DEMAND FOR SETTLEMENT - PROFESSIONAL MALPRACTICE
STATE OF WISCONSIN
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Wisconsin ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Wisconsin
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Professional's Name or Firm]
[Professional Liability Insurance Carrier]
[Street Address]
[City, State ZIP]
RE: PROFESSIONAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date(s) of Negligent Services: [Date or Date Range]
Professional(s): [Professional Name(s)]
Type of Professional: [Attorney/CPA/Architect/Engineer]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with the professional malpractice committed by [Professional Name] during the provision of [legal/accounting/architectural/engineering] services. This letter constitutes formal notice of our client's claim and our demand for settlement.
I. WISCONSIN-SPECIFIC LEGAL FRAMEWORK
A. Governing Law
This claim is governed by Wisconsin common law principles of professional negligence. In Wisconsin, professional malpractice requires proof of: (1) the existence of a professional-client relationship; (2) the professional's breach of the standard of care; (3) a causal connection between the breach and injury; and (4) actual loss or damage. Lewandowski v. Continental Casualty Co., 88 Wis. 2d 271 (1979).
B. Statute of Limitations
Legal Malpractice: Under Wis. Stat. Section 893.53(1m), actions for legal malpractice must be commenced within three (3) years from the date the injury was discovered or, in the exercise of reasonable diligence, should have been discovered.
Other Professional Malpractice: Under Wis. Stat. Section 893.53, actions for professional malpractice (other than medical or legal) must be commenced within six (6) years from the accrual of the cause of action.
Discovery Rule: Wisconsin applies the discovery rule, under which the statute of limitations begins to run when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause. Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550 (1983).
Continuous Representation Doctrine: Wisconsin recognizes tolling during continuous representation on the same matter. Auric v. Continental Casualty Co., 111 Wis. 2d 507 (1983).
Relevant Dates in This Matter:
- Date(s) of negligent services: [Date(s)]
- Date of discovery: [Date]
- Limitations period expires: [Date]
C. Comparative Negligence
Wisconsin follows a modified comparative negligence system under Wis. Stat. Section 895.045. A plaintiff may recover damages only if their negligence is not greater than the negligence of the person against whom recovery is sought. If the plaintiff is 51% or more at fault, recovery is barred entirely. If 50% or less at fault, damages are reduced proportionally.
D. Standard of Care Under Wisconsin Law
Under Wisconsin law, a professional must exercise that degree of care, skill, and judgment which is usually exercised under like or similar circumstances by the average practitioner in the profession or occupation. Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550 (1983).
Attorney Standard: An attorney must exercise "that degree of care, skill, and judgment which is usually exercised under like or similar circumstances by the ordinary, reasonable member of the profession." Lewandowski v. Continental Casualty Co., 88 Wis. 2d 271 (1979).
Accountant Standard: A CPA must exercise the degree of care, skill, and competence that a reasonably competent accountant would exercise under similar circumstances, including compliance with GAAP and GAAS. Citizens State Bank v. Timm, Schmidt & Co., 113 Wis. 2d 376 (1983).
Architect/Engineer Standard: Design professionals must exercise the skill and care customarily exercised by design professionals in good standing practicing in Wisconsin under similar circumstances. Kuehn v. Kuehn, 11 Wis. 2d 15 (1960).
E. Expert Witness Requirements
Expert testimony is generally required in Wisconsin professional malpractice cases to establish the standard of care, breach, and causation. Stang v. Hertz Corp., 83 Wis. 2d 685 (1978).
Exception: Expert testimony may not be required when the negligence is so grossly apparent that a layperson could determine it without expert assistance (the "common knowledge" exception).
Certification: We certify that we have retained a qualified expert who has reviewed the relevant materials and has concluded that the applicable standard of care was breached and that such breach proximately caused our client's damages.
F. Damage Caps
Wisconsin does not impose statutory caps on compensatory damages in professional malpractice cases.
Punitive Damages: Wisconsin allows punitive damages where the defendant acted maliciously or in intentional disregard of the rights of the plaintiff. Wischer v. Mitsubishi Heavy Indus. America, Inc., 2005 WI 26.
II. PRESERVATION OF EVIDENCE - LITIGATION HOLD
YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to the professional services provided to [Client Name], including but not limited to:
- Complete client files (paper and electronic)
- All drafts and working papers
- Correspondence (including emails, texts, and messages)
- Engagement letters and fee agreements
- Time records and billing statements
- Internal memoranda and notes
- Conflict check documentation
- Any recorded communications
- Professional liability insurance policies
- All versions of documents with metadata
- [For Attorneys:] Case files, pleadings, research memoranda
- [For Accountants:] Work papers, tax returns, financial statements
- [For Architects/Engineers:] Drawings, specifications, calculations, project files
Modification, destruction, or concealment of any records will result in claims for spoliation, sanctions, and adverse inference instructions under Wisconsin law. American Family Mut. Ins. Co. v. Golke, 2009 WI 81.
III. FACTUAL BACKGROUND
A. Professional Engagement
[Client Name] engaged [Professional Name/Firm] on or about [Date] to provide [type of professional services]:
Scope of Engagement:
- [Describe the scope of professional services]
- [Objectives or goals of the engagement]
- [Any specific representations made]
Professional Relationship:
- Engagement date: [Date]
- [If applicable:] Termination date: [Date]
- Fee arrangement: [Hourly/Fixed/Contingency]
B. Chronology of Events
[Date]: [Describe what occurred]
[Date]: [Describe what occurred]
[Date]: [Describe what occurred]
C. The Professional Error(s)
[Describe specifically what the professional(s) did wrong]
D. Discovery of Malpractice
Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].
IV. ELEMENTS OF PROFESSIONAL MALPRACTICE
Under Wisconsin law, a plaintiff must establish the following elements to prove professional malpractice:
A. Duty (Professional Relationship)
[Professional Name] owed a duty of care to [Client Name] arising from the [attorney-client / accountant-client / professional] relationship established on [Date].
Evidence of Duty:
- Engagement letter dated [Date]
- [Other evidence of professional relationship]
B. Breach of the Standard of Care
Applicable Standard: [Professional Name] was required to exercise such reasonable care, skill, and diligence as other similarly situated [attorneys/accountants/architects/engineers] ordinarily exercise in like circumstances.
Based on our expert's analysis, the applicable standard of care required [Professional] to:
- [Standard 1]
- [Standard 2]
- [Standard 3]
Breaches:
Breach 1: [Detailed description]
Breach 2: [Detailed description]
Breach 3: [Detailed description]
C. Causation
"But For" Causation: But for [Professional Name]'s breach of the standard of care, [Client Name] would not have suffered the damages described herein.
Legal Malpractice - Case Within a Case: [If applicable for attorney malpractice:] Had [Attorney Name] properly [handled the matter], our client would have [obtained a favorable judgment / avoided liability / recovered damages of $X]. We are prepared to prove the merits of the underlying claim as a "case within a case." Lewandowski v. Continental Casualty Co., 88 Wis. 2d 271 (1979).
D. Damages
As a direct and proximate result of [Professional Name]'s malpractice, [Client Name] has suffered the damages set forth below.
V. EXPERT OPINION
We have retained [Expert Name], a [licensed attorney/CPA/architect/licensed professional engineer] with [number] years of experience in [relevant practice area]. [Expert Name] has concluded, to a reasonable degree of professional certainty, that:
- [Professional Name] breached the applicable standard of care;
- These breaches were a direct and proximate cause of [Client Name]'s damages; and
- Had appropriate professional services been rendered, [describe avoided outcome].
VI. DAMAGES
A. Direct Financial Losses
| Category | Amount |
|---|---|
| [Description of loss 1] | $[Amount] |
| [Description of loss 2] | $[Amount] |
| [Description of loss 3] | $[Amount] |
| TOTAL DIRECT LOSSES | $[Total] |
B. Consequential Damages
| Category | Amount |
|---|---|
| [Lost business opportunity] | $[Amount] |
| [Additional professional fees to remedy] | $[Amount] |
| [Other consequential damages] | $[Amount] |
| TOTAL CONSEQUENTIAL DAMAGES | $[Total] |
C. Incidental Costs
| Category | Amount |
|---|---|
| Attorney's fees for remedial work | $[Amount] |
| Expert fees incurred | $[Amount] |
| Other costs | $[Amount] |
| TOTAL INCIDENTAL COSTS | $[Total] |
D. Summary of Damages
| Category | Amount |
|---|---|
| Direct Financial Losses | $[Amount] |
| Consequential Damages | $[Amount] |
| Incidental Costs | $[Amount] |
| TOTAL DAMAGES | $[Grand Total] |
VII. SETTLEMENT DEMAND
Based upon the clear breach of the standard of care and the substantial damages incurred, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Central Time on [Expiration Date].
VIII. INSURANCE INFORMATION REQUEST
Please provide within ten (10) days:
- All professional liability insurance policies applicable to this claim
- Policy limits for each applicable policy
- Any deductible or self-insured retention amounts
- Excess/umbrella coverage information
- Claims-made policy retroactive dates
IX. DOCUMENTATION ENCLOSED
- Engagement letter and correspondence
- Documents evidencing the professional's work
- Documents evidencing damages
- Expert curriculum vitae
- [Other relevant documentation]
X. CONCLUSION
This case presents clear professional malpractice that caused significant financial harm to our client. We are prepared to litigate this matter through trial in the Circuit Court of [County] County, Wisconsin if necessary. However, we believe early resolution serves all parties' interests.
Please respond by the deadline stated above.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
State Bar of Wisconsin No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
WISCONSIN PROFESSIONAL MALPRACTICE PRACTICE NOTES
-
Modified Comparative Negligence (51% Bar): Recovery is barred if the plaintiff is 51% or more at fault.
-
Three-Year Limitation for Legal Malpractice: Legal malpractice has a shorter limitations period (3 years) than other professional malpractice (6 years).
-
Discovery Rule: The limitations period runs from discovery of the malpractice, not from the date of the negligent act.
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Case Within a Case: In legal malpractice, plaintiff must prove the underlying case would have been successful.
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Expert Required: Expert testimony is typically required to establish standard of care unless the breach is obvious to a layperson.
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No Cap on Compensatory Damages: Professional malpractice has no statutory cap on compensatory damages.
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Accountant Third-Party Liability: Wisconsin is a leading state on accountant liability to third parties. Citizens State Bank v. Timm, Schmidt & Co., 113 Wis. 2d 376 (1983).
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No Certificate of Merit: Unlike some states, Wisconsin does not require a certificate of merit before filing a professional malpractice action.
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Venue: Proper venue is the county where the professional services were rendered or where the defendant resides.
-
Statute of Repose for Design Professionals: Ten years from substantial completion for architects and engineers under Wis. Stat. Section 893.89.
This template is specific to Wisconsin law. Professional malpractice claims in Wisconsin have specific requirements. Always verify current law and consult with qualified Wisconsin counsel.