The Local Rules Quagmire

Traps in Making Claims Against Governments

Strong sentiments also emerged in the survey about modifying procedures for making claims against government entities. Of all respondents, 82 percent agreed that these procedures need simplification, compared to 86 percent who held that opinion in 1999. Average ratings this year for lawyers and judges/commissioners were close, at 5.5 and 5.3 (again, that's on a scale from 1 to 7, with 7 indicating "strongly agree").

Speaking from the lawyer's viewpoint, "the procedures simply have become too complex, too time-consuming, and a trap for the unwary," Bach says. "There's no reason why this area of the law could not be simplified."

He gets no argument from judges on the Bench-Bar Committee. Gallagher concurs that the procedures are complex, which results in extra burdens on the courts. "We're constantly being called on to determine whether a claim was filed on time, if it was served to the right people, and so on," he explains. "So there's litigation within litigation, and that eats up court time."

Gallagher adds that, in his view, uniformity of procedures is the issue more so than simplification. As the law now stands, different types of government entities have different requirements for similar types of claims. For example, starting an action on a highway matter against the state Department of Transportation is different from initiating an action against a municipality. "It's a minefield for practicing attorneys to make sure they do it right," Gallagher says.

David Hansher, a Milwaukee County circuit court judge, has witnessed that from another vantage point, from his days as an attorney for the city of Milwaukee. "The law is full of legal hoops lawyers have to jump through and little technicalities," Hansher observes. "But the aim of the law was not to give government entities technicalities to hide behind. I think that should be changed. I was surprised to see 82 percent [of respondents] agree. It's something I've thought about for years."

On a more pessimistic note, Hansher foresees slim chances for revising the statute. Government entities have strong lobbies to fight any effort to simplify procedures for filing claims against them. Winning such changes would be a tough uphill struggle in the Wisconsin Legislature, Hansher believes.

Calls for Court of Appeals Innovations