Bench
Bar Committee Mandatory Counterclaim Proposal
Should Wisconsin Change its Counterclaim Statute?
Con: The Bench Bar Committee proposal encourages too many claims,
doesn't allow enough time for meaningful investigation, and has
far-reaching ethical implications.
By Merrick R. Domnitz & Michael L. Eckert
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The public perceives that lawyers file too many "frivolous claims" in
civil courts throughout the country, including Wisconsin. The passage of
the mandatory counterclaim statute may well be a step towards making
this perception a reality for parties in civil litigation.
Section 802.05(1)(a) of the Wisconsin Statutes
requires that all claims, including counterclaims, be well-grounded in
fact and warranted by existing law. There is no statute that currently
mandates the filing of a counterclaim in a party's responsive pleading.
Consequently, there is no time limit, other than the statute of
limitations, on a party's ability to conduct an investigation of the
facts and law underlying a potential counterclaim. Because existing
procedural rules are structured to encourage full investigation, they
discourage the pursuit of frivolous counterclaims. Adoption of the
proposed mandatory counterclaim statute will likely achieve the opposite
result.
Upon service of the Complaint, counsel for the defendant will have 45
days to determine not only the existence of each and every potential
counterclaim, but the factual and legal basis for each and every
potential counterclaim. The duty to investigate would be triggered by
the filing of a claim against a defendant who may not even have
anticipated being party to the civil proceeding, let alone a defendant
who anticipated a need to conduct any meaningful investigation of the
facts and circumstances surrounding the claim. Forty-five days does not,
typically, allow counsel enough time to make a reasoned and intelligent
decision regarding the facts or law underlying a claim. Counsel may have
no choice but to file a "shotgun" pleading, asserting every conceivable
counterclaim.
The Rules of Civil Procedure should be
fashioned to encourage, not discourage, a full and complete analysis of
the facts and law underlying all claims brought before the civil bench.
The passage of the proposed mandatory counterclaim statute will not
encourage such investigation. To the contrary, it will encourage
"shotgun" pleading in civil courts throughout the state.
From defense counsel's perspective, mandatory counterclaims also may
have far-reaching ethical implications. Often times defense counsel are
confronted with a client who not only requires a defense to a potential
claim, but has suffered personal injuries in the accident that forms the
basis of the plaintiff's cause of action. It is an obvious conflict of
interest for defense counsel to represent the interest of the client in
defense of the plaintiff's claim, and to represent the client with
respect to personal injuries sustained in the accident. A mandatory
counterclaim statute may leave defense counsel confronting that
situation; that is, a client with a viable personal injury claim with
little alternative but to undertake conflicting representation. This
potential becomes even more apparent in the event of an approaching
statute of limitations, or in the case of a client who is unwilling to
act on his or her own behalf in retaining counsel with respect to the
client's right of recovery for personal injuries sustained in the
accident.
Merrick R. Domnitz, Hamline 1977,
chairs the State Bar Litigation Section Board of Directors, is a member
of the Association of Trial Lawyers of America Board of Directors, and
is a member and past president of the Wisconsin Chapter of the American
Board of Trial Advocates. He is the senior shareholder in the Milwaukee
and Kenosha law firm of Domnitz, Mawicke, Goisman & Rosenberg
S.C.
Michael L. Eckert, U.W. 1975, is a civil trial practitioner
emphasizing defense law, in Rhinelander. He is a past president of Civil
Trial Counsel of Wisconsin, and a member of the Defense Research
Institute, The Federation of Insurance and Corporate Counsel, and the
International Association of Defense Counsel.
Wisconsin
Lawyer