Vol. 79, No. 5, May
Letters to the editor: The Wisconsin Lawyer
publishes as many letters in each issue as space
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It's Time to Adopt Federal Rule 13
I commend Don Bach for a fine article on compulsory counterclaims in
our state courts ("Landing in A.B.C.G. Soup: The Compulsory
Counterclaim Trap," March 2006). The article explains clearly where
the law stands, how it got to be the way it is, and why the current
state of the law is a trap for the unwary practitioner. It also proposes
a sound solution to the problem: adoption of Federal Rule 13.
Mr. Bach's proposal should be adopted. The current rule, Wis. Stat.
section 802.07(1), misleads lawyers who conclude, from reading its text
and not knowing the case law, that all counterclaims are permissive.
That's reason enough to change it. But an independent reason to adopt
Rule 13 is that, unless there is an important reason for a particular
difference, the rules of procedure in state and federal courts should be
the same. Attorneys who don't regularly engage in civil litigation in
the state courts, and new lawyers who learn the federal rules in school,
are always at risk of falling into a trap when there is a significant
difference between state and federal rules. We should eliminate these
traps whenever there is not a strong justification for them. There is
none for this one.
There was no good reason not to adopt Rule 13 in 1975, when our
Wisconsin Supreme Court adopted most of the rest of the federal rules.
Claims between parties arising out of the same transaction should be
litigated together. (Unrelated claims need not be, and Rule 13 draws the
line intelligently between claims that should be kept together and those
that need not be.) Thirty years' experience under the apparently
permissive language of section 802.07 has exposed the dangers underlying
its deceptive simplicity. It is time to adopt Rule 13.
Thomas L. Shriner Jr.