The doctrine that pleadings should be deemed amended to conform to the evidence only applies when evidence related to the issue has been presented at trial. At the pleadings stage, the applicable statute is s. 802.02 (1). Soderlund v. Zibolski, 2016 WI App 6
, 366 Wis. 2d 579
, 874 N.W.2d 561
Calendar practice. 802.10(1)
This section applies to all actions and special proceedings except appeals taken to circuit court; actions seeking the remedy available by certiorari, habeas corpus, mandamus, prohibition, and quo warranto; actions in which all defendants are in default; provisional remedies; and actions under ss. 49.90
and s. 66.0114
and chs. 48
, and proceedings under chs. 851
(3) Scheduling and planning.
Except in categories of actions and special proceedings exempted under sub. (1)
, the circuit court may enter a scheduling order on the court's own motion or on the motion of a party. The order shall be entered after the court consults with the attorneys for the parties and any unrepresented party. The scheduling order may address any of the following:
The time, not more than 30 days after entry of the order, to determine the mode of trial, including a demand for a jury trial and payment of fees under s. 814.61 (4)
The limitation, control and scheduling of depositions and discovery, including the identification and disclosures of expert witnesses, the limitation of the number of expert witnesses and the exchange of the names of expert witnesses.
The dates for conferences before trial, for a final pretrial conference and for trial.
The appropriateness and timing of summary judgment adjudication under s. 802.08
The advisability of ordering the parties to attempt settlement under s. 802.12
The need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions or unusual proof problems.
The need for discovery of electronically stored information.
Any other matters appropriate to the circumstances of the case, including the matters under sub. (5) (a)
(5) Pretrial conference.
At a pretrial conference, the court may consider any matter that facilitates the just, speedy and inexpensive disposition of the action, including the matters under pars. (a)
and sub. (3) (a)
. At a pretrial conference, the court may consider and take appropriate action with respect to all of the following:
The formulation and simplification of the issues.
The elimination of frivolous claims or defenses.
The possibility of obtaining party admissions or stipulations that will avoid unnecessary proof.
Any pretrial rulings on the admissibility of evidence, including limitations on the use of expert testimony under s. 907.02
The identification of witnesses, exhibits and tangible demonstrative evidence.
The need and schedule for filing and exchanging pretrial briefs.
The dates for further conferences and for trial.
(6) Authority of participants.
An attorney for each party participating in any pretrial conference shall have the authority to enter stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. The court may require that a party or the party's representative be present or reasonably available by telephone to consider possible settlement of the dispute.
Sup. Ct. Order, 67 Wis. 2d 585, 634 (1975); 1975 c. 218
; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1979 c. 32
s. 92 (4)
; 1979 c. 89
; 1981 c. 289
; 1985 a. 29
s. 3202 (23)
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 486
; Sup. Ct. Order No. 95-04
, 191 Wis. 2d xxi (1995); 1999 a. 150
; 2001 a. 30
; 2005 a. 387
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11; 2011 a. 2
Judicial Council Note, 2010: Sub. (3) has been amended to encourage courts to be more active in managing electronic discovery. Pursuant to Wis. Stat. § 805.06, the court also may appoint a referee to report on complex or expensive discovery issues, including those involving electronically stored information. [Re Order effective Jan. 1, 2011]
The trial court properly granted default judgment against a party failing to appear at a scheduling conference, but the damage amount was not supported by the record. Gaertner v. 880 Corp. 131 Wis. 2d 492
, 389 N.W.2d 59
(Ct. App. 1986).
Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1
, 578 N.W.2d 633
The scheduling questionnaire used by the circuit court in this case was sufficient to satisfy sub. (3), 2005 stats. The form was a convenient means to ascertain important scheduling information. Although the form consisted of a single sheet, it addressed many of the basic scheduling questions faced by a circuit court attempting to accommodate the potentially complex timing needs of several parties and their counsel. Hefty v. Strickhouser, 2008 WI 96
, 312 Wis. 2d 530
, 752 N.W.2d 820
The excusable neglect standard set forth in s. 801.15 (2) (a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, this section provides the applicable standards and procedures courts apply to such motions. Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42
, 317 Wis. 2d 460
, 767 N.W.2d 272
A party cannot unilaterally extend the deadline to abide by a scheduling order simply by stating that it reserves the right to do so. 260 North 12th Street, LLC v. Department of Transportation, 2010 WI App 138
, 329 Wis. 2d 748
, 792 N.W.2d 572
Alternative dispute resolution. 802.12(1)(a)
“Binding arbitration" means a dispute resolution process that meets all of the following conditions:
A neutral 3rd person is given the authority to render a decision that is legally binding.
It is used only with the consent of all of the parties.
A contract or the neutral 3rd person determines the applicability of the rules of evidence.
“Direct negotiation" means a dispute resolution process that involves an exchange of offers and counteroffers by the parties or a discussion of the strengths and weaknesses or the merits of the parties' positions, without the use of a 3rd person.
“Early neutral evaluation" means a dispute resolution process in which a neutral 3rd person evaluates brief written and oral presentations early in the litigation and provides an initial appraisal of the merits of the case with suggestions for conducting discovery and obtaining legal rulings to resolve the case as efficiently as possible. If all of the parties agree, the neutral 3rd person may assist in settlement negotiations.
“Focus group" means a dispute resolution process in which a panel of citizens selected in a manner agreed upon by all of the parties receives abbreviated presentations from the parties, deliberates, renders an advisory opinion about how the dispute should be resolved and discusses the opinion with the parties.
“Mediation" means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.
“Mini-trial" means a dispute resolution process that consists of presentations by the parties to a panel of persons selected and authorized by all of the parties to negotiate a settlement of the dispute that, after the presentations, considers the legal and factual issues and attempts to negotiate a settlement. Mini-trials may include a neutral advisor with relevant expertise to facilitate the process, who may express opinions on the issues.
“Moderated settlement conference" means a dispute resolution process in which settlement conferences are conducted by one or more neutral 3rd persons who receive brief presentations by the parties in order to facilitate settlement negotiations and who may render an advisory opinion in aid of negotiation.
“Nonbinding arbitration" means a dispute resolution process in which a neutral 3rd person is given the authority to render a nonbinding decision as a basis for subsequent negotiation between the parties after the parties present evidence and examine witnesses under the rules of evidence agreed to by the parties or determined by the neutral 3rd person.
“Settlement alternative" means any of the following: binding arbitration, direct negotiation, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.
“Summary jury trial" means a dispute resolution process that meets all of the following conditions:
Attorneys make abbreviated presentations to a small jury selected from the regular jury list.
A judge presides over the summary jury trial and determines the applicability of the rules of evidence.
The parties may discuss the jury's advisory verdict with the jury.
The jury's assessment of the case may be used in subsequent negotiations.
A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference.
The parties shall inform the judge of the settlement alternative they select and the person they select to provide the settlement alternative. If the parties cannot agree on a settlement alternative, the judge shall specify the least costly settlement alternative that the judge believes is likely to bring the parties together in settlement, except that unless all of the parties consent, the judge may not order the parties to attempt settlement through binding arbitration, nonbinding arbitration or summary jury trial or through more than one of the following: binding arbitration, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.
If the parties cannot agree on a person to provide the settlement alternative, the judge may appoint any person who the judge believes has the ability and skills necessary to bring the parties together in settlement.
If the parties cannot agree regarding the payment of a provider of a settlement alternative, the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative.
(3) Actions affecting the family.
In actions affecting the family under ch. 767
, all of the following apply:
All settlement alternatives are available except focus group, mini-trial and summary jury trial.
If a guardian ad litem has been appointed, he or she shall be a party to any settlement alternative regarding custody, physical placement, visitation rights, support or other interests of the ward.
If the parties agree to binding arbitration, the court shall, subject to ss. 788.10
, confirm the arbitrator's award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following:
The parties, including any guardian ad litem for their child, may agree to resolve any of the following issues through binding arbitration:
The court may not confirm the arbitrator's award under par. (d)
and incorporate the award into the judgment or postjudgment modification order unless all of the following apply:
The arbitrator's award sets forth detailed findings of fact.
The arbitrator certifies that all applicable statutory requirements have been satisfied.
Except for binding arbitration, all settlement alternatives are compromise negotiations for purposes of s. 904.08
and mediation for purposes of s. 904.085
Sup. Ct. Order No. 93-13
, 180 Wis. 2d xv; 1995 a. 225
; 1997 a. 191
; 1999 a. 9
; 2005 a. 443
, s. 265
Comment, 2008: See s. 807.05, formal requirements to render binding agreements reached in an action or special proceeding. In some cases, such as family law cases, court approval is required for an agreement to be effective.
Note: Sup. Ct. Order No. 05-05
, 2008 WI 2
, states that “the comments to Wis. Stat. §§ 807.05 and 802.12 are not adopted but will be published and may be consulted for guidance in interpreting and applying the statutes."
Judicial Council Note, 1993: This section provides express statutory authority for judges to order that litigants attempt settlement through any of several defined processes. The parties may choose the type of process, the service provider, and the manner of compensating the service provider, but the judge may determine these issues if the parties do not agree.
Subsection (2) (b) prohibits the judge from requiring the parties to submit to binding arbitration without their consent; this restriction preserves the right of trial by jury. Nor may the judge order nonbinding arbitration, summary jury trial or multiple facilitated processes without consent of all parties; these restrictions allow the parties to opt out of the typically more costly settlement alternatives.
Lawyers have a duty to their clients and society to provide cost-effective service. The State Bar encourages lawyers to provide volunteer service as mediators, arbitrators and members of settlement panels.
Subsection (3) sets forth several special considerations for family actions. Even when the parties consent to binding arbitration, the court retains the responsibility of ensuring that the arbitration award in custody, placement, visitation and support matters conforms to the applicable law. The court is not bound to confirm the arbitrator's award. Rather, it must review the arbitrator's decision in light of the best interest of the child. If following this review the court finds that the arbitration process and its outcome satisfy the requirements of all applicable statutes, the court may adopt the decision as its own. Miller v. Miller, 620 A. 2d 1161, 1166 (Pa. Super. 1993). Reasons for deviating from child support guidelines must be in writing or made part of the record.
The Judicial Council has petitioned the Supreme Court to conduct a review and evaluation of this rule after it has been in effect for three years.