It is both curious and frustrating that Wisconsin’s circuit courts do not use a standardized motion practice procedure. Rather than relying on standardized procedural rules, lawyers must guess which deadlines, if any, apply for responses. For example, most counties do not have rules dictating whether a reply brief is permitted or whether a proposed order is required at the time the motion is submitted or after it is heard.
Logistically, Wisconsin courts also lack a uniform procedure to set a hearing on a motion. Doing so might require first setting up a scheduling call with the judge or getting potential dates from the clerk. The varying and unstated procedures pertaining to motions and calendaring need not be this way.
Other Jurisdictions Use Standardized Motion Practice Procedures Successfully
First, some background: The Wisconsin Legislature (somewhat) sets Wisconsin’s civil procedures, in Wis. Stat. chapters 801-809. Legislative involvement is not universal across the United States. In Iowa, the supreme court makes the rules and the legislature merely publishes them.1 Similarly, in Minnesota, the supreme court publishes rules for civil procedure and general practice.2 Because courts in the United States are charged with managing themselves, it is not intuitive that a separate branch of government should set procedural rules. Courts will be more familiar with appropriate filing and timing procedures because they implement them daily.
Ryan R. Simatic, William Mitchell 2011, is a Milwaukee native and an attorney and officer with
Biersdorf & Associates. His principal office is in Minneapolis, where he focuses in eminent domain and real estate litigation.
Nevertheless, the paramount issue is not who is dictating the rules but whether the rules are uniform. Significantly, in both Minnesota and Iowa, the procedural rules apply statewide.3
The American Bar Association Standards Relating to Court Administration also favor the promulgation of uniform rules of practice issued by a central court. Standard 1.11(c) provides:
“(c) Uniform standards of justice. The procedures by which the court system administers justice should be based on principles applicable throughout the system, and, so far as practicable, should be uniform in their particulars.”
These uniform rules provide statewide certainty in procedures. In Minnesota and Iowa, for example, the deadline for responses to motions is readily apparent.4 Both systems also explicitly allow reply briefs.5 Some even provide explicit guidance on what must be filed along with a motion.6
Wisconsin Has a Patchwork of Procedural Rules
Unlike these standardized systems, Wisconsin’s rules of procedure have considerable gaps.
In Milwaukee County, a movant is prohibited from filing a motion without first obtaining a hearing date.7 Rock County has no such prohibition. I recently attempted to get a hearing date in Oneida County in advance of filing a motion (a process that is allowed in Milwaukee County) and was told that the court would set a telephonic conference (two months out) to then pick a date for a motion hearing and I could file the motion at any point.9
In Milwaukee County, a summary judgment motion must be filed at least 45 days before the hearing.9 In neighboring Racine County, the motion would have to be filed at least 30 days before the hearing.10 In Brown County, the same motion would have to be filed
60 days before the hearing.11 And while Milwaukee County provides a date certain for responses to summary-judgment motions, neither Brown County nor Racine County does. Pierce County has no uniform practices for summary judgment at all, instead merely referring to “suggested” timeframes.12
The frustrating variance in these procedures is exacerbated by the fact that they are well known and have been for decades. In 1992, the Wisconsin Legislature amended Wis. Stat. section 802.08, which governs summary-judgment motions, in response to “a plethora of local court rules concerning deadlines related to summary judgment.”13 Yet, the abundance of rules remains.
Not only this, but parties can short-circuit the briefing procedures adopted by the local jurisdictions merely by disagreeing with them.14 There are thus many local rules that are facially void unless they are restated in a scheduling order or agreed to by the parties.
Wisconsin Statutes section 802.08 is also inadequate regarding briefs. The common modern practice is to allow the movant a reply after the respondent’s response.15 Section 802.08 is silent on whether a reply is allowed. But because a reply brief would complement the state rule, rather than contradict it, judges or localities could arguably allow reply briefs. But rather than rely on local custom or a judge’s preferences, the entire state could be operating on a uniform procedure.
Although summary judgment presents a striking illustration of Wisconsin’s lack of uniformity, the lack of uniformity exists in other areas of practice too. For example, any lawyer who practices in federal courts is familiar with the “meet and confer” requirement needed before bringing a discovery motion, a practice specifically designed to spare the judiciary from unnecessary battles.16 The meet and confer, as a general rule, requires counsel for the parties to have a meeting (often in person or by telephone) to discuss a discovery dispute before a court will hear a motion to compel discovery. Although some Wisconsin circuit courts have a similar rule (for example, Pierce County R. 305.01), some do not (for example, Trempealeau County).
Perhaps worse than this lack of specific discovery-motion procedure is that there is no standardized procedure in Wisconsin statutes for
any nondispositive motions. Many counties also have no procedural template for nondispositive motions (for example, Chippewa, Manitowoc, Oneida, Ozaukee, Rock, Waukesha, Washington).17 Wisconsin’s rules also do not address the propriety of moving for reconsideration, a waste of judicial and litigant time and resources in most instances. Other states explicitly ban the practice except in extraordinary circumstances.18
Uniform procedural rules could be beneficial in other ways as well. For example, in the federal courts (and in some states, for example, Minnesota), the parties are obligated to make mandatory disclosures and to confer regarding a discovery plan.19 After receiving the parties’ discovery report, the trial court must issue a scheduling order.20 This process moves cases along automatically with both the litigants and the court having obligations that do not involve official requests.
Advantages of Standardized Motion Practices
Midwesterners are not necessarily known for making waves. But Wisconsin’s neighbors have modernized their court systems by adopting uniform procedures that promote efficiency and reduce costs. Many federal courts have, too. Wisconsin could adopt one of these successful models.
Judicial efficiency has been expressed as “minimiz[ing] the sum of error [costs] and direct costs.”21 “Efficiency” in the legal context has also been described as “minimizing the direct costs of litigation (which include the time of lawyers, litigants, witnesses, jurors, judges and other people, plus paper and ink, law office and courthouse maintenance, telephone service) as well as the costs that result from delay.”22 The desire to minimize costs dominates legal rulemaking.23 “[A]s the world becomes more complex, decisionmakers need to economize the process of judging.”24
Standardized rules deliver these efficiencies and other benefits. Lawyers save time because they do not have to learn entirely new procedures when practicing in different counties. Judges save time because scheduling conferences and extraneous orders are eliminated or reduced. Appellate courts do not have to hear appeals about abuse of discretion related to procedures. And standardized rules protect the public by eliminating potential malpractice claims related to procedural rules that vary by jurisdiction and make self-representation easier.
Although ease of application is enough of a goal to justify implementing standardized motion practices, standardization also has other benefits. Having standardized calendaring procedures strikes a balance between prompt hearings and judicial preparation. Standardized procedures lead to quicker placement of disputes on a court’s calendar and thus quicker resolution. This gives parties more control over legal disputes, by advancing cases toward trial or settlement. And standardized dates balance this speed with judges’ need to have sufficient time to prepare before hearings.25
Eliminate the Patchwork
Although Wisconsin’s patchwork procedures are well known, the legislature’s attempt at standardization failed to remedy the problems. This is not because standardization is particularly difficult but because the statutory changes were too limited and vague, thus necessitating local rules and orders to fill the gaps. A uniform procedural system must be comprehensive enough to eliminate the need for most local rules.
If civil procedure rules were standardized statewide, local rules could be complementary to the standard rules but should not contradict them. This level of standardization is not, however, a total restriction on judicial discretion. Even comprehensive procedural systems allow for modification.26 Moreover, time limits could be modified by an explicit scheduling order, just as they are now. The goal of standardization, however, would be to limit the need for judges and litigants to engage in these resource-intensive exercises (creating and implementing local rules and custom orders) that do not substantively advance specific cases.
Wisconsin’s patchwork of civil procedure needs to change. There are several ways to change it. The Wisconsin Supreme Court, in its administrative capacity, or the judicial administrative districts themselves, could agree to adopt uniform procedural rules for dispositive and nondispositive motions. Or, the Wisconsin Legislature could enact new statutes to guide statewide procedures. Regardless of the method, Wisconsin’s civil procedure rules should be standardized.
1 Iowa Code § 2B.5B.
2 Minn. R. Civ. P. 1–86; Minn. Gen. R. Prac. 1–907 (www.revisor.mn.gov/court_rules/rule/gp-toh/).
3 See Minn. R. Gen. Prac. 1 (“These rules shall apply in all trial courts of the state”); Iowa R. Civ. P. 1.101 (“The rules in this chapter shall govern the practice and procedure in all courts of the state…”).
4 See Minn. R. Gen. Prac. 115 (response to motions due 14 days before hearing); Iowa R. Civ. P. 1.431 (response to motions due within 10 days after service of the motion).
5 See, e.g.,Minn. R. Gen. Prac. 115.03(c); Iowa R. Civ. P. 1.431(5).
6 See Minn. R. Gen. Prac. 115.03 (when filed, dispositive motion requires notice of motion and motion, memorandum of law, proposed order, and affidavits, if any).
7 Milwaukee Cnty. Local R. 1.19.
8 The author was recently involved in a continuing legal education program where a calendaring process was discussed: Litigants can pick a date on an electronic calendar for motion hearings themselves, thus sparing the need for scheduling conferences and phone calls with the clerk. If such processes are available, we should use them.
9 Milwaukee Cnty. Local R. 3.15.
10 Racine Cnty. Local R. III(C)(1).
11 Brown Cnty. Local R. 404(b).
12 Pierce Cnty. Local R. 306.03.
13 Hefty v. Strickhouser, 2008 WI 96, ¶ 60, 312 Wis. 2d 530, 752 N.W.2d 820.
14 Compare Milwaukee Cnty. Local R. 3.15 (Milwaukee County’s summary-judgment-motion procedures, which require responses 25 days before hearing, only apply if parties agree), with Hefty, 2008 WI 96, ¶ 64, 312 Wis. 2d 530 (local rules that establish a deadline for response to a summary-judgment motion sooner than the five days before hearing specified in Wis. Stat. section 802.08 are invalid unless the court issues a scheduling order establishing an earlier date).
15 E.D. Wis. Local Civ. R. 56(b)(3); Minn. R. Gen. Prac. 115.03(c); N. D. Ill. Local R. 56.1.
16 Fed. R. Civ. P. 37(a)(1).
17 But see Adams Cnty. Local R. 3.03, 4.04 (setting forth motion procedure with guidance on obtaining hearing dates and explicit deadlines for briefing on motion, response, and reply).
18 See Minn. R. Gen. Prac. 115.11 (motions to reconsider prohibited except with court permission on a showing of “compelling circumstances”); Iowa R. Civ. P. 1.904(4) (successive motions to reconsider judicial findings prohibited).
19 Fed. R. Civ. P. 26(a)(1), (f); Minn. R. Civ. P. 26.01(a), 26.06.
20 Fed. R. Civ. P. 16(b)(1)(A).
21 Richard Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399, 401 (1973).
22 Robert Ziff, For One Litigant’s Sole Relief: Unforeseeable Preclusion and the Second Restatement, 77 Cornell L. Rev. 905, 910 (1992).
23 Isaac Ehrlich & Richard A. Posner, An EconomicAnalysis of Legal Rulemaking, reprinted in 1 L. & Econ. 122, 145 (Richard A. Posner & Francesco Parisi eds., 1997). See generally Richard A. Posner, Economic Analysis of Law (1998) (arguing that the common law can be best understood as an attempt to achieve economic efficiency).
24 Jonathan R. Macey, The Pervasive 21 Influence of Economic Analysis on Legal Decisionmaking, 17 Harv. J.L. & Pub. Pol’y 107, 116 (1994).
25 See Minn. R. Gen. Prac. 115 cmt. (1997) (standardized motion deadlines chosen to balance need for prompt hearing of disputes with need of judiciary to have time to prepare to hear dispute).
26 See Minn. R. Gen. P. 115.07 (time limits of any motion may be modified if justice so requires).
» Cite this article:
95 Wis. Law. 42-45 (November 2022).