Commencing the Action


I.         Researching, Writing and Filing the Complaint.

            A.        Short and Plain Statement.

            The Wisconsin Statutes require that a complaint contain “a short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.”  Wis. Stat. § 802.02(1)(a).  

            Wisconsin is a “notice pleading” state.  Hertlein v. Huchthausen, 113 Wis. 2d 67, 71, 393 N.W.2d 299 (Ct. App. 1986).  This means that a pleading must simply give the defendant “fair notice” of the claim and the grounds upon which is rests.  Id.  A plaintiff may plead generally and rely on discovery to uncover the precise factual basis for his or her claims.  Id.  

            The trick is to include factual allegations specific enough to meet the elements of your claim without getting too bogged down in facts.  For instance, in a negligence action based on an automobile collision, you will want to allege:  (1) that a collision occurred; (2) that the defendant was negligent in causing the collision; (3) that as a result of the collision, your client was injured; (4) that the defendant’s negligence was a substantial factor in causing your client’s injuries; and (5) as a result of the defendant’s negligence, your client suffered damages.  

You do not need to plead that the defendant was driving 72 miles per hour at the time of the collision, or that your client was transported from the scene in an ambulance, or that your client had to have two surgeries after the collision.  Those are facts that can be fleshed out during discovery.

            B.        Reasonable Inquiry into Facts and Law.

            The Wisconsin Statutes require that by signing any pleading – including a complaint – the attorney is certifying that:

(1)       The paper is not being presented for any improper purpose (such as to harass);

(2)       The claims, defenses and other legal contentions stated in the paper are warranted by existing law or the nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; and

(3)       The allegations and other factual contentions (or denials thereof) stated in the paper have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.  Wis. Stat. § 802.05(2).  

A violation of this section may result in sanctions against the client and/or attorney.  Wis. Stat. § 802.05(3).

For purposes of filing a complaint, this statute requires an attorney to make a “reasonable inquiry” into the facts and law.  Wis. Stat. § 802.05(2); Jandrt ex rel. Brueggeman v. Jerome Foods, Inc., 227 Wis. 2d 531, 597 N.W.2d 744.  A determination of how much prefiling investigation should have been done depends on things such as the issues involved and the stakes of the case, and is a discretionary decision to be made by the court.  Id. at ¶ 30.  The court is to apply an objective standard of whether a reasonable attorney would or should have known that the claim was not grounded in both facts and law.  Id. at ¶ 32.

In applying the objective standard when determining whether an attorney made a reasonable inquiry into the facts, the court should consider:  

(1)       Whether the attorney had sufficient time for investigation;

(2)       The extent to which the attorney had to rely on his or her client for the facts;

(3)       Whether the case was accepted from another attorney;

(4)       The complexity of the facts and the attorney’s ability to do a pre-filing investigation; and

(5)       Whether discovery will assist in making the determination.  Id.

In applying the objective standard when determining whether an attorney made a reasonable inquiry into the law, the court should consider:  

(1)       The amount of time the attorney had to prepare the document and research the law;

(2)       Whether the document contains a plausible view of the law;

(3)       The complexity of the legal questions involved; and

(4)       Whether the document is a good faith effort to extend or modify the law.  Id.  

An attorney cannot rely solely on the opinion or investigation of a referring attorney.  Id. at ¶ 40.  An attorney receiving a case from another attorney may place some reliance on that attorney’s investigation, but the filing attorney must acquire knowledge of the fact sufficient to make his or her own determination.  Id.

            In addition, an attorney cannot rely solely on the facts provided by the client.  Id. at ¶ 41.  Rather, an attorney may rely on a client’s factual allegations only to the extent that it is reasonable to do so.  If the client’s knowledge is based on hearsay, then the attorney should check the client’s account for accuracy.  Id.  For example, in an injury action, if a client relays a doctor’s opinion to you, you should check with the doctor prior to filing the lawsuit to determine whether the client’s restatement of the doctor’s opinion is accurate.  Id.

            C.        The Importance of Timing.

            First and foremost, you should make sure that the complaint is being filed within the applicable statute of limitations.  If you are mailing the summons and complaint to the courthouse for filing, allow enough time to make sure it will be received and processed.  In high-volume courts, it may take several days before your summons and complaint reaches the proper person.

            Once the summons and complaint is filed, your next priority is to have it served on all defendants on time.  An authenticated copy of the summons and complaint must be served upon the defendant(s) within 90 days of the summons and complaint being filed with the court.  Wis. Stat. § 801.02(1).  

            You must first attempt to have the summons and complaint personally served on the defendant(s).  Wis. Stat. § 801.11(1)(a).  This is typically accomplished by hiring a private process server or through the local sheriff’s department.  If with reasonable diligence the defendant cannot be personally served, then a copy of the summons and complaint may be left with a competent family member residing at the defendant’s residence who is at least 14 years of age, or with a competent adult residing at the defendant’s residence.  Wis. Stat. § 801.11(1)(b).

            If with reasonable diligence the defendant cannot be served by either of the methods described above, then service may be made by publication of the summons of a class 3 notice under ch. 985 and by mailing.  Wis. Stat. § 801.11(1)(c).  A class 3 notice must be published once per week for three consecutive weeks.  A copy of the summons and complaint must also be mailed to the defendant’s last known mailing address, unless the mailing address is unknown.

            The summons must be published in a newspaper likely to give notice to the defendant.  This is typically the local city or county newspaper.  Some counties have designated which newspaper legal notices should be published in, so check with the clerk of court before publishing.  For example, in Milwaukee, the designated newspaper for publishing legal notices is The Daily Reporter.  Be sure to allow yourself enough time, as some newspapers are not published every day, and it will usually take a few days before your notice goes to print.  A summons served by publication is deemed served on the first day of required publication.  Wis. Stat. § 801.13(2).  

II.       Determining Jurisdiction and Venue.

            A.        Jurisdiction.

            Before filing your complaint, you must determine whether the case can be brought in the state court system.  The court with which you intend to file the action must have both subject matter jurisdiction and personal jurisdiction over the matter.  “Jurisdiction” refers to the court’s power to decide a case.

            “Subject-matter jurisdiction” refers to the power of a court to decide certain types of actions.  The Wisconsin courts have very broad subject matter jurisdiction, conferred by the Wisconsin Constitution.  As stated in Art. VII, Sec. 8 of the Wisconsin Constitution:

Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.”

Thus, for the most part, the Wisconsin courts have subject matter jurisdiction over any legal matter or dispute arising in the State of Wisconsin.

            “Personal jurisdiction” refers to the power of a court to bring a party before it and to render a binding judgment against that party.  The issues surrounding personal jurisdiction involve two inquiries:

(1)       Can the defendant constitutionally be subject to the court’s jurisdiction; and

(2)       Was service of process on the defendant proper?

At the filing stage, you only need to make sure the first requirement is met.  Then, as long as you properly have the defendant served with the summons and complaint, the court will have personal jurisdiction over the defendant.

            The most common criteria for conferring personal jurisdiction to the Wisconsin courts are that, when the action is commenced, the defendant is:       

            (1)       A natural person present in this state when served;

            (2)       A natural person domiciled in this state;

            (3)       A domestic corporation or limited liability company; or

(4)       Engaged in substantial and not isolated activities within this state.  Wis. Stat. § 801.05.  

Various other criteria for personal jurisdiction exist, so be sure to check Wis. Stat. § 801.05 if you are unsure about jurisdiction.

            B.        Venue.

            Once you determine that the Wisconsin state courts have jurisdiction over the case you are filing, you must then determine the proper venue.  Venue is different than jurisdiction, and literally refers to the court that you will file the complaint with.  

Generally, venue in a civil action shall be:

            (1)       In the county where the claim arose;

(2)       In the county where the real or tangible personal property which is the subject of the claim is situated:

(3)       In the county where a defendant resides or does substantial business; or

(4)       If the preceding provisions do not apply, in any county designated by the plaintiff.  Wis. Stat. § 801.50(2).  

            In some instances, the venue is straightforward.  For example, an action for personal injuries arising out of a car accident could be brought in the county where collision occurred or in the county where the defendant lives.

            In other instances, however, the determination of “where the claim arose” is not as straightforward.  For example, a breach of contract action for failure to make payment under a contract arises in the county where the payment was supposed to be made and the default occurred.  State ex rel. Connor Lumber & Land Co. v. Circuit Court for Milwaukee County, 213 Wis. 141, 250 N.W. 753 (1933).  

III.      What to Include in the Prayer for Relief.

            Pursuant to Wis. Stat. § 802.02(1)(b), the complaint must contain “a demand for judgment for the relief the pleader seeks.”  But, what does this mean?  The type of relief that you demand in the complaint will largely depend on the type of action brought.

            For an action where you know the specific dollar amount sought, such as an action for breach of contract or account stated, you will want to include the exact dollar amount.  This is particularly helpful in a case where you anticipate filing for default judgment.  

            On the other hand, with respect to a tort claim seeking the recovery of money, the statutes specifically provide that you may not specify the dollar amount that you seek.  Wis. Stat. § 802.02(1m)(a).  Thus, your demand for relief in a tort claim should state something like “the Plaintiff demands judgment against the Defendant in an amount unspecified pursuant to Wisconsin law.”

            You will also want to include a demand for relief for statutory attorney’s fees and costs (or actual attorney’s fees and costs, if a statute or contract so provides), and pre- and post-judgment interest.  To cover your bases, also include a demand for “any such further relief that the Court deems proper.”

IV.      Common Questions About Summonses and Appearances.

            Questions often arise regarding what form of summons to use, as well as the time for response that should be set forth in the summons.  The safest bet is to use the exact sample summons language set forth in the statutes.  Wis. Stat. § 801.095 contains sample language that meets all of the requirements for summonses as set forth in Wis. Stat. § 801.09.  

            The form of the summons depends on the type of service and whether a complaint is served with the summons.  The most common type of summons is where the summons and complaint are both personally served on the defendant(s).  Therefore, when filing a complaint one should also file a summons in the form proscribed by Wis. Stat. § 801.095(1).

            A common mistake made by attorneys is listing the incorrect time period for answering in the summons.  2005 Wis. Act 442, which became effective October 1, 2006, changed the time period for filing a responsive pleading.  Prior to October 1, 2006, most complaints had to be answered within 45 days.  Now, most complaints must be answered within 20 days.  The 45-day time limit now applies only where a defendant in the action is an insurance company, where any cause of action is founded in tort, or where a defendant is the state or an officer, agent or employee of the state.  

            A special situation arises when personal service is not accomplished and the summons must therefore be published in a newspaper.  The summons that is published in the newspaper need not be copied word-for-word from the summons that was originally filed with the complaint.  Rather, the form set out in Wis. Stat. § 801.095(4) should be utilized.  The most notable change is that when service is accomplished through publication, the defendant has 40 days to request a copy of the complaint.

V.        Scheduling Orders and Meeting Deadlines.

            A.        Scheduling Conference Statements.

            A number of circuit courts in Wisconsin require parties to file a scheduling conference statement prior to attending the scheduling conference.  This document is intended to provide the court with a brief outline of the factual allegations and issues, the discovery that has been or needs to be conducted, and what dates need to be set in the scheduling order.

            While on its face the scheduling conference statement seems like just a simple requirement to fulfill, it actually provides you with an opportunity to advocate for your client.  This is often the first thing a judge reads in a case, so use this opportunity to put your client’s best foot forward and present the judge with a factual background that presents your case in the best light possible.

            B.        The Scheduling  Conference.

            Prior to attending the scheduling conference, spend some time thinking about what discovery you need to conduct and how much time you will need to meet other anticipated deadlines.  How many depositions will need to be taken?  How long will it take you to find an expert?  It will be much easier to ask the judge for time at the scheduling conference than it will be later after a trial date has been set.

            C.        Meeting Deadlines.

            Every lawyer has situations arise where it becomes apparent that a deadline cannot be met.  If you have a good relationship with opposing counsel and the proposed extension will not affect other deadlines or the trial date, this can usually be handled with an agreement between counsel.  Just make sure to either get a signed stipulation or to confirm the agreement in writing to avoid any problems later on.

            If you are working with a difficult attorney or if the failure to meet the deadline will affect the trial date, you will likely have to file a motion requesting that the judge amend the scheduling order.  The decision of whether to amend a scheduling order rests in the court’s discretion.  Schneller v. St. Mary’s Hospital Medical Center, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).  Typically, a court will extend a scheduled deadline if the party requesting the extension can show cause for the failure to meet the deadline or if it is in the interests of justice for the deadline to be extended.  Id. at 308.  

            Since the court has no requirement to grant extra time, this is a very scary undertaking, especially where the court’s refusal to grant additional time could result in dire consequences (i.e., in a situation where you cannot meet your deadline for naming an expert witness, and without an expert you cannot meet your burden of proof).  Therefore, you should make every effort possible to meet the scheduling order deadlines without needing to request additional time.

            When reaching agreements with opposing counsel on scheduling order deadlines, you should also be familiar with how the judge handles these situations.  Some judges prefer counsel to work out scheduling issues amongst themselves without involving the court.  Other judges view the scheduling order the same as any other order and require that a party requesting an extension formally move the court.  When in doubt, you can call the judge’s clerk and ask.