Even when a brief technically conforms to the Court of Appeals’ briefing rules, unwary counsel still can be sandbagged by the decisional briefing rules.
So follow these pointers to avoid missteps:
1. Appellant: make sure your record is complete. Otherwise, the court will assume the missing material supports the trial court’s ruling. Jensen v. McPherson, 2004 WI App. 145, Par. 6 n. 4, 275 Wis.2d 604, 609 n. 4, 685 N.W.2d 603.
2. Appellant: Don’t wait for your reply brief to first raise an argument. The appellate court won’t address them. Wisconsin Department of Natural Resources v. Building and All Related of Attached Structures Encroaching on the Lake Noquebay Wildlife Area, 2011 WI App. 119, Par. 22, 336 Wis.2d 642, 650, 803 N.W.2d 86. The rationale, which makes sense, is that the respondent has no opportunity to respond.
3. Appellant: Address the respondent’s brief’s arguments in your reply brief. This rule may be tricky in practice, given the short length of reply briefs. Even so, if you omit a response, the court may view the unaddressed argument as conceded. Apple Hills Farms Development, LLP v. Price, 2012 WI App 69, Par. 15, 342 Wis.2d 162, 171, 816 N.W.2d 914.
4. Respondent: Respond to the appellant’s brief’s arguments in your own brief. As with the appellant, silence as to an argument can constitute a concession. Charolais Breeding Ranches, Ltd. v. FPC Securities Corporation, 90 Wis.2d 97, 108-109, 279 N.W.2d 493 (Ct. App. 1979)
5. All “arguments” should contain real, actual argument. The court will not address “inadequately briefed” issues or undeveloped arguments. Goosen v. Estate of Standaert, 189 Wis.2d 237, 251, 525 N.W.2d 314 (Ct. App. 1994); State v. Pettit, 171 Wis.2d 627, 646-647, 492 N.W.2d 633 (Ct. App. 1992).
6. All arguments should have legal support. The court will not address unsupported arguments. See Scheuer v. Scheuer, 2006 WI App. 38, Par. 10, 290 Wis.2d 250, 257, 711 N.W.2d 698 .
7. All arguments should cite to the record. The court won’t address arguments unsupported by the record. See In re D.P. v. Dane County Department of Human Services, 170 Wis.2d 313, 334-335, 488 N.W.2d 133 (Ct. App. 1992), in which the court refused to consider the argument where the brief did not cite to decision in the record on the issue. If the court does address your argument, it won’t “sift through the record” to find supporting facts for you. See Anic v. Board of Review of the Town of Wilson, 2008 WI App 71, Par. 2 n. 1, 311 Wis.2d 701, 705, 751 N.W.2d 870.
8. Save your argument for your argument section. Don’t spin your fact section. While Secs. 809.19(1)(d) and (e), Wis. Stats. technically address this requirement, the court continues to reiterate its importance. “We remind litigants that editorial comment and argument (in a fact section) is inappropriate.” Markwardt v. Zurich American Insurance Co., 2006 WI App. 200, Par. 24 n. 10, 296 Wis.2d 512, 535 n. 10, 724 N.W.2d 669, cert. denied, 522 U.S. 824, 128 S.Ct. 172, 169 L.Ed.2d 33 (2007).
There is one rule, related to No. 8 above, whose violation by opposing counsel always angers me, even though the rule’s theoretical clarity is not always easily matched in practice. That rule holds that misleading statements in a brief violate counsel’s duty of candor to the tribunal under S.C.R. 20:3.3. See Natural Gas Co. v. Gabe’s Construction Co. Inc., 220 Wis.2d 14, 19 n. 3, 582 N.W.2d 118 (Ct. App. 1998). “We caution appellate counsel . . . that justice can only be done under accepted legal principles if all parties to a dispute take care not to exaggerate or mislead.” Estate of Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App. 101, Par. 24 n. 7, 335 Wis.2d 151, 182 n. 7, 801 N.W.2d 781, aff’d, 2012 WI 70, 342 Wis.2d 29, 816 N.W.2d 853. An angry court can even strike a brief it views as offensive in content or “scurrilous.” Puchner v. Hepperla, 2001 WI App 50, Par. 5, 241 Wis.2d 545, 550, 625 N.W.2d 609.
So, take a red pencil or your keyboard’s delete key to questionable statements, including those dangerous adjectives. And direct your arguments to the issues, not opposing counsel. Hur v. Holler, 206 Wis.2d 335, 344 n. 2, 557 N.W.2d 429 (Ct. App. 1996), review granted, 208 Wis.211, 562 N.W.2d 601, appeal voluntarily dismissed (1997) (comments directed towards opposing counsel “are not persuasive argument and are never welcomed by this court.”).
If a brief violates the statutory rules, Sect. 809.82(2), Wis. Stats. allows the appellate court to impose sanctions, including an appeal’s dismissal, an appeal’s summary reversal, a filing’s striking, or the imposition of costs or a penalty on counsel or a party. The court’s inherent authority gives it additional power over briefs it deems inappropriate.
The fact that these sanctions are permissive, not mandatory, should not give an error-ridden brief’s filer too much comfort. If, as they say, reputation is everything, one majorly blown filing could saddle counsel with a big red “N” for “Noncompliant” until the current judges and the clerk leave office. And a court’s public admonition, even if in a decision’s footnote, certainly will not foster a client’s, or potential client’s, confidence in counsel.