The Effect of the New Rules of Civil Procedure

In “Sweeping Changes to Rules of Civil Procedure” (Wisconsin Lawyer, June 2018), authors Ryan Billings, Robert Gegios, and Melinda Bialzik looked at 2017 Wis. Act 235, which dramatically altered Wisconsin’s civil procedure rules. The authors wrote that the Act, prepared without the input usually provided by the Wisconsin Supreme Court and Judicial Council for laws affecting civil procedure, makes substantial changes that will undoubtedly affect the balance between the pursuit of a case’s merits in discovery and the expense of that pursuit. Their article further explained the new rules and identified basic issues surrounding their interpretation that they expect will cause uncertainties and challenges as parties and courts litigate under the new rules.

Judge Gasiorkiewicz and William Gleisner, authors of “Please Not So Fast: The Haste to Alter Rules of Civil Procedure,” a subsequent article regarding the fast-track to promulgate and enact the rules, responded, to which authors Billings, Gegios, and Bialzik replied.

We wrote our article “Please Not So Fast: The Haste to Alter Rules of Civil Procedure” (Wisconsin Lawyer, July/Aug. 2018) primarily to highlight the deficiencies in the process that led to the adoption of Act 235. We also intended to stress the differences between Act 235 and the Federal Rules of Civil Procedure. As we stated at the beginning of our article, we commend Attorneys Billings, Gegios, and Bialzik for their article “Sweeping Changes to Rules of Civil Procedure” (Wisconsin Lawyer, June 2018).

However, it has come to our attention that some readers believe that we were being critical of Billings, Gegios, and Bialzik. Nothing could be further from the truth. We believe that their article was scholarly and well researched. While we disagree with some of their conclusions, their article has added significantly to the discussion of Act 235.

Judge Eugene A. Gasiorkiewicz
William C. Gleisner III

We appreciate the spirited commentary contained in the July/August opinion piece, “Please, Not So Fast! The Haste to Alter Rules of Civil Procedure,” addressing our June 2018 article, “Sweeping Changes to Rules of Civil Procedure.”

The objective of our article was to explain the new Wisconsin rules of procedure, note the rules’ origins, and identify basic issues surrounding their interpretation. We strived to do so in an informative and neutral way, focused on benefitting the bench and bar, rather than offering judgment on whether the rules should have been enacted in the first place.

Our article does address each of the significant differences between the Federal Rules of Civil Procedure and the new Wisconsin rules. But it is noteworthy that several of the new rules follow one or more versions of the federal rules.

We hope these two articles provide the Wisconsin legal community with a deeper understanding of the new rules.

Robert L. Gegios
Ryan M. Billings
Melinda A. Bialzik
Kohner, Mann & Kailas S.C., Milwaukee

More on Changes to the Rules of Civil Procedure

In “Please, Not So Fast! The Haste to Alter Rules of Civil Procedure” (Wisconsin Lawyer, July/August 2018), authors Judge Eugene Gasiorkiewicz and William Gleisner said the Wisconsin Legislature’s recent enactment of significant, substantial changes to Wisconsin’s Rules of Civil Procedure are without precedent in process and speed. By proceeding without the input traditionally provided by lawyers, courts, and the public, they wrote, the legislature has unnecessarily hampered litigation in the state’s courts.

A reader weighed in.

Reader: Kudos to the authors for their article, “Please, Not So Fast! The Haste to Alter Rules of Civil Procedure.” However, my question is where in all of this was the Wisconsin Supreme Court? While Wis. Stat. section 751.12 preserves to the legislature the authority to enact rules relating to procedure, the statute also allocates to the supreme court the authority to promulgate rules regulating pleading, practice, and procedure in judicial proceedings.

The new rules represent a major change governing civil proceedings in Wisconsin. The supreme court should have stepped in to halt this fast-track process so that the bar and the public could be heard. This is especially so given that some of the provisions were enacted at the behest of special interest groups that have little or no interest in how civil proceedings should be conducted.

Yet in the face of all of this our supreme court remained silent and left the enactment of the new rules to the legislature, of which the vast majority are nonlawyers and who have special allegiance to these interest groups. The supreme court’s silence regarding these new rules is deafening and has the smell and feel of similar allegiance instead of serving the interests of the bar and the public.

Judge Neal Nettesheim (Ret.)
North Prairie