Wisconsin Lawyer
Vol. 78, No. 9, September 2005

Supreme Court Orders

• Appellate Procedures
• Alternative Dispute Resolution

Appellate Procedures

In the matter of Proposed Amendment to Wis. Stat. Rule 809.19 (Briefs and Appendix) relating to the certification of compliance with Wis. Stat. Rule 809.19(2)

Order 04-11

On Nov. 22, 2004, the Chief Judge of the Court of Appeals, Hon. Thomas Cane, filed a petition seeking to amend Wis. Stat. Rule 809.19 relating to the certification of compliance with Wis. Stat. Rule 809.19(2).

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 25, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing. Dated at Madison, Wis., this 19th day of August, 2005.

By the court:
Cornelia G. Clark, Clerk of Supreme Court

Petition

The Court of Appeals respectfully petitions the Supreme Court to create Wis. Stat. Rule 809.19(2)(a) as follows:

(2) (a) Certification. An appellant's counsel shall append to the appendix a signed certification that the appendix meets the content requirements of s. 809.19(2) in the following form:

I hereby certify that filed with this brief, either as a separate document or as a part of this brief, is an appendix that complies with s. 809.19(2) and that contains: (1) a table of contents; (2) relevant trial court record entries; (3) the findings or opinion of the trial court; and (4) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court's reasoning regarding those issues.

I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names or persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

Signed: .........

Signature: .........

Note: As the number of appeals has increased, the court's reliance on appendices during the decision-making process has increased. The Court of Appeals requests that Wis. Stat. Rule 809.19(2)(a) be created to require that appellant's counsel certify compliance with Wis. Stat. Rule 809.19(2) that requires an appellant's brief include an appendix and sets forth the contents of the appendix. The Court of Appeals believes that a certification requirement, similar to the form and length certification required by Wis. Stat. Rule 809.19(8)(d), will result in increased compliance with Wis. Stat. Rule 809.19(2) and improve the quality of appendices that are filed with the court. Therefore, the Wisconsin Court of Appeals respectfully requests that the Supreme Court adopt the proposed amendment to Wis. Stat. Rule 809.19(2), Rules of Appellate Procedure.

This petition is directed to the Supreme Court's rule-making authority under Wis. Const., art. VII, sec. 3(1) and Wis. Stat. § 751.12.

Thomas Cane, Chief Judge
Wisconsin Court of Appeals

Alternative Dispute Resolution

In the matter of the Amendment of Wis. Stat. § 807.05 (Stipulations) and Creation of Wis. Stat. § 802.12(5) (Relating to Memorializing Settlements Reached By Way of Alternative Dispute Resolution)

Order 05-05

On Feb. 16, 2005, Attorney Donald Leo Bach filed a petition seeking to amend Wis. Stat. § 807.05 and create Wis. Stat. § 802.12(5).

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 25, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 19th day of August, 2005.

By the court:
Cornelia G. Clark, Clerk of Supreme Court

Petition

Petitioner Attorney Donald Leo Bach of DeForest respectfully petitions the Supreme Court of Wisconsin for an Order, pursuant to Wis. Stat. § 751.12 amending Wis. Stat. § 807.05 and creating Wis. Stat. § 802.12(5) as follows:

Amendment to Wis. Stat. § 807.05

No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless (1) made in court or during a proceeding conducted under s. 807.13 or s. 967.08, and entered into the minutes or recorded by the reporter, (2) made during a deposition and recorded by a stenographer or on videotape, or (3) made in writing and subscribed by the party to be bound thereby or the party's attorney.

Creation of Wis. Stat. § 802.12(5)

(5) Settlement Finalization. Any settlement reached as a result of the use of an alternative dispute resolution method shall be reduced to writing, dated, and signed by each settling party prior to concluding the dispute resolution process.

Rationale for the Amendment and Creation of Wis. Stat. §§ 807.05 and 802.12(5) Respectively: It is not unusual during a deposition for a party to start a line of questioning on a subject and the counsel for the other party to object or indicate that such line of questions is "irrelevant" or beyond the scope of discovery because the party is not making any claim or taking a position that the questioner seeks to inquire about.

A not uncommon deposition colloquy will go as follows:

Defendant's counsel: "When did you first start having back pain?"

Plaintiff's counsel: "Objection. We are not making any claim for back pain in this case."

Defendant's counsel: "Just so I have this clear, you're stipulating that you are not making any claim for back pain in this case?"

Plaintiff's counsel: "That's correct."

Defendant's counsel: "Okay, counsel, I'm going to rely on that stipulation on the record. Therefore I will refrain from asking the series of questions I had prepared in regard to back pain."

* * *

Defense counsel: "Are you maintaining a permit was needed for Doe Company to construct this boiler?"

Government counsel: "Objection. We are not claiming a permit was needed for any boiler; we are claiming that the installation of the process dryer needed a permit."

Defense counsel: "So will you stipulate that you will not claim at the trial that a permit was needed for the boiler?"

Government counsel: "Yes, we will stipulate that a permit was not needed."

* * *

One would rightfully expect that these stipulations on the record at a deposition are binding and enforceable. Unfortunately, there is a statute that provides a harsh, illogical and unexpected surprise - unless the parties set forth their agreements and stipulations in a separate writing signed by the party (or party's attorney) who is to be bound by the same, they are not binding and the stipulating party can simply unilaterally back out of his or her agreement at their option.

The statute is Wis. Stat. § 807.05. It provides as follows:

"No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under s. 807.13 or s. 967.08, and entered into the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney."

In Bertram v. Kilian, 133 Wis. 2d 202, 394 N.W.2d 773 (Wis. App. 1986), the Court of Appeals ruled that a stipulation made on the record during a deposition was not enforceable because it was not reduced to writing:

"The reporter recorded the stipulation on the record during a deposition in a law office, not in court. The stipulation was not reduced to a writing subscribed by Debra, the party to be bound, or by her attorney. Because the requirements of sec. 807.05, Stats., were not met, the stipulation is unenforceable."

The effect of the statute, and of such rulings, is to hold that attorneys, and/or parties, can make agreements or stipulations on the record in a deposition upon which the other party expects to rely, and which is recorded word for word by the court reporter, and yet have the ability to back out of the agreement or stipulation. This result is unfair and makes no sense. If the concern underlying the statute is that oral agreements are susceptible to the "he said, she said" syndrome since the matter was not written down or put in a recordable form, then that concern is easily met when the stipulation or agreement is put on the record at a deposition. After all, all other words spoken at a deposition on the record are considered to have such substantial reliability as to allow them to be used directly as evidence, for impeachment purposes, or even for a basis for a perjury prosecution.

The proposed amendment to Wis. Stat. § 807.05 makes representations on the record in a deposition binding and enforceable.

Similarly, based on the wording of Wis. Stat. § 807.05, in Laska v. Laska, 255 Wis. 2d 823, 646 N.W.2d 393 (Ct. App. 2002), the Court of Appeals ruled that even an agreement reached as a result of mediation was not enforceable because the agreement was not signed, despite the fact that it was memorialized by the mediator and sent to both parties:

"Wisconsin Stat. § 807.05 is an exception to the usual rule that oral contracts are binding. Adelmeyer v. WEPCO, 135 Wis. 2d 367, 400 N.W.2d 473 (Ct. App. 1986). It `seeks to prevent disputes and uncertainties as to what was agreed upon.' Id. at 372, 400 N.W.2d 473 (citation omitted). The statute adds requirements for enforceability of an otherwise valid oral agreement when the agreement is reached in the course of a claim that is in the process of adjudication. Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 67, 452 N.W.2d 360 (1990). `An oral contract reached by stipulation in the course of court proceedings is unenforceable unless formalized in the way required by sec. 807.05.' Id. at 67-68, 452, N.W.2d 360."

The creation of Wis. Stat. § 802.12(5) should solve the problem of "backing out" of an agreed-to settlement, as well as resolving disputes and uncertainties as to what was agreed upon.

WHEREFORE, for the above reasons, Petitioner requests the Supreme Court of Wisconsin adopt the respective amendment and creation of the statutes as indicated above.

Donald Leo Bach
DeForest

Wisconsin Lawyer