¶ 45. (dissenting). I would affirm the judgment of the circuit court. *310The plaintiffs' complaint requested an award of costs and fees and such further relief as the court may find proper. The complaint did not set forth a specific prayer for relief under Wis. Stat. § 51.61(7).
¶ 46. I conclude that the circuit court properly exercised its discretion in granting the post-trial motion to amend the pleadings to include a claim for fees and costs. The burden of proof was on the defendants to show prejudice. They have not carried their burden.
¶ 47. We held in State v. Peterson, 104 Wis. 2d 616, 634, 312 N.W.2d 784 (1981), that the circuit court has "wide discretion regarding amendment of the pleadings to ensure that the entire controversy is presented and to ensure that the party opposing the amendment is not unfairly deprived of the opportunity to meet the issue created by the amendment."
¶ 48. The majority opinion fails to allow the circuit court any discretion, let alone wide discretion, regarding the post-trial amendment of the pleadings. Furthermore, the majority opinion does not determine prejudice but rather decides the case in "the interests of justice," thus looking far afield for indicia of prejudice. The most important factor in deciding when leave to amend may be denied in both pre- and post-trial motions to amend is whether the opposing party will be prejudiced.1
¶ 49. As the Peterson court explained, prejudice does not mean that the party suffers a substantive harm but rather means that the party "was deprived of an opportunity to defend against the amended charge."2 The majority opinion ignores the facts and the circuit *311court's decision that the defendant had a full opportunity to defend against the amended charge, which had the same elements and proof as the original charge. Instead, the majority opinion stresses that here the defendants did not know they could be liable for over $1 million in costs and reasonable actual attorney fees.3
¶ 50. The majority opinion despairs that attorney fees and costs were not presented to the jury.4 Yet attorney fees are determined only after a successful termination of the underlying claim.5 And here the parties had the opportunity to brief the issue of fees and costs, take depositions, and retain experts.6
¶ 51. The circuit court carefully explored the facts and law applicable to the issue. The circuit court concluded that the standard of care applicable to both the allegations in the complaint and the amended pleadings was fully aired and that the defendants made no offer of proof that additional evidence could have been presented had they been aware of the amended pleadings. Accordingly, the defendants were not prejudiced.
¶ 52. Try as the majority might,7 the majority opinion cannot distinguish Gorton v. American Cyanamid Co. from the present case. Gorton was a negligent misrepresentation case tried before a jury. The court permitted the pleadings to be amended post-verdict to add a statutory misrepresentation claim pursuant to Wis. Stat. § 100.18 that permitted recovery of attorneys' *312fees. The Gorton court allowed the amendment because the allegations underlying both claims were fully aired at trial, the defendant was not prejudiced, and no other evidence could have been presented during trial to rebut the amended claim that was already at issue based on the complaint.8 The Gorton court allowed attorneys fees and costs to be determined post-verdict. I view Gorton as on all fours with the present case.
¶ 53. For the reasons set forth, I conclude that the circuit court judgment should be affirmed. The circuit court did not erroneously exercise its discretion.
¶ 54. I do not join the majority opinion regarding the Fund's liability for costs and reasonable actual attorney fees because the majority has delivered an unnecessary advisory opinion.
6 Charles Alan Wright et al., Federal Practice and Procedure: Civil 2d § 1487 at 612-13 (1990).
Peterson, 104 Wis. 2d at 635.
Majority op., ¶ 22.
M, ¶ 27.
See Gorton v. Am. Cyanamid Co., 194 Wis. 2d 203, 230, 533 N.W.2d 746 (1995).
Majority op., ¶ 27.
Majority op., ¶ 31.
Gorton, 194 Wis. 2d at 232-33.