Wisconsin Civil Procedure: A Short History
At statehood in 1848, Wisconsin's civil procedure was an unorganized
agglomeration of rules developed in England, the American colonies and
postcolonial New York and New England from the 16th century onward. The
way in which discovery and trials were conducted depended heavily upon
the individual lawyers and judges involved in each case.
In the 1840s David D. Field of New York led a national campaign to
develop a single, unified American code of civil procedure. Wisconsin
was one of the first states to adopt the Field Code in 1856. The code
focused heavily on merging law and equity practice into one system and
on simplifying pleading rules, which before the code had been notorious
for encouraging prolixity and imposing harsh penalties for technical
mistakes. Early legislatures also pioneered the use of discovery tools
to expedite litigation such as depositions in 1849 and requests for
document production and admission of the genuineness of documents in
1856.
Sporadic efforts to liberalize discovery procedures and simplify
pleading and courtroom procedures continued throughout the late 19th
century. For example, as the volume of tort actions increased, mental
and physical examinations were allowed as part of discovery for the
first time in 1898.
Starting about 1905, bar leaders throughout the United States began a
concentrated effort to eliminate the "sporting theory of justice" once
and for all. The movement was led in Wisconsin by Chief Justice John
Winslow. The reformers' goal was to simplify pleading, discovery and
trial procedures still further so as to make the issues clear at the
beginning of the case, provide the parties to a lawsuit a full
opportunity to learn all the facts supporting both sides of the case
prior to trial and dispose of the case by summary judgment without trial
if appropriate. They achieved substantial success through the reforms
that the supreme court made in the 1930s, described in the main
article.
The national reform movement culminated in the enactment of the
Federal Rules of Civil Procedure in 1937. The Wisconsin bar felt that
the state's procedural rules were just as good as the new federal rules
and were similar enough that no change in state rules was necessary. But
national bar leaders and the U.S. Supreme Court continued to refine the
federal rules, and by the early 1970s many Wisconsin bar leaders felt
that state rules suffered in comparison. After lengthy discussion and
study, the Wisconsin code of civil procedure was reorganized and
reformed to correspond closely to the federal rules, and the Wisconsin
Supreme Court adopted the changes in 1976. The court has continued to
refine Wisconsin's rules in recent years, most notably in 1993 to
encourage early settlement discussions and resolution of disputes
outside the courts.
Wisconsin
Lawyer
