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BRIEFS FOR THE BRIEF WRITER: Are appellate reconsideration motions worth it?

Weighing the decision to appeal an adverse decision from the Court of Appeals is a lot like any decision these days involving money: Is it really worth it?

Section 809.24, Stats. allows a party to file a motion for reconsideration within 20 days after the date of the final Court of Appeals decision, though parental right termination or abortion appeals are not subject to reconsideration motions. But we must ask ourselves: Is it worth the client’s money to make such a motion?

Reconsideration motions are rarely granted, after all. This is especially true with issues that were argued to and considered by the appellate court.

The good news is that, despite the odds, in an appropriate case, a reconsideration motion can give the Court of Appeals the opportunity to correct its own record. Logically, it would seem the court would look favorably on a reconsideration motion that points out an obvious omitted issue or error of that court. Jurists are human after all, and make mistakes.

The additional good news is that, where a losing party contemplates filing a petition for review to the Wisconsin Supreme Court, a reconsideration motion can have concrete practical benefit. That is because a reconsideration motion will extend the deadline for the filing of a petition for review.

A petition for review to the Supreme Court must normally be filed within 30 days after the date of the final Court of Appeals decision. Sec. 808.10(1), Stats. A petition for review is an appellate brief of its own dimension, which focuses on how the hearing of your case will aid the Supreme Court’s function of developing, clarifying or expanding the law, as opposed to the Court of Appeals’ function of correcting errors.

The filing of a reconsideration motion in the Court of Appeals tolls the deadline for the filing of a petition for review. The 30-day time period for filing a petition will begin to run from the date of the order denying the reconsideration motion or an amended decision. Sec. 808.10(2). A reconsideration motion even stays the Court of Appeals’ remittitur, which would normally return the record to the circuit court 31 days after the Court of Appeals decision. Sec. 809.26(1), Stats.

So, if the Court of Appeals has committed an obvious error or omission that you believe it might correct if brought to its attention and if you otherwise plan on filing a petition for review, filing a reconsideration motion can give you extra time to prepare your petition. You won’t get much additional time, however, given these motions’ quick turnaround.

But given the reconsideration motion’s short page limit, you need not reinvent the wheel to prepare it. And, if you’re one of the lucky few, the Court of Appeals may grant your motion and reconsider its decision.

Of course, it behooves your appellate reputation and your client’s pocketbook to file a reconsideration motion only when you believe the Court of Appeals’ decision is seriously flawed. If you decide to so move, strictly follow Sec. 809.24’s requirements. File the motion in a timely fashion, since the 20-day period cannot be enlarged. Sec. 809.82(23)(e), Stats. State your grounds with particularity, including the factual and/or legal issue(s) about which the Court of Appeals erred or which the Court omitted, and include supporting argument with citations to the record. The short page limit (with no opportunity of reply) requires that your point(s) of error and argument be succinct — reconsideration motions are limited to five pages in monospaced font or 1,100 words in serif font. Sec. 809.24(1).

The Court of Appeals usually will issue either an amended decision or an order denying the motion. Sec. 809.24(2). The Court could order opposing counsel’s response before deciding the motion. Sec. 809.24(1).

And if you decide it’s not worth it, remember that, although very unlikely, the Court of Appeals can always reconsider its decision on its own volition, at any time before remittitur or within 30 days after the filing of a petition for review to the Supreme Court. Sec. 809.24(3).

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 dslomowitz@foslaw.com.

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