Godfrey & Kahn Updates
Your Time to Answer That Complaint Just Got Shorter
Recent legislation has more than halved a defendant’s time to respond to a new lawsuitJuly 26, 2006
In most litigation circumstances, the first deadline that you face as a defendant is to respond to the plaintiff’s complaint. Failure to respond by the deadline often results in default judgment. In Wisconsin state court, the response deadline is 45 days from the date of service. Effective October 1, 2006, the Wisconsin legislature significantly shortened that response time to 20 days for most defendants. Wisconsin businesses and entrepreneurs should recognize this important change and adjust their internal practices accordingly.
Since 1998, if you were sued in Wisconsin state court, you had 45 days from the date you were served with the summons and complaint to file and serve a formal response. New legislation, 2005 Wisconsin Act 442, shortens that period to 20 days for most defendants. Exceptions to the new law exist, leaving a 45-day response period (a) for certain defendants such as state officers, agents, employees and agencies, as well as insurance companies, and (b) for certain claims sounding in tort (non-contract-related claims such as negligence, trespass, or fraud). Defendants not served personally, but by publication, have 40 days to respond to a complaint.
This jumbled legislation significantly shortens your turnaround time in handling legal process in many cases. The summons and complaint now must be received, recognized, routed, referred to counsel, investigated, and responded to in less than half the time as before. You can no longer afford for a summons and complaint to sit for a week, or even days, in an employee’s inbox or desk drawer before getting it to your lawyer.
The period between the service of the complaint and the deadline to respond is an important period for your lawyers. Critical factual investigations will now be compressed to fit the revised time period. If moving the case from state court to federal court is an option, that strategic decision must now be made earlier. Moreover, if instead of answering a complaint a basis exists to dismiss it, that motion and legal briefing must be drafted that much more quickly.
Once a process server hands over the summons and complaint, time is of the essence. The following tips will help you to maximize this time:
Establish procedures for handling service of legal papers. Establish a written policy informing your employees of what to do when a summons and complaint are served. This procedure also should establish who is authorized to accept service on your behalf, and where to direct the summons and complaint immediately upon receipt.
Give your attorneys an early warning. The approaching storm of many business disputes can be seen on the horizon long before a lawsuit is actually filed. When issues arise that look like they could wind up in court, call your attorneys. The extra lead time will allow your attorneys to get up to speed and maximize the more limited time allotted for a response. That extra time also will allow your attorneys to confirm that in the event of a lawsuit, they would have no conflict in representing you against your opponent.
Forward materials the same day. The day papers are served, forward them to your attorneys by fax or email. Once you have spoken with your attorney to determine that he or she can represent you, be prepared to forward key documents contracts, correspondence, etc.—that will assist in evaluating your defense and possible counterclaims.
Recent legislation has more than halved a defendant’s time to respond to a new lawsuit. You will have little margin for error in coordinating a timely response. Thinking about these issues before the process server arrives at your door will improve your opportunity to successfully defend the case.
If you have any questions or would like additional information, please contact Jonathan Ingrisano (414-287-9611 or email@example.com) or any other member of the Godfrey & Kahn Litigation Practice Group.