 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
es adopted under s. 751.12 and statutes relating to pleading, practice, and procedure." Wis. Stat. § 753.35. Most Wisconsin counties have adopted such rules; eleven have not. The local rule at issue in this case, Milwaukee County Circuit Court Local Rule 371, was presumably adopted pursuant to this authority.
A circuit court has wide discretion in enforcing local rules. Kustelski v. Taylor, 2003 WI App 194, , 266 Wis. 2d 940, 669 N.W.2d 780 (citing Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447, 531 N.W.2d 606 (Ct. App. 1995)). However, this discretion is not unlimited. The local rule may not conflict with a state statute. Geneva Nat'l Cmty. Assoc., Inc. v. Friedman, 228 Wis. 2d 572, 586-87 n.8, 598 N.W.2d 600 (Ct. App. 1999) (citing Cmty. Newspapers, Inc. v. City of West Allis, 158 Wis. 2d 28, 32-33, 461 N.W.2d 785 (Ct. App. 1990)). Similarly, the local rule may not conflict with the uniform judicial administrative rules promulgated by the supreme court. SCR 70.34 (1978). In some cases, local rules may even be preempted by common law doctrines. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 36, 563 N.W.2d 460 (1997) (citing Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962)).
Amid this array of authority, practitioners must remain cognizant of the occasionally significant variation between one county's local rules and another's. For example, in Milwaukee, as we have seen in this case, the jury fee must be paid within 30 days after the scheduling conference. Milwaukee Cty. Ct. R. 371. By contrast, in Sheboygan County, the jury fee must be paid at or before the scheduling conference. Sheboygan Cty. Ct. R. 206. In Waukesha County, the fee must be paid at or before the pre-trial conference. Waukesha Cty. Ct. R. 6.1. In Marinette County, the jury fee is payable at or before the scheduling or pre-trial conference, whichever comes first. Marinette Cty. Ct. R. 207. Many other local rules do not reference any timetable for payment of the jury fee, apparently leaving such decisions entirely up to the discretion of individual circuit judges.
When numerous circuit courts create local rules to augment a statewide rule, it is nearly inevitable that the local rules will conflict with each other. For example, prior to 1992, Wis. Stat. § 802.08(2) ("Summary judgment") read in part: "The [summary judgment] motion shall be served at least 20 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits." In practice, this rule proved to be unfair because the non-movant could serve opposing affidavits the day before the hearing, giving minimal notice and opportunity for the court and the movant to prepare. Because of this, "a plethora of local court rules resulted." Judicial Council Note, 1992, § 802.08, Stats. (citing Cmty. Newspapers, 158 Wis. 2d [at 32 n.3]). To provide a statewide remedy, this court acted by amending the rule to its current form: "Unless earlier times are specified in the scheduling order, the [summary judgment] motion shall be served at least 20 days before the time fixed for the hearing, and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing." Wis. Stat. § 802.08(2). The court made the change to "preclude such local rules and promote uniformity of practice." Judicial Council Note, 1992, § 802.08, Stats.
In my view, similar action is warranted here. Although the exact time set for payment of the jury fee may not be important, some reasonable "uniformity of practice" is. The court should consider a uniform rule to avoid allowing local rules governing payment of the jury fee to become a snare, trapping unwary litigants
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|