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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.
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