Litigation Section Blog: The Rules They Are A-changin’:

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  • Litigation Section Blog
    February
    20
    2018

    The Rules They Are A-changin’

    Sarah A. Zylstra

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    The Wisconsin Supreme Court recently initiated several evidence rule changes, including a new witness bias rule, and the Wisconsin Legislature is pondering significant changes to many procedural rules in civil actions. Sarah Zylstra outlines these new – and possibly future – changes.

    In October 2017, the Wisconsin Supreme Court issued an order formally adopting several changes to the rules of evidence, which rules took effect Jan. 1, 2018.

    Order 16-02A: Changes to Rules of Evidence

    In Order 16-02A, the court made changes to:


    • Wis. Stat. section 901.07  – rule of completeness for related writings or statements,

    • Wis. Stat. section 906.08  – evidence of character and conduct of witness, and

    • Wis. Stat. section 906.09  – impeachment by evidence of conviction of crime or adjudication of delinquency.

    The court also created Wis. Stat. section 906.16  – a new bias rule.

    In general, Order 16-02A does the following:


    • Clarifies the rule of completeness found in section 901.07, to make it clear that it is applicable to oral testimony as well as written testimony, and to provide guidance on how and when to apply the rule of completeness. The order adds to the statute that the purpose of the proffered testimony should be “to provide context or prevent distortion.”

    • Revises section 906.08, governing the impeachment of witnesses, such that the introduction of evidence of specific acts now matches Federal Rule of Evidence 608. The statute previously included reference to introduction of specific acts “for the purpose of attacking or supporting the witness’s credibility.” The statute has been changed to reference introduction of specific acts “for the purpose of attacking or supporting the witness’s character for truthfulness.” The Judicial Council note following the rule indicates that it is meant to clarify that the absolute prohibition on specific acts/extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness’s character for truthfulness and not to bar extrinsic evidence for bias, competency and contradiction impeachment which are governed by other rules of evidence.

    • Clarifies and amends section 906.09, which identifies when past criminal convictions may be introduced to impeach witnesses. The changes conform the rule more closely to current practice and indicate that a witness may be asked whether he/she has ever been convicted of a crime or adjudicated delinquent and the number of such convictions or adjudications. If the witness’s answers are consistent with the previous determination of the court, then no further inquiry may be made unless it is for the purpose of rehabilitating the witness’s character for truthfulness. The rule now more closely mirrors Federal Rule of Evidence 608.

    • Creates section 906.106 entitled “Bias of Witness,” which reads, “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.” The Judicial Council note to the rule indicates that it is a codification of the common law in Wisconsin and that bias, prejudice or interest is not a collateral matter, and can be established by extrinsic evidence.

    Order 17-03: Changes to Class Action Procedures

    In addition to these evidence changes, on Dec. 21, 2017, the court entered an order adopting proposed amendments to Wisconsin’s class action procedures in state court actions, which are “intended to align [the state rule] with the federal class action rule, Fed. R. Civ. P. 23.”

    Sarah A. Zylstra com szylstra boardmanclark Sarah A. Zylstra, U.W. 1998, is a partner with Boardman & Clark LLP, Madison, where she practices in all types of civil litigation in both state and federal court, and where she sometimes has to rely on the rules of evidence.

    Order 17-03 replaces Wisconsin’s current, one-sentence class action statute found in Wis. Stat. section 803.08. While this new rule becomes effective July 1, 2018, the order states that there will be a presumption that the new rule also applies to cases pending as of the effective date, absent a finding of unfeasibility or injustice.

    The order essentially adopts the Federal Rule 23’s terminology and procedures used in federal class action cases (such as requiring numerosity, commonality, typicality, and adequacy of representation, etc.) Because Wisconsin is expressly modeling its amended class action statute on Federal Rule 23, Wisconsin courts are likely to rely on federal precedent as persuasive authority in interpreting the new rules.

    Proposed Changes to Civil Procedure: AB773/SB645

    Despite the court’s adoption of amendments to Wisconsin’s class action procedures, the Legislature is currently considering a significant piece of legislation that overhauls numerous rules of civil procedure and other substantive changes, including changes to the class action statute.

    The Legislature’s proposed legislation to overhaul Rule 23 is similar, but not identical, to the order just entered by the supreme court. The proposed Assembly Bill 773/Senate Bill 645 is massive.

    While a thorough discussion of the proposed changes in this legislation is not possible in this blog, some proposed changes are:


    • Limiting the number of interrogatories, including subparts, to 25.

    • Limiting the number of depositions to 10, none of which may exceed seven hours in duration.

    • Establishing a proportionality element to discovery.

    • Limiting the time period for requests for production of documents to five years prior to the accrual of the cause of action.

    • Indicating that certain electronically stored information (such as legacy data, backup data, and data not reasonably accessible or that cannot be retrieved without substantial additional programming) does not need to be preserved, and a party may not require production of such data in discovery.

    • Changing the statutes of limitations for injury to character from six years to three years.

    • Changing the statute of limitations for fraud and for actions grounded on the liability created by statute from six years to three years.

    • Changing the statute of limitations for an action for injury resulting from improvements to real property from 10 years to six years.

    • Creating an automatic stay of all discovery and other proceedings upon the filing of a motion to dismiss for failure to state a claim upon which relief can be granted, a motion for judgment on the pleadings, or a motion for a more definite statement.

    • Lowering the interest rates for overdue insurance claims under Wis. Stat. section 628.46(1) from 12 percent to 1 percent plus prime.

    • Requiring notice of third-party litigation financing if the financer has a right to receive compensation that is contingent on the outcome of the action, and establishing numerous provisions relating to consumer lawsuit lending.

    AB773/SB645 is not yet law and may never become law. However, it is moving through the Assembly and Senate and seems to have significant support. For example, the Assembly bill has 23 representatives sponsoring the bill and the Senate bill has five sponsors. In addition, the Senate held a public hearing on its bill on Jan. 30, 2018.

    Whether you agree with the changes being proposed by the Legislature or not, it is important for practitioners to know of and monitor the legislative progression of AB773/SB645.

    In the words of Bob Dylan (with modification):

    Then you better start swimmin’ or you’ll sink like a stone
    For the [rules] they are a-changin’ . . .




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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact com mlein leinlawoffices Matthew Lein and gov nelson.phillips milwaukeecountywi Nelson Phillips III and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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