Vol. 71, No. 12, December 1998
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.
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