Personal Injury Law

Court Imposes Sanctions for Failure To Follow Rules Concerning Citation to the Record

By John A. Day

Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris,   Appeal No. 2008AP1647  (Wis. Ct. App. Div. II Dec. 2, 2009)  concerning the assertion of the Fifth Amendment in civil litigation.  I wanted to bring to your attention a footnote (Footnote 1) that addressed  the failure of counsel to follow court rules for  writing appellate briefs.  Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.

We note that neither Russell's nor Buske's appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all 'the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court's reasoning regarding those issues,' as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court's rulings on some of the issues on appeal. We impose a fine of $150 on Buske's appellate counsel and a fine of $150 on Russell's appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Justice Robert Hansen once wrote the now familiar phrase that '[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.' State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.

Full post as published by Day on Torts on December 16, 2009 (boomark / email).