Nov. 15, 2017 – No one wants to lose, but losses that result from human error are especially hard for clients to swallow and might even lead to them filing grievances against their lawyers with the Office of Lawyer Regulation.
It’s a good policy to adopt practice management procedures like those suggested by Tom Watson at Wisconsin Lawyers Mutual Insurance Co.1
To learn more about procedural hurdles and pitfalls, and to further error-proof your pretrial practice, consult Wisconsin Civil Procedure Before Trial from State Bar of Wisconsin PINNACLE®.
Actions Against the State Require Compliance with Presuit Process
Do you know that a plaintiff cannot bring suit “against a state officer, employee, or agent to recover for injury, damage, or death for any act ‘growing out of or committed in the course of the discharge of the officer’s, employee’s or agent’s duties’ until the plaintiff has strictly complied with the notice-of-claim provisions of Wis. Stat. section 893.82”?2
Failure to give proper notice is a jurisdictional defect, which is not waived by failure to plead it as an affirmative defense[,] may lead to dismissal[,] and does not necessitate discovery, summary judgment, or both.3
Thus, in a recent case (Thorsland v. Wolter), the court of appeals upheld the circuit court’s dismissal of suit against an individual because the plaintiffs failed to include his name as a defendant in the notice of claim they had served on the Wisconsin attorney general.
In a comment, the Chapter 2 authors say Wis. Stat. section 893.82 could appropriately be titled, “When in doubt, give notice.” They wisely note, “In suits against state employees, plaintiff’s counsel should err on the side of caution by giving notice whenever there is any connection between the state actor’s claimed action or inaction and his or her duties.”4
Incorrect Service Can Be Fatal to a Claim
It is not only the person named in the notice of claim but also how that notice is served, that is crucial.
In a 2016 Wisconsin Supreme Court case, Sorenson v. Batchelder, the plaintiff sued a state employee who, while driving, caused an accident in which the plaintiff sustained personal injuries and property damage. The plaintiff served the attorney general personally, and the defendant argued this method of service did not comply with the statute. As discussed in Section 2.27 of Civil Procedure Before Trial, Wis. Stat. section 893.82(5) states that service must be by certified mail. For this reason, in Sorenson, the supreme court agreed with the defendant. The plaintiff’s failure to use certified mail was fatal to her claim; it was “a jurisdictional defect that require[d] dismissal of the action.”5
Statute of Limitations: When When Is as Important as Who and How
Another type of procedural mistake that can result in dismissal of an action is filing after the statute of limitation has ended. Woe be to the lawyer who accepts an automobile accident case and relies on memory or an outdated case-management system for the deadlines for bringing suit.
Civil Procedure Before Trial to the rescue again. The authors of Chapter 2 note amendments affecting statutes of limitation on claims involving property damage and on claims arising from a motor vehicle accident and covered by a motor vehicle insurance policy.6
Filing suit after expiration of the limitation period is not fatal on its own, but if the negligent lawyer’s adversary is more on the ball, the filing will be met with a motion to dismiss.
When the statute of limitation expires, the plaintiff still retains his or her cause of action, but a new right is created in the defendant – namely, the right to raise the statute of limitation as an affirmative defense to the plaintiff’s suit.7
Earn Clients’ Confidence by Knowing the System
Of course, not every misstep in pre-trial preparation will lead to a disaster. But merely averting catastrophe is a low measure of civil litigation success. Clients also want to minimize the time and money they spend as litigants, and lawyers can help attain this goal by practicing efficiently. Wisconsin Civil Procedure Before Trial will ensure you know the rules from the start, rather than after you’ve been corrected by the court.
No client wants to pay extra for the time you spend refiling in the proper jurisdiction (see Chapter 3), redoing documents to comply with Wisconsin’s electronic filing rules (see Chapter 5), or filing or responding to motions to amend or strike that could have been avoided if you had filed complete, correct pleadings (see Chapter 8).
And these are merely a few of the topics covered in the book. Other topics include joinder, provisional remedies and declaratory relief, termination without trial, discovery, alternative dispute resolution, and case management procedures.
While there are no 100-percent guarantees in litigation, using Wisconsin Civil Procedure Before Trial will help you optimize the likelihood of legal victories and client satisfaction.
How to Order
Wisconsin Civil Procedure Before Trial is available in both print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers. Electronic forms from the book are available online to print book owners and to Books UnBound subscribers.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing).
For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
1 “Risk Management: Five Common Lawyering Mistakes – and How to Avoid Them,” Wisconsin Lawyer, November 2017.
2 See Civil Procedure Before Trial § 2.27.
6 See id. § 2.62.