Vol. 73, No. 5, May 2000

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Jandrt's Probable Effects on Trial Counsel

All trial counsel in Wisconsin, regardless of the nature of their practice, need to reflect on how Jandrt may affect their pleading and practice methods. It appears clear that under Jandrt:

• Pleading alternate causes of action in Wisconsin may pose serious and dangerous business.

• "Information and belief" pleading may become a thing of the past. Indeed, the entire concept of notice pleading may be placed in jeopardy by the tenor of the Jandrt decision. Boilerplate defenses, counterclaims, and cross-claims will be treated no differently than complaints under this decision.

• The entire concept of a reasonable investigation before suit, as well as the nature of discovery following the commencement of suit, must be rethought in light of Jandrt.

• A plaintiff's attorney may want to think long and hard before accepting a case at or near the running of a statute of limitation. Starting suit with the expectation that you will build a case through discovery now will be very dangerous under Jandrt.

• It may well be necessary to retain experts or consultants before commencing suit or asserting a counterclaim or cross-claim, and to be certain that you can sustain each element of a claim before you publish a pleading. According to Chief Justice Abrahamson in her dissent from the denial of Previant's Motion to Reconsider Jandrt, under Jandrt "lawyers cannot rely on discovery to obtain information to protect themselves against a claim of frivolousness."¹

• It no longer will suffice to commence an action, counterclaim, or cross-claim and then focus on one form of discovery until that avenue is exhausted. If there are any doubts concerning the merits of a claim, immediate, aggressive, and comprehensive discovery will be the only prudent course of action.

• If there is any possibility that relevant information can be acquired, either before or after suit, by any means other than through formal discovery, one would be very well advised to aggressively pursue the acquisition of such information.

• The emphasis on sanctions as a form of compensation may lead to a proliferation of claims under sections 802.05 and 814.025 of the Wisconsin Statutes. After all, if one believes that there is a colorable basis for seeking sanctions, the failure to assert such a claim on behalf of a client may be malpractice.

• Overall, the Jandrt decision may significantly chill innovative plaintiff's litigation or creative cost and liability spreading through cross-claims. As noted again by Chief Justice Abrahamson in her dissent from the denial of the Motion to Reconsider Jandrt, the case at bar was "complex and is seeking to prove a causal link between chemicals and birth defects that previously has not been established. ... Every toxic tort has a first case, and all of them are initially considered 'novel.'" But under Jandrt, pursuing such novel claims is now very dangerous.²

¹ Jandrt v. Jerome Foods: Reconsideration Dissent, __ Wis. 2d __, 601 N.W.2d 650, 653 (Oct. 28, 1999), 18.

² Id. at 15.