Vol. 71, No. 12,
December 1998
Bench Bar Committee
Mandatory Counterclaim Proposal
The State Bar Bench Bar Committee is tasked with making and evaluating
proposals to improve the administration of justice and submit recommendations
to the Board of Governors on the same. Based on responses given in a 1997 survey of attorneys and judges, the Bench Bar
Committee proposes amending the Wisconsin Rules of Civil Procedure to mandate
counterclaims in Wisconsin courts. After reviewing comments and working
with various State Bar sections to address concerns about the proposal,
the Bench Bar Committee may request a legislative position from the Board
of Governors to adopt the proposal. Please send comments by Jan. 20, 1999,
to: Ms. Pat Morgan, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Proposed Section 802.07 Counterclaim and Cross-Claim.
(1)(a) MANDATORY COUNTERCLAIM. A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim and does not require
for its adjudication the presence of third parties over whom the court cannot
acquire jurisdiction. The pleader need not state the claim if (1) at the
time the action was commenced that the claim was the subject of another
pending action, or (2) the opposing party brought suit upon the claim by
attachment or other process by which the court did not acquire jurisdiction
to render a personal judgment on that claim, and the pleader is not stating
any counterclaim under this section.
(b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim any
claim against an opposing party not arising out of the transaction or occurrence
that is the subject matter of the opposing party's claim.
[Repeal remainder of (1) except as provided in (c)]
(c) SCOPE OF COUNTERCLAIM. A counterclaim may or may not diminish or
defeat the recovery sought by the opposing party. Except as provided
by s. 802.02(1m), the counterclaim may claim relief
exceeding in amount or different in kind from that sought in the pleading
of the opposing party.
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