The New Rules: One Year Later

The apparent effects of the new Wisconsin Rules of Civil Procedure since being put in place.
 
Last year, KMK cautioned that sweeping changes were coming to the Wisconsin Rules of Civil Procedure through legislation passed by the Wisconsin legislature in April 2018 (see this feature article). As the one-year anniversary of the rule changes approaches, this article reviews how the changes have been used by litigants in Wisconsin state courts and how they are being viewed by Wisconsin state-court judges.
 
Perhaps the most prominent change in Wisconsin state-court practice is an increase in the number of motions to dismiss that are being filed in response to a complaint. Under the new Rules, motions to dismiss for failure to state a claim automatically stay the litigation for 180 days, or until the motion is decided, whichever occurs first, permitting a defendant to put a freeze on litigation simply by filing such a motion. This is significantly slowing down proceedings.
 
Another important aspect of the new Rules is their imposition of the federal “proportionality” standard to govern discovery requests. This change was prompted by the belief that discovery costs are often disproportionately high compared to the amount in dispute in a case. It is too soon to tell exactly how these proportionality changes will ultimately impact Wisconsin state-court practice, but state-court judges have reported that the new Rules require them to delve into the merits of a case much sooner than they normally do. The result is an increased focus on merits issues in the early stages of a case, added scrutiny that may or may not be beneficial, depending on case strategy.
 
There also remain several unresolved ambiguities to the requirements and the Rules’ intentions concerning issues such as disputes about electronic discovery and protective orders. When asked for clarification on these issues, the legislative sponsors of the rule changes uniformly responded that politics is the art of compromise. In other words, the legislature has left courts with the task of resolving important ambiguities in the language of the new Rules. It may take a year or more before there are any precedential decisions on these ambiguous sections, leaving litigators with unsure footing until paths are laid.
 
Another response to the new Rules concerns the cases that may not be brought because of shortened statutes of limitations for a wide variety of claims. For instance, claims for fraud could previously be brought at any time within six years of occurrence, but the new Rules shortened that period to three years. A claim that a case must be thrown out because it is beyond the statute of limitations is an affirmative defense, so attorneys unaware of the new periods might inadvertently waive a statute of limitations defense, forfeiting the defense and allowing untimely claims to proceed.
 
Some lawyers and members of the Wisconsin Judicial Council have complained that the new Rules were imposed by legislators who do not think like litigators and are not sensitive to the needs and concerns of litigants. Nevertheless, the new Rules are controlling at this time, and litigants must adapt to and wisely use them to achieve their litigation goals. However, until these issues are ultimately resolved, it is very much not business as usual in Wisconsin state-court practice, and litigants should take heed.
 
If you have questions about the new Rules, or how they can be utilized to better accomplish litigation goals, contact KMK’s litigation attorneys Robert L. Gegios, Ryan M. Billings, or Melinda A. Bialzik at (414) 962-5110 or via email at rgegios@kmksc.com, rbillings@kmksc.com, or mbialzik@kmksc.com.
 
 
About KMK
Kohner, Mann & Kailas, S.C. (KMK) is a value-driven law firm with a global reputation for success and a rich tradition of results. When you need unsurpassed legal expertise in business and financial services, business litigation, or commercial collections, let our seasoned attorneys help you achieve your most important objectives. Founded in Milwaukee in 1937, KMK enjoys a local, national, and international reputation, recognized by U.S. News & World Report as one of the nation’s Best Law Firms. For more information, visit www.kmksc.com.For more information, visit www.kmksc.com