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    Wisconsin Lawyer
    December 01, 1998

    Wisconsin Lawyer December 1998: At Issue

    At Issue

    Point and Counterpoint: Should Wisconsin Change its Counterclaim Statute?

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    Pro


    The Bench Bar Committee proposal removes guesswork as to what claims are mandatory counterclaims and provides finality and equity by ensuring certain claims are litigated when they should be.

    By Donald Leo Bach

    Suppose you have a client who has just been sued in circuit court. The client advises you that she has a claim against the suing party. As a good lawyer you do what you were taught in law school, go to the statute book, find the one on counterclaims - section 802.07 - and read it. The statute tells you that a defendant "may counterclaim any claim which the defendant has against a plaintiff." You conclude that in Wisconsin counterclaims are permissive, and you advise the client that she does not have to bring a counterclaim in this lawsuit if she does not wish to do so.

    But wait. Have you read A.B.C.G. Enterprises Inc. v. First Bank Southeast N.A., 184 Wis. 2d 465, 515 N.W.2d 904 (1994)? In that case, the Wisconsin Supreme Court held that the principles of res judicata (claim preclusion) preclude a defendant who could but did not counterclaim in a prior action from bringing a later action on the claim if it "would nullify the initial judgment" or "impair rights established in the initial action."

    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

    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.


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