlargement motion, or whether that motion should have been filed before, not with, the brief itself.

What is not debatable, however, is the importance of the various courts’ rules, and the ease by which a harried counsel can forget to consult them.

Only six of Wisconsin’s 72 counties do not have local rules: Columbia, Door, Florence, Green Lake, Langlade and Price counties. The remaining counties have enacted one form or another of rules to administratively govern their judicial divisions.

Some rules, such as those in Milwaukee and La Crosse counties, are detailed and/or expansive, covering civil, family, probate, small claims, juvenile, criminal and other types of cases. Others, like those in Marquette and Vernon counties, are more general and cover fewer practice areas.

The variety in local rules, and their requirements, can be a hazard if you’re not careful. Forgetting to consult the rules for a county in which your case is venued can give opposing counsel ammunition, such as for a motion to strike a noncompliant brief. Rarely, counsel can unwittingly subject himself or his client to otherwise preventable sanctions.

One example of the local rules’ variance is as to motion briefs. The page limits for initial briefs are: 25 pages in Ozaukee County (Rule 204.4); 30 pages in Waukesha County (Rule 5.6); 15 pages for summary judgment or dismissal motions and seven pages for other motions in Brown County (Rules 402. 404); and 10 pages for non-dispositive motions, 20 pages for dismissal or judgment on the pleading motions, and 25 pages for summary judgment or class certification motions in Milwaukee County (Rules 3.11, 3.14, 3.15).

Under most local rules, the court need not consider briefs which do not comply with their rules’ requirements.

Thus the axiom “better safe than sorry” applies. In the old days, obtaining local rules, especially rules from an outside county, often meant a trip to the library or a phone call to (and a fax or mail from) a county clerk.

Those days, happily, are long gone.

State and federal local rules are readily available and accessible, in both print and online formats. If they are not already there, the following links can easily be added to your computer’s favorites:

Wisconsin Circuit Court rules

Eastern District rules

Western District rules

Seventh Circuit Local Rules

Wisconsin Appellate Courts

No local rules; Chapters 808 and 809, Wis. Stats. apply. See, nonetheless, Court of Appeals’ Internal Operating Procedures for information regarding Court of Appeals’ handling of appellate cases and motions.

Local rules, of course, do not exist in a vacuum. They must be read in conjunction with their statutory counterparts and related case law, which provide the substantive civil procedural requirements. For example, Waukesha County Rule 5.4 references summary judgment motions, but Sec. 802.08, Wis. Stats. states when and how such motions are appropriate.

In this regard, local rules cannot trump governing statutory provisions. This was made clear in Hefty v. Strickhouser, 2008 WI 96, 312 Wis.2d 530, 752 N.W.2d 820, which invalidated a Walworth County local rule that provided a different summary judgment motion response time than contained in Sec. 802.08(2), Wis. Stats. While the circuit court could have deviated from the statute in an individual case within the court’s scheduling order, the circuit court could not create a blanket rule which, in essence, overrode the statute.

The lesson here? Know your statutes. And your rules.

DIANE SLOMOWITZ is a shareholder with the law firm of Fox, O’Neill & Shannon SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected].