Is your case REALLY frivolous? Or is the other side just being a jerk?

Back in 2006, the Wisconsin Supreme Court adopted the present version of section 802.05, Wisconsin Statutes, and repealed then-existing section 814.025. The Court did that to grant greater leeway to courts in regulating the conduct of lawyers and litigants, and to better mirror the federal practice followed under Federal Rule 11.

The gist of the rule is that a court may sanction "frivolous" conduct, "frivolous conduct" being actions taken in connection with litigation which have no basis in fact or law and are not good-faith requests for the modification of existing law; or which are presented for some improper purpose. (The entire text of the statute is here.) The law also provides a "safe harbor," in that a litigant is given 21 days' notice of claimed frivolousness during which the party or lawyer can withdraw the problematic claim and face no punishment.

Has the change worked? It doesn't seem so. Claims of frivolousness are more rampant than ever, based on my own experience and what I hear from other lawyers. It is a rare case, these days, that does not at some point have one side or the other claiming that some or all of the case against them is frivolous, and asserting, as a result, a right to reimbursement of their fees.

In my opinion, the vast majority of claims of frivolousness are themselves baseless or in violation of section 802.05. I say that because I am familiar with the actual standard for frivolousness, and it is a high standard indeed -- a high standard that it appears many, many Wisconsin lawyers are unaware of, and many many courts disregard.

The high standard for determining whether an action is frivolous, or not, can be found in the case of Rabideau v. City of Racine, a 2001 Wisconsin Supreme Court case that correctly set out how high the standard is for a frivolous case.

The background of Rabideau is this: Julie Rabideau owned Dakota, and lived across the street from Officer Jacobi, who owned his own dog, Jed. One day, Rabideau got out of her car and Dakota ran across the street. While there was some disagreement about what happened next, everyone agrees on one thing: Officer Jacobi fired three shots, hitting Dakota at least once. Dakota died two days later -- and Rabideau required medical treatment when she heard that news.

Rabideau sued. She filed a small claims complaint on her own (later, she hired a lawyer and amended her complaint). The original complaint said this:

"City of Racine Police Officer Thomas Jacobi shot and killed my dog, Dakota, and caused me to collapse and require medical attention."

That was everything she said in her complaint. That required that the circuit court (and later the appellate courts) construe her complaint, since Rabideau did not spell out what legal theories she was relying on; she simply set forth a short and plain statement of the facts and filed her lawsuit.

That is the first lesson for overly-litigious, hypercritical courts and lawyers these days: Rabideau's complaint, if filed in 2010, would almost certainly draw a motion to dismiss and claims of frivolousness, and require hearings by the circuit court, which might just dismiss it because it seems insufficient.

Seems, but is not. All that's required of a complaint is a "short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief," and "a demand for judgment for the relief the pleader seeks." That's not me talking; that's the law, which is too frequently ignored by lawyers, and even some judges.

(CCAP records show that Rabideau's complaint drew some motions, but I don't know what motions they were, and don't want to speculate on whether the City tried to dismiss for insufficient pleading.)

The Circuit Court -- and then the appellate courts -- did the first part of their jobs correctly, though; they construed the complaint, looking at the facts plead and determining what claim, if any, they stated. The courts in particular determined that Rabideau was claiming emotional distress. The Circuit Court decided the claim was for intentional infliction of emotional distress, while the Court of Appeals felt that the claim could be either for intentional, or negligent, infliction of emotional distress.

That's where the greater problem for Rabideau arose: Rabideau's claim was based on the death of a beloved pet-- and "beloved pet" in Wisconsin means "personal property." In Wisconsin, you can no more sue for emotional distress from watching your pet be gunned down than you could sue for emotional distress from watching your purse be gunned down. Dogs, cats, birds, all pets, in Wisconsin, have the same legal standing as a brick.

Because of that, Rabideau was foreclosed from suing for emotional distress caused by killing her dog, whether the shooting was done intentionally or negligently -- for a couple of different reasons.

First, Rabideau couldn't assert negligent infliction of emotional distress because public policy barred those types of claims. It's important to note, though, that prior to Rabideau, Wisconsin had not ever ruled out such a claim -- the only case cited by the Wisconsin Supreme Court in Rabideau on that issue said this:

"it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent
damage to his or her property."

That case didn't say can't recover; it said it's unlikely -- a word missed by the Circuit Court and Court of Appeals. So Rabideau was the first time, ever -- EVER-- that Wisconsin had ruled out emotional distress damages for loss of property.

Rabideau then couldn't recover on her intentional claim because, the Court held, she had no evidence that the cop had intended to inflict emotional distress on her when he shot her dog:


The plaintiff must establish that the purpose of the conduct was to cause emotional distress. There is no question that Officer Jacobi intended to fire his weapon at Dakota. However, there is no evidence to indicate he did so to cause emotional distress to Rabideau. Certainly that was a by-product, but that is insufficient standing alone. This is a limitation upon the cause of action for the intentional infliction of emotional distress. Anderson v. Continental Ins. Co., 85 Wis.2d 675, 694- 95, 271 N.W.2d 368 (1978). There must be something more than a showing that the defendant intentionally engaged in the conduct that gave rise to emotional distress in the plaintiff; the plaintiff must show that the conduct was engaged in for the purpose of causing
emotional distress.

The Wisconsin Supreme Court didn't rule on any other aspect of Rabideau's claim; it held only that she had failed to produce evidence of that element -- and so her claim failed.

The Court then went on to analyze the remainder of the case, noting that Rabideau, in failing on her emotional distress claims, had still presented a valid claim for loss of property. The Court of Appeals had held that the complaint didn't do that, and in reversing, the Wisconsin Supreme Court noted that


A claim for damages for property loss as the result of Officer Jacobi's action is the most conventional claim Rabideau could have brought, and is without doubt the most widely recognized claim that arises when an animal is killed. ... We therefore hold that Rabideau's complaint, liberally construed, also encompassed a demand for damages for property loss.

The Court of Appeals, then, had missed the "most widely recognized claim" of this sort, in its ruling. The Wisconsin Supreme Court recognized the claim, and reversed the decision dismissing Rabideau's case on those grounds.

Having ruled that Rabideau lost on 2 of her 3 claims, but remanding on one, the Supreme Court then went on to consider whether Rabideau's claim was frivolous; already, the Circuit Court and the Court of Appeals had held it was -- assessing, no doubt, a substantial penalty against Rabideau and her attorney.

The Wisconsin Supreme Court took a different tack:

Courts tread carefully when considering a claim of frivolous action, for the "ingenuity, foresightedness and competency of the bar must be encouraged and not stifled." ... the circuit court is to consider each of the alternative possibilities of a good faith argument, that is, was the existing law ready for an extension, modification or reversal. If the law is not ready for an extension, modification or reversal, the court is to consider whether the argument consider whether the argument for the change was made in good faith.

The Supreme Court then ruled that because one claim was valid -- the property loss claim -- and because the intentional infliction claim was properly brought, and because the argument for negligent infliction of emotional distress was done in good faith (Rabideau "adequately defended her position" in briefs and arguments), that, too, wasn't in bad faith.

The bottom line? Rabideau brought three claims -- premised on a brief allegation. One of those claims was almost entirely new, and barred by public policy. The other ultimately was dismissed for lack of evidence. The third would have resulted in perhaps nominal damages at best.

But none of it was frivolous, according to the Wisconsin Supreme Court. Rabideau's claims, which were barred by public policy and failed for lack of evidence and were nominal in amount, were not frivolous.

After Rabideau, it should be a rare claim, indeed, that is found to be frivolous. And if frivolous claims are rare, it should be equally rare to see lawyers arguing that a claim was frivolous -- so section 802.05 motions should be equally rare.

I doubt they will be, as lawyers find it all too easy to make threats of frivolousness and those threats are themselves rarely punished or litigated -- but I can hope.