New civil court local rules proposed in Milwaukee County

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For the first time since the late 1980s, the local rules for Milwaukee County Circuit Court are undergoing a major revision.

On June 25, a variety of rule changes were tentatively approved, with final action on the amendments scheduled for July 8, at 12:15 p.m., in Room 609 of the courthouse.

In an interview, Judge Richard J. Sankovitz summarized some of the major changes up for consideration.

Good Faith

The most significant change is Proposed Rule 1.15, which would require, before a motion is filed, that the movant make a good faith effort to resolve the issues or differences giving rise to the motion.

Sankovitz noted that such a rule has already been in effect in family court and has worked well.

He said that, all too frequently in civil court, a court sets aside time for a hearing, only to have the parties resolve it once they appear in court.

“It is part of the culture in family court to work things out. We don’t have that culture in civil court, and we want to change that,” Sankovitz said.

Non-Dispositive Motions

Proposed Rule 3.11, titled “Non-Dispositive Motions,” will build in a longer briefing schedule and more time for the court to review the briefs.

Under the new rule, all motions and supporting papers shall be filed not less than 15 days before the hearing date; current Rule 365A specifies only 10 days.

Papers in opposition shall be filed no later than seven calendar days before the hearing (five days under the current rule).

Summary Judgment

Rule 3.15 would govern summary judgment motions, and would reduce the page limit for briefs in support of, and opposition to, summary judgment, from 30 pages to 25. The limit for the movant’s reply brief would remain at 10 pages.

In addition, a motion for summary judgment would have to be filed not less than 40 days before the hearing date; the respondent’s brief would have to be filed not less than 25 days before the hearing; and the reply brief, 15 days before the hearing.

Also, summary judgment briefs would be required to state all material undisputed facts which support judgment, with specific references to the record.

Commentary to the proposed rule states that it is designed to emulate federal rules, but adds, “the rules are not intended to create the extensive papering and motion practice that has built up around federal local rules.”

Jury Fees

Rule 3.9 would provide that payment of the jury fee by any party preserves the right to a jury for all parties. Payment must be made within 30 days after the issuance of the scheduling order.

Under the current Rule 371, some courts have interpreted the rule to permit payment by the adverse party, if the demanding party failed to pay, up until the first day of trial.

Business Court

The Business Court rules would be repealed in their entirety. Judge Sankovitz said the rules are rarely invoked, and usually when they are, it is in error, by a party mistaken about the applicable rules. Sankovitz also said courts already have broad authority to tailor discovery and schedule proceedings if parties agree to expedite them.

Motions on the Pleadings

Rule 3.14, entitled “Motions to Dismiss or for Judgment on the Pleadings,” which has no analogue in the current rules, would require that such motions be filed not less than 40 days before the hearing date.

Such motions are currently governed by Rule 365A, which specifies 10 days.

However, Sankovitz said this amendment is expected to receive scrutiny at the hearing, because of objections from creditors’ attorneys.

In many cases, he noted, the defendant in a collection action makes an appearance, but has no real defense to a motion for judgment on the pleadings. Thus, adoption of the rule as is would merely hinder collection in such cases, without any benefit.

Discovery

Rule 3.21, as proposed, provides that a court cannot compel a party to respond to a discovery request that is served less than 30 days before a discovery deadline set forth in a scheduling order.

However, Sankovitz said this rule may be amended, to explicitly state, “except for good cause.”

He said an exception for good cause is generally applicable to all the rules, but is of particular concern with respect to this rule, because in practice, parties frequently continue with discovery after the deadline.

Minor Settlements

Proposed Rule 3.29 would require that, before a minor settlement is approved, no guardian may be relieved of responsibility until he files confirmation that the funds have been deposited or invested as provided in the court’s order.

The rule would also adopt a presumption that the contingency fee shall not exceed 25 percent. The presumption would be rebuttable in “extraordinary circumstances.”

According to Sankovitz, the proposed rule merely makes explicit previously unwritten rules of thumb.

Hours of Operation

Finally, Proposed Rule 1.7 would require that hearings stop at 5 p.m., except with permission of the Chief Judge.

Sankovitz explained that it is very costly in terms of overtime and security, when a court remains open after 5 p.m.

In addition, the last Freeway Flyer bus leaves at 5:20 p.m. Sankovitz said that, while the court system tries to encourage jurors to take the bus, it then makes it inconvenient for them by remaining open past the last bus.

Also, in State v. Vanness, 2007 WI App 195, 304 Wis.2d 692, 738 N.W.2d 154, the Court of Appeals held that a defendant was denied his right to a public trial when his trial continued after the courthouse had been locked.

Although the opinion applies only to criminal cases, Sankovitz stated that it was the final straw for stopping all hearings at 5 p.m.

The tentatively approved rules can be reviewed here (PDF).