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    Wisconsin Lawyer
    May 01, 2006


    Thomas Shriner Jr

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 5, May 2006


    Letters to the editor: The Wisconsin Lawyer publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may be edited for length and clarity. Letters should address the issues, and not be a personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to " Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them.

    It's Time to Adopt Federal Rule 13

    I commend Don Bach for a fine article on compulsory counterclaims in our state courts ("Landing in A.B.C.G. Soup: The Compulsory Counterclaim Trap," March 2006). The article explains clearly where the law stands, how it got to be the way it is, and why the current state of the law is a trap for the unwary practitioner. It also proposes a sound solution to the problem: adoption of Federal Rule 13.

    Mr. Bach's proposal should be adopted. The current rule, Wis. Stat. section 802.07(1), misleads lawyers who conclude, from reading its text and not knowing the case law, that all counterclaims are permissive. That's reason enough to change it. But an independent reason to adopt Rule 13 is that, unless there is an important reason for a particular difference, the rules of procedure in state and federal courts should be the same. Attorneys who don't regularly engage in civil litigation in the state courts, and new lawyers who learn the federal rules in school, are always at risk of falling into a trap when there is a significant difference between state and federal rules. We should eliminate these traps whenever there is not a strong justification for them. There is none for this one.

    There was no good reason not to adopt Rule 13 in 1975, when our Wisconsin Supreme Court adopted most of the rest of the federal rules. Claims between parties arising out of the same transaction should be litigated together. (Unrelated claims need not be, and Rule 13 draws the line intelligently between claims that should be kept together and those that need not be.) Thirty years' experience under the apparently permissive language of section 802.07 has exposed the dangers underlying its deceptive simplicity. It is time to adopt Rule 13.

    Thomas L. Shriner Jr.

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