Wednesday, March 31, 2010

Personal Injury Lawsuits - Safe Place Actions

By John DiMotto
Another species of personal injury lawsuits is the Safe Place action. In Wisconsin, the legislature enacted section 101.11 which is referred to as the Safe Place statute. By virtue of this law, it imposes a duty upon every employer to furnish a place of employment which shall be safe for the employees and frequenters. Furthermore, it imposes a duty upon every employer and every owner of a place of employment or a public building to construct, repair or maintain such place as to render it safe.
The Safe Place statute:
1) provides three alternative bases for liability. It applies to employers, owners of public buildings and owners of places of employment.
2) does not create a new cause of action but it does establish an increased standard of care, the violation of which is negligence.
3) it pertains to unsafe conditions as opposed to ordinary negligence which pertains to acts.
4) it does not require an employer to protect employees against wilful, unlawful or even negligent acts of others.
5) is concerned with structural defects or unsafe conditions associated with the structure.
6) alters common law where premises were merely required to be reasonably safe and now requires places of employment and public buildings to be kept as free from danger as the nature of the place will reasonably permit.
7) focuses primarily on property condition that caused injury rather than the duty that property owner breached.
Under the Safe Place statute:
1) liability is imposed if the premises are not kept as free from danger as the nature of the place will reasonably permit.
2) an employer or owner is not an insurer of frequenters.
3) "safe" is a relative term. It does not mean completely free of all hazards.
4) a place of employment is where a business is going on and person employed. It does not encompass solitary or even occasional business related pursuits in a private residence.
5) public building needs three or more units and applies to areas open to the public.
6) actual or constructive notice is needed where the claim is unsafe conditions associated with the structure.
7) there is no notice requirement with respect to structural defects.
Oftentimes when a plaintiff brings an action alleging a Safe Place violation, the plaintiff includes a second cause of action for ordinary negligence. The plaintiff may contend that there were both "acts" and "conditions" that played a role in causing injury. Since the Safe Place statute sets forth an increased standard of care, the jury could find that there is no ordinary negligence because that duty of care was met yet the jury can find that the "increased" duty of care imposed by the Safe Place statute was not met.
The Wisconsin's Safe Place statute provides added protection and remedies for employees and frequenters of places of employment and public buildings who are injured.
In my next blog, I will look at the "Dog Bite" personal injury action.

Monday, March 29, 2010

Personal Injury Lawsuits - Slip and Fall Actions

By John DiMotto
A second type of personal injury lawsuit that finds it way into a courtroom is the "slip and fall" lawsuit. These cases may involve a situation where a person is in a grocery store and falls on a wet spot on the floor or trips over some items left on a pallet on the floor It may involve a situation where a person falls on ice on private property. It may involve a situation where a person falls in a pot hole while crossing the street.
In these cases, the jury is usually asked to determine six things:
1) if there was negligence on the part of the property owner.
2) if there was negligence on the part of the injured person.
3) if there was negligence on the part of the property owner, was it a cause of the accident.
4) if there was negligence on the part of the injured party, was it a cause of the accident.
5) if both parties were causally negligent, the jury must compare the causal negligence of the parties.
6) regardless of the liability issues, as a result of the accident, what monetary damages has the injured party suffered.
In Wisconsin, the concept of negligence has four elements:
1) Duty of Care
2) Breach of the Duty of Care
3) Cause
4) Damages
In Wisconsin, we follow the minority view on negligence. This view comes from the Palsgraf case. Everyone has a duty of care to everyone in every circumstance. However, foreseeability is necessary component in the equation. If a result is not foreseeable, then a person is not held responsible for the result. Furthermore, even if a result is foreseeable, a party might not be held responsible based on public policy considerations. This may involve a situation where society is just not ready to allow a certain scenario to impose liability because to do so would open up "Pandora's box" -- that is, to allow "A" would mean there is no stopping point and everything would be fair game.
In Slip and Fall cases, the jury usually has to determine if the defendant property owner was negligent in the maintenance of his/her property and if the injured party was contributorily negligent with respect to his/her own safety. Usually the case comes down to the comparison of negligence between the parties. Rarely, is just one party found at fault. Slip and Fall cases are tough cases for plaintiffs because of the aspect of contributory negligence.
In my next blog, I will look at a subspecies of the slip and fall case involving Wisconsin's SafePlace statute.

Thursday, March 25, 2010

Personal Injury Lawsuits - Motor Vehicle Accidents

By John DiMotto
The most oft seen case in civil court is the personal injury lawsuit. In these cases, the trier of fact - a jury or the court - usually is called upon to determine fault/liability and damages.
Personal injury lawsuits cover a variety of incidents. They may involve a "slip and fall" case (ie. a person is in a grocery store and slips, falls and is injured), a medical malpractice case (ie. a person claims that a doctor was negligent in the performance of a medical treatment/procedure and that the negligence caused injury); a motor vehicle accident case (ie. a person is in a motor vehicle that is in a collision with another vehicle). Of these cases, the motor vehicle accident case is most prevalent.
The normal "course" for a person injured in a motor vehicle accident is that the person contacts his/her own insurance company and reports the accident and damage. The incident is also reported to the insurance company of the other driver. Most of these cases are "settled" when the damages sought are obtained either from one's own insurance company who will then deal with the other driver's insurance company. However, if the injured party and the insurance companies cannot agree, the case may go "to suit." The injured party may sue the other driver, the other driver's insurance company, the injured party's own insurance company if the other driver is uninsured or underinsured and any other party who may have been negligent and contributed to cause the accident. Also, if an insurance company has paid the medical expenses of the injured party, that company must be brought into the lawsuit since they have the right to be reimbursed by the "at fault" party or that party's insurance company.
When a PI-Motor Vehicle accident case is filed, the attorneys will engage in "discovery" to find out what happened. Discovery takes many forms; written interrogatories (ie. written questions are sent out and answers must be provided in a timely fashion); depositions (ie. witnesses are questioned under oath like testimony in the courtroom); requests to admit (ie. a party is asked to admit or deny facts about the accident)' request for production of documents (is. medical records). Once the discovery is completed and each side understands the full nature of the incident, attempts at settlement are made. If the attorneys cannot resolve the case, most judges will require the parties to engage in mediation. This is a procedure where a lawyer or retired judge will hear from both sides and try to get them to come to an agreement. If mediation fails, then the case is set for a court trial (judge decides the case) or a jury trial.
At trial, the party seek damages has the burden to prove that the other party was at fault, or more at fault than the plaintiff as well as entitlement to damages (ie. a monetary award to compensate the injured party).
Most cases will settle because the parties want to control the outcome of the case. There is no control when the cases is put in the hands of the trier of fact. However, when a case does go to trial, the outcome is usually decided based on which witnesses are believed by the trier of fact; that is, who is most worthy of belief as to the facts surrounding the accident.
Accidents occur daily. When the cannot be resolved, the forum for resolution is civil court.

Wednesday, March 24, 2010

Money Judgment Cases

By John DiMotto
When people think of court cases, two types jump out; high profile criminal cases and big money civil cases. O.J. Simpson and the "McDonald's coffee case" are the examples of what immediately come to mind. However, these cases are the exception, not the rule. In the arena of civil cases, many people find themselves embroiled in a lawsuit when they don't pay their credit card bills. When this happens, the credit card company, or a business who buys the cc company's debt, will file a civil lawsuit seeking a money judgment. These cases are so prevalent that in they have their own "case code" - so their numbers can be tracked.
A Money Judgment action is commenced like any other civil case. The plaintiff files the complaint and then has 90 days to serve the complaint upon the defendant. If the plaintiff is unable to personally serve the defendant, it can be served via publication. So many of the defendants in these cases move so often that they cannot be personally served and publication become "the rule as opposed to the exception." After the complaint has been served, the defendant ordinarily has 20 days (or 40 days if service was via publication) to file an answer. If no answer if filed, the plaintiff files paperwork for a default judgment. In order to obtain a default judgment, the court must be satisfied that the plaintiff has complied with all of its statutory and case law duties. The plaintiff must submit proof of service; an affidavit that the defendant has not filed an answer; an affidavit the the defendant is not in the active military (this status can prevent the action from proceeding during that timeframe); proof of the debt and the amount owed. The court must also be satisfied that the complaint complies with the Wisconsin Consumer Act. If the plaintiff is the creditor, the complaint must have attached to it all of the records supporting the amount of debt claimed. If the plaintiff is not the creditor but an entity which purchased the debt from the creditor, the supporting documents do not have to be attached but must be provided if requested by the defendant.
It is incumbent on the judge to carefully review all of the plaintiff's submissions to make sure the plaintiff is entitled to judgment. The biggest issue is whether proper service of the complaint was made. Due diligence to personally serve the complaint is necessary before publication can be used. This is because most people do not read the legal newspaper in which publications are done. In Milwaukee, that paper is the Daily Reporter. Most people have never heard of it but it is THE publication used.
If no answer has been filed and the paperwork is in order, the court will sign an order for judgment, the clerk of circuit court, based on the order for judgment, will sign a judgment and the plaintiff can then docket the judgment and seek to collect it. With respect to these money judgment cases, the amount of the judgment is usually very great because of the high interest rates with these credit cards. It is not unusual that the interest rate is close to 30%. This is because usury laws were done away with in the 1970's when consumer laws were put in place.
I usually spend at least one hour per week going over the paperwork submitted seeking default judgments in money judgment cases and there are at least a handful that I set for a hearing because of defects in the paperwork that must be addressed. Before I grant a default judgment, I must be satisfied that the plaintiff is not only entitled to the judgment substantively but also procedurally.
In my next post, I will examine another common civil action.

Tuesday, March 23, 2010

Minor Settlements

By John DiMotto
In Wisconsin, pursuant to section 807.10 of the Wisconsin Statutes, whenever a settlement or compromise is entered into involving a minor, it must have the approval of the court. The approval can be within the context of a civil lawsuit, or it may be sought in a separate "minor settlement" proceeding brought by a court appointed guardian or by a guardian ad litem for the minor. We usually see these matters in situations where a child is injured in an automobile accident and insurance company who is paying the claim wants court approval and release from further liability.
In the context of a minor settlement case, there are numerous considerations that demand a judges attention:
1) Judges routinely require that they be provided with reports regarding the incident (ie an accident report) so they can determine whether the child bears any fault/liability for the incident.
2) Judges routinely require that they be provided with medical records that document the injuries sustained by the child so they can assess the value of the injury.
3) Judges want to be satisfied that the settlement is fair to the child since this will be the only opportunity for the child to be compensated.
4) Judges determine the appropriate compensation for the guardian ad litem. Usually the GAL is the attorney for the family of the child. Judges in Milwaukee County routinely cap GAL fees to no more than 25% of the settlement.
5) Judge require the the settlement be placed in an annuity, if the settlement amount is great, or in a restricted bank account. The money may not be accessed until the child is 18 years of age or unless a specific order of the court for early withdrawals is obtained.
6) Judges are very sensitive to making sure the family of the child understand that the settlement money is the child's money and not family money. It is not to be used by the parents to support the child - that is the responsibility of the parents.
The requirement for court approval is a way for society to ensure that compensation is just and that the best interest of the child is at the forefront of the proceedings.
In my next few blogs, I will address the various types of civil actions that come through the doors of the courthouse for judicial/jury resolution.

Sunday, March 21, 2010

Name Changes

By John DiMotto

At the end of my blog discussing the cost of litigation, I indicated that in upcoming blogs I would discuss the various types of civil cases that come before the court. The first one I would like to cover involves "Name Changes."

There are two primary types of court actions that can be pursued to effectuate a name change. First, bringing an action under section 69.12 to correct a mistake on the birth certificate. Second, bringing an action under section 786.36 to select a new name.

An action under 69.12 can be brought by a person with a direct and tangible interest in the vital record. In Milwaukee County these actions are assigned to the daytime Duty Judge. (Every week one judge from either the Civil or Family Division is designated the Duty Judge.) The procedure is that the person seeking the name change obtains a civil case number for the action from the clerk of circuit court and then goes to the courtroom of the daytime Duty Judge with the Petition and supporting documentation. The judge reviews the documents and then goes "on the record" and questions the petitioner regarding what the error in the original birth certificate is and the reason, if known, for the error. If the judge is satisfied that the information to be corrected was erroneous, the judge will sign an order for the change. The Order is then recorded with the Register of Deeds and sent to the State of Wisconsin Vital Statistics Department for VS to make the changes on the birth certificate.

An example of such an action is that the person at the hospital misspelled a name. Instead of putting "Katherine" on the birth certificate "Kathryn" was put on the document. A change can be made without court order within the first year of the mistake. After one year, the change requires a court order. Many errors on the birth certificate can be changed but not all. For example, you cannot add a father's name.

An action under 786.36 is brought by a person or parents on behalf of their child. This is a situation where a totally new name is being selected. This action requires; notice to the public via publication; if the person is licensed to practice a profession in Wisconsin (teaching license excepted) the person needs the permission of the licensing agency; the person cannot be a convicted sex offender who is prohibited from changing his/her name. Furthermore, anyone can object to the change. If an objection is interposed then the court will decide whether to grant the change.

Usually, a name change under 786.36 is uncontested, however, not always. If one parent wants to change a child's name, if the petition is not joined by the other parent, the court must do an analysis of the factors set forth in 786.36 and make a decision. We see contests in a situation where the parents were not married, are no longer a couple and one parent wants a name change to remove the surname of the other parent. Ordinarily, the burden of proof cannot be met by the petitioning parent and the child's name remains until age 14 when the child can personally petition the court. These situations can be very ugly. It becomes the responsibility of the judge to fully explain to the contestants what the law is and why the judge is making his/her decision.

In my next blog, I will look at Minor Settlements.

Saturday, March 20, 2010

Jurors Trying to Avoid Jury Service

By John DiMotto
Saturday Special
One of the most frustrating aspects of voir dire is dealing with the panel member who clearly does not want to serve. This person puts the court and the attorneys in a very awkward position. No one want a person who really does not want to serve on the jury for fear that the person may subvert the process. However, it is safe to say that many people who come to the courthouse when called are not looking forward to the experience but are willing to do their civic duty. The job of the court is to embrace this second group and make them understand how important they are to the pursuit of justice and a fair outcome of the litigation.
If a judge spends a little time with the panel explaining why we have juries and what a jury accomplishes for the litigants in particular and the community as a whole, the panel members themselves embrace their role with vigor. I say this because at the end of every case when I talk to jurors about their experience, to a person, they relate that they are so glad they had the opportunity to participate although they may have had their doubts when they came to the courthouse for their first day of service.
There are those few panel members who don't want to be there and, of their numbers there are some whose minds cannot be changed. You can tell who they are from their body language as well as their words. The challenge is how to change the minds of those who are willing to listen and how to deal with those whose mind you cannot change and not taint the rest of the panel. My practice is to fully explain why we need them and why they need us. I engage them "one on one" in the open courtroom. In so doing, I reinforce those who want to be there and convince those on the fence to want to be there. As to those whose mind cannot be changed, I try to minimize any damage they might try to cause for the entire panel. However, I try to not "give in" to them right out of the gate though I will not let them taint those who are open to their civic duty. Some of these few "naysayers" can do interesting things.
In the final analysis, it is up to the judge to take control to make sure the voir dire process is fair.

Friday, March 19, 2010

The Cost of Litigation

By John DiMotto
The beauty of our American system of justice is that government provides a relatively inexpensive forum for the resolution of civil disputes. In Milwaukee County, for approximately $269, you get the services of a judge, court reporter, clerk, bailiff and 12 jurors. Of course, a litigant must pay his/her attorney and the costs necessary to put a case together - which can be very expensive. However, your government charges only a nominal fee for you to pursue your claim regardless of the nature of the case and regardless of how long it takes to resolve the case. It doesn't matter if it is a name change action which usually entails only one appearance before the judge and is finished in about 30 days from start to finish or a complex asbestos case which may entail up to one hundred appearances in court and which may take years to complete. You only pay your government the $269.
The reason for this is that justice should not be for sale. The law is to be administered without regard to persons. The rich, the powerful and the influential should be given no advantage because of status. This is not to say that people do not try to use their status to get an upper hand. However, it should be the substance of one's case not one's personal or professional status that rules the day.
While one must pay $269 to get access to the courtroom to litigate one's claim, if a person is indigent, he/she can obtain a waiver and obtain access for free. Application for the waiver is addressed to the attention of the Chief Judge of the District. Applications are viewed with an eye toward making sure that every person " gets his/her day in court."
In addition to making the courtroom accessible to everyone, in Milwaukee County we have a Self Help Clinic that provides help for people to navigate the court system. Forms are made available to people and many lawyers donate their time to help people fill out the forms. These lawyers do not provide legal advice, rather it is help in properly filling out the forms which constitute the pleadings in the case. The creation of a self help clinic is a benefit to individuals seeking access to the courts as well as to the courts. The more people know and understand, the easier the process will be for them and for the courts.
In my next several blogs, I will look at the various types of civil cases that come through the doors of the courthouse.

Wednesday, March 17, 2010

St. Patrick's Day and the Courts

By John DiMotto
While I am not Irish, I always take a vacation day on St. Patrick's Day so I can enjoy the good cheer of and with all of my Irish friends. Today, I am also taking a vacation day from my blog.

Tuesday, March 16, 2010

Guardianship and Protective Placements: Watts Hearings

By John DiMotto
As a Milwaukee County Circuit Court judge, I am assigned to a split calendar. 75% of my caseload involves civil cases and the remaining 25% involves probate cases. The civil cases run the gamut from personal injury to contract to medical malpractice to foreclosures/confirmations to money judgment cases. The probate cases include estate cases, mental commitments, individual at risk injunction hearings and guardianship/protective placement cases. For the most part, the civil cases involve "monetary issues" whereas the probate cases involve "people issues."
When a person is placed under a guardianship and protective placement, that person is entitled to an annual review of the protective placement. This procedure was mandated by the Wisconsin Supreme Court in the Watts case. Every year the court must make certain that the person is in the least restrictive environment consistent with their condition.
Placements run the gamut from locked facilities like the Milwaukee Mental Health Complex - Hilltop to nursing homes to CBRFs to supervised apartments. It is up to the courts to make sure the person is appropriately placed.
A guardianship is a condition precedent to a protective placement. A guardianship is only appropriate when a person is incompetent as that term is set forth in Chapter 54. A protective placement is only appropriate when a person is incompetent and poses a danger to themselves or others as these terms are set forth in Chapter 55.
Most of these cases are resolved via summary hearings because it is undisputed that the guardianship should continue and the placement is appropriate. They are handled by our Probate Court Commissioner Patrice Baker. However, when the subject challenges the continuation of the guardianship and the protective placement, the case comes before a Probate judge like myself. An attorney is appointed for the individual and an independent psychological evaluation is usually ordered. Sometimes there is also a request for an independent comprehensive evaluation. The psychological evaluation addresses competency and the comprehensive evaluation addresses the placement. The matter is then set for a contested hearing. The burden is on the County to establish by clear and convincing evidence that both the guardianship and protective placement are warranted.
These are usually sad cases. Many of the subjects under the guardianship and protective placement just want to live on their own and think they are in the past when they could do so. We carefully look at all the circumstances of their life and are guided by the evidence.
I make a special effort to connect with the subject regardless of how debilitated the subject may be. These individuals want someone to listen to them and recognize them. I do that. The fact that a person suffers from dementia and needs a guardian and needs to be protectively placed does not mean they should be forgotten. We do not forget them.

Monday, March 15, 2010

Sports and the Judiciary

By John DiMotto
Today's blog is not a legal one, it addresses an interest that I have in sports, particularly basketball. (Remember, this blog records the experiences of a circuit court judge - and that includes off the bench as well as on the bench.)
I consider myself a basketball fan. Particularly a college basketball fan. I really enjoy the spirit and the love of the game that students bring to the court. It is more emotional than professional basketball. It has more heart.
I follow a number of college teams: University of Wisconsin Badgers, Marquette University and the University of Maryland.
I went to Marquette as an undergrad. During my four years there (1968 - 1972), I don't think I missed a single home game. In those days, they were the Warriors. In those days, there was no Bradley Center, just the Milwaukee Arena. In those days students were given REALLY good seats. I can remember a few games sitting at mid court 15 rows from the floor! And the price of tickets for students in 1968 -- 50 cents. That's right, cents not dollars. 50 cents to see a top five team led by Al McGuire. Marquette had some great teams back then. Of course at tournament time, the format was very different. It was a much smaller field and far less fanfare.
I went to Wisconsin for law school. During my time there (1972 - 1974), basketball was a big second fiddle to football. They weren't very good. However, they tried hard. Back then, it was more about football and hockey than any other sport. With the subsequent emergence of Dick Bennett (an Italian by the way) and Bo Ryan, the Wisconsin basketball program took off.
While I have no personal educational connection to the University of Maryland, I do have a connection. My daughter did her undergrad work there. Maryland is a true college campus. It is self contained. Everything on campus - football stadium, basketball complex, soccer, baseball, softball, field hockey and lacrosse field. I adopted the campus and enjoyed traveling there to visit with my daughter and see sporting events with her. I probably follow Maryland sports even more closely that Wisconsin or Marquette. The past few years, following Maryland men's basketball has been especially fun with Greivis Vasquez running the team. The Terps have exceeded expectations because of their heart and they have beaten teams better than they were because of that heart. But it is not just men's basketball. The women's team has been even more exciting. Brenda Freese has had some great teams over the past six years or so. It culminated in a NCAA championship in 2006. I went to my fair share of Maryland women's games and the fans were unbelievable. Never, ever, have I seen fans have so much fun and be so into a game. It made me feel like I was back in school.
Sports is a great diversion for me. It gets my mind out of the courtroom and into a fun world. I am active in the law and active in my free time. I enjoy my work but I also enjoy the thrill of the game - whatever the game might be.
So, I am really looking forward to the next three weeks as the NCAA men's tournament and women's tournament progress. The blowouts, the nailbiters, the thrill of victory and agony of defeat - and a lot of it - is on the horizon. It truly is March Madness!

Thursday, March 11, 2010

Parameters of Voir Dire

By John DiMotto
This issue of how much control a judge should take with respect to the attorneys' role in voir dire (jury selection) is hotly debated among the bench and bar. Should attorneys be given unlimited access to the jury panel or should the judge put limitations on the questioning? Should the judge allow the attorneys to ask their own questions or should the judge do all the questioning himself/herself and only allow the attorneys to submit questions for the judge to consider? Should the judge put time limits on the attorneys? Should the judge put limits on the topics the attorneys may pursue? These questions are answered by each individual judge. There is no uniformity. How voir dire proceeds is within the sound discretion of the trial judge.
I personally believe that the judge should divide voir dire into four sections.
First, the judge should explain to the jury what a jury trial consists of from the time the jury panel walks into the room until they are excused after deliberations have concluded. It is critical that the judge tell the jury what to expect in order to relieve any anxiety the jurors are experiencing as a result of just being there. Jury service is very foreign to most people. Their knowledge base is from what they see on TV or in the movies and that is not a true representation of how jury trials work. When I "debrief" the jury at the end of the trial -- find out what they thought of their experience -- they always say they appreciate the fact that I took the time to explain how a jury trial proceeds and dispel myths about jury service.
Second, the judge should do a thorough voir dire "general" individual questioning of the jury himself/herself in terms of obtaining juror biographical data. If the judge does efficient but thorough individual questioning of each juror, he/she presents the attorneys with a verbal CV of each person. My questions are intended to reveal who this person is via their words and their demeanor. It is not necessarily what a juror says but how he/she says it that is important. Attorneys should pay close attention to both. In doing this, I connect with the jurors and I believe I earn their trust so that when I read instructions about not discussing the case while it is in progress and when I tell them not to communicate on the internet via social networks or blogs that they will follow the instructions.
Third, the judge should ask some questions of the entire panel on topics specific to the case. For example, in a PI auto case, I ask questions about their own experiences with accidents, insurance companies, claims, lawsuits, nature of injuries, etc. This will highlight for the attorneys which panel members may need their attention when they question the panel.
Fourth, I give the attorneys a fair amount of latitude in asking their questions. I realize that attorneys want to accomplish, at a minimum, three things. They want to get information. They want to connect with the jurors. They want to convey to the jurors that they can be trusted. These are reasonable goals.
I realize that the goals of the court and the goals of the attorneys are different. The judge wants to make sure that the jurors will be fair. The attorneys want jurors who will accept their proposition. Actually, both goals can be achieved if the judge takes control of the voir dire.

Wednesday, March 10, 2010

Civil Cases: Motions after Verdict

By John DiMotto
For the last several posts, I have discussed the relationship of the judge and jury during the jury trial. Does that relationship survive beyond the trial itself? It actually does.
After the jury returns its verdict in a civil case - the jury answers a number of specific questions that resolve issues of fact - the case is far from over. The verdict starts the next chapter in the case - Motions After Verdict (MAV).
In Wisconsin, attorneys have twenty days to file motions after verdict. These motions either ask for relief from the verdict or ask to enforce the verdict. If MAV are filed, they must be heard within 60 days of the rendering of the verdict and must be decided within 90 days. While the trial court can grant an extension of time to file and hear the motions, the decision must be made within 90 days. There have been a number of cases where the 90 day time limit has been violated and decisions on MAV have been rejected in favor of the verdict.
The reason I say that the judge-jury relationship actually continues is because case law and statutory law makes it clear that if there is ANY credible evidence to support the jury's verdict, even if there is stronger evidence to the contrary, the court on MAV must sustain the jury's verdict. Great deference is paid to the jury's determination of facts, although the court can tweak some answers . The same is not necessarily true for the trial judge's legal rulings.
If the trial judge has made serious errors of law during the trial which contributed to the verdict, a reversal may be in order. If the law given to the jury is inaccurate or incomplete and contributes to the jury's verdict, the verdict cannot stand. This is why it is so important that every judge carefully and fully prepare for every jury trial - paying particular attention to the law that will govern the jury's deliberations.
Before every jury trial, I go over the attorneys' jury instruction and special verdict requests with a "fine tooth comb" and put together a preliminary list of the final instructions as a starting point for the final instructions conference that will be held just prior to the fifth phase of the trial (the Closing Instruction phase). This is a terrific guide for me in my approach the legal issues in the case. The civil law can be complex and great attention must be paid to it on the front end of the trial. If a judge waits until all the evidence is in, mistakes in legal rulings may have been made during the evidentiary phase that jeopardize the ultimate verdict.
The real starting point for addressing MAV is at the beginning of trial not at the end of the trial.

Tuesday, March 9, 2010

Judge-Jury Relationship: The Deliberation Phase

By John DiMotto
In the seventh and final phase of a jury trial, the jury deliberations, the jury finally gets the opportunity to discuss the evidence and the law and, using their common sense and long experiences in life, return a verdict.
In most of my juries we have selected one extra juror, and before deliberations can begin one juror must be excused. This occurs "by lot." Years ago, in the 1970's, when more than 12 people were selected to serve on a jury there were two tiers of jurors. First, you had the "regular" panel of 12 and then you had a designated alternate or two. The regular jurors knew they were "regular" and the alternate knew he/she was the "second class" juror - one who would play no role unless a "regular" juror was struck prior to deliberations. This process sent a poor message to the alternate. In the 1980's this was changed. Now when you select a jury of more than 12, all jurors are on the same level. All have the same "investment" in the trial. Only at the end of closing arguments and instructions is one juror excused and then the remaining 12 can begin deliberations. While it is often disappointing to the juror who is struck, this process keeps all jurors "into" the trial to the end.
In my final instructions, I give the jurors some parameters to guide them in their deliberations.
1) I usually make the decision that, on my own, I will not provide them with any exhibits when the jury begins deliberations, and I tell them this fact. It is my belief that I should not give them some exhibits and not others because this might give them the impression that what I give them is more important than what I don't give them. I tell them this and also tell them that if they do want to see any exhibit all they have to do is ask and in most instances they will get the exhibit. However, I also tell them that if the exhibit they want to see is one not appropriate for the jury room (ie. voluminous medical records of which only a few pages were used) they won't get it but can still consider it to the extent it was used during trial. I tell the jury that it is my belief that if they know they can ask for an exhibit and don't ask, that tells me they don't need it in the jury room.
2) I have a law clerk who is the liaison between the jury and the court/attorneys during deliberations and I tell the jury that if they need anything, they can use our buzzer system to call for the law clerk and give him/her their request. This usually pertains to requests for exhibits, question for the court, requests for food or beverages, etc.
3) If the jury has a question or request, I tell them that I will discuss it with the attorneys before I take action.
4) Any questions or requests made by the jury are dealt with on the record with the attorneys before a response is made unless the attorneys make themselves incommunicado with the jury. If that happens, I tell the attorneys that I will deem this circumstance to be a waiver by them to giving input in how I deal with the request/question. I do this in civil, not criminal cases.
Once the jury reaches a verdict, we convene in open court and read the verdict. I routinely individually poll the jury once the verdict is read to ensure it is the verdict of the jury. The jury is then excused with my gratitude for their service.
Before the jury leaves the jury room, I usually stop in to personally thank each of them for their service and inquire if they have any questions about the process that I can answer. I do not want to get into specifics about the case since there may be motions after verdict, but I generally speak with the jury about their experience and what I can do to enhance the experience for future juries. I also tell them that now the case is over and they can talk to anyone in the world about their service - in person or on line via social networking.
The bottom line is this. Our jury system WORKS because of the willingness of people to step up and answer the call of jury service. Our jury system is the best in the world because of the people who serve.

Monday, March 8, 2010

Judge-Jury Relationship: The Closing Argument Phase

By John DiMotto
The one phase of the trial where the judge's relationship with the jury is dependent on the judge's relationship with the attorneys is the sixth phase - the Closing Argument Phase.
This phase give the attorneys the opportunity to persuade the jury as to how the jury should decide the case based on the evidence, in light of the law, using common sense and long experiences in life. Here, the case is about the attorney-jury relationship. However, the trial judge can, and should, provide both of them with the context in order to enhance the performance of both.
I believe that in order to promote effective arguments, the trial judge should impose reasonable time limits on the attorneys. There is a saying that "the longer you talk, the less the jury listens." I believe that is true. Attorneys need to package their arguments in a neat and tidy way to get their positions across. Less does mean more. In the Opening Statement Phase, the attorneys tell the jury what they will hear and see. In the Closing Argument Phase, they should emphasize how they have done so, clearly and concisely. Attorneys should read the body language of the jurors during their arguments and take cues from it. Attorneys should also consider reinforcing their verbal arguments with demonstrative evidence - use of an easel or flip chart to highlight, in bullet point fashion, the key components of their argument.
The trial judge can and should provide a proper environment for both the attorneys and the jury for the sixth phase. In doing so, the trial judge provides the jury with the final light at the end of the tunnel as the jury gets ready to embark on their deliberations in the seventh and final phase of trial.
In my next post, I will discuss how the trial judge can promote effective deliberations.

Friday, March 5, 2010

Judge-Jury Relationship: The Closing Instruction Phase

By John DiMotto
After all the evidence has been presented in the the Evidentiary Phase (fourth phase), in the next phase of the trial, the Closing Instruction Phase (fifth phase), the judge addresses the issue of what jury instructions should be given in light of the facts adduced in the fourth phase.
When the trial begins, while the judge has a pretty good idea as to what instructions will govern the deliberations, the judge cannot be certain given the vagaries of trial. Only after all the evidence is in can the judge make a decision as to all the principles of law that the jury should consider during deliberations.
Before a final decision is made, an Instructions Conference is held with the lawyers. At this conference, the pretrial jury instructions requests of the lawyers are considered. Each judge handles the Instructions Conference differently.
In Wisconsin, there are several Jury Instructions Committees who are empowered to draft model instructions for use in most cases. These standard instructions are the starting point in jury instruction consideration.
The way I approach a jury instructions conference is as follows:
1) I do it on the record so an appellate court will have the benefit of my thought process based on a full exploration of the law in light of the facts.
2) I set forth what I believe are the appropriate instructions and the order in which they should be read. This is based on the lawyers' pretrial requests and my view of the evidence.
3) I go over how I believe the appropriate special verdict form should read
4) I ask the lawyers if they have any objections to my proposed instructions, and if so, the basis for their objection.
5) I ask the lawyers if they have any objections to my proposed special verdict form, and if so, the basis for their objection.
6) I ask the lawyers if they want any of my proposed instructions modified, and if so, the basis for their request.
7) I ask the lawyers if they want any additional instructions, and if so, the basis for their request.
8) I then set forth in detail on the record my decisions. I relate the decisions to the law that applies in light of the evidence.
9) I then discuss the issue of how we will handle issues regarding exhibits. It is my practice to not send exhibits to the jury on my own, however, if the jury requests to see certain exhibits to provide them so long as it will not create a situation of unfair prejudice.
10) I then address the amount of time the lawyers believe they need to effectively argue the case to the jury and then set reasonable time limits.
11) Finally, I bring the jury back into the courtroom and proceed to read the instructions to the jury.
12) If it is a case where the special verdict is very lengthy, I usually provide a copy to each juror so they can follow along when I am reading the verdict form before I start.
The judge must be very meticulous and careful in the instructions decisions he/she makes. You do not want to spend weeks on a trial only to take the instructions too lightly, mis-instruct the jury and have to retry the case.
In my next post, I will discuss the sixth phase of the trial, the Closing Argument Phase.

Thursday, March 4, 2010

Judge-Jury Relationship: The Evidentiary Phase - Early Juror Discussions

By John DiMotto
The current state of the law in Wisconsin does not allow jurors to discuss the case among themselves until they begin their deliberations at the end of the trial, during the seventh and final phase. While this may be the case here, it is not so throughout the country. In some jurisdictions, jurors are allowed to talk about the case as it is progressing. It is believed that this early discussion, some might call it premature jury deliberations, helps all jurors to keep up with the evidence and not "fall behind" because some have missed the significance or insignificance of some evidence.
What are the pros and cons of early discussion of the case?
Jurors can review the evidence while it is fresh.
Jurors can help each other understand the evidence while it is fresh.
Jurors can collectively help each other focus on what is important and what is not.
If jurors are allowed to submit questions for the witnesses, early discussions will assist the individual jurors in the "direction" of their questions so they are "on task."
Passive jurors can be swayed by active jurors.
Jurors may prematurely take sides.
Jurors may prematurely make up their minds.
Jurors do not have the benefit of "The Law" to guide their early discussions.
Overall, I do not favor early discussions. "The Law" gives a framework/canvas in/on which the jurors do their work. Until all the evidence is in, the trial judge is not in a position to fully instruct the jury. In other words, there is no framework/canvas until the judge knows what law should be applied to the evidence by the jury.
In my cases, during my preliminary instructions in the second phase of the trial, I explain this to the jury. I tell them that I do not believe that they can intelligently discuss the importance and significance of the evidence until they have heard ALL the evidence and know what ALL the law is that governs the case. Only then is there a CONTEXT to govern jury deliberations.
I am not saying that jurors will prejudge the case if they engage in early discussions, but I do believe that we all have a tendency to arrive at opinions/conclusions as early as possible and that can cause us to have tunnel vision and effect how we see things. Jurors must keep an open mind to everything in evidence and I think this will be difficult to do so, effectively, if they engage in early discussions.
In my next post, I will discuss the fifth phase of the trial, The Closing Instruction Phase.

Wednesday, March 3, 2010

Judge - Jury Relationship: The Evidentiary Phase - Part Two

By John DiMotto
In my last post, I began a discussion on how a judge relates to the jury during the evidentiary phase of the trial. Today, I would like to discuss how "juror questions" can make a huge difference on how attorneys approach their case.
Most attorneys are opposed to "juror questions" for witnesses. They are concerned that the jury will take an advocacy posture as opposed to a fact finder posture. They are concerned that the jury will ask questions that have nothing to do with the issue/s in the case and go off on tangents that will take their focus from the task at hand. While I understand these concerns, I firmly believe that a properly instructed jury stays on task. I also believe that allowing "juror questions" gives the attorneys an insight into juror thinking and an insight as to whether they are making an effective presentation to the jury.
When I allow "juror questions," I have the jurors submit them in writing. They submit their questions anonymously. I review them with the attorneys and do give them input before I make the decision as to whether I will ask the questions of the witness. I also ensure that the attorneys get the opportunity to do follow up and they finish up the questioning before the witness is excused. I stress to the jury that I allow questions from them so jurors can get answers to questions they think they need to decide the facts in the case. I tell them that if I do not allow certain questions it is because the questions and the answers are not relevant and should not be a concern for the jury. I even try to give an explanation as to why a certain question is not being asked for the benefit of the "anonymous" juror who submitted the question. (ie. a question calls for speculation, is barred by the rules of evidence, etc,) By allowing "juror questions," the attorneys have a window into what jurors are thinking. Oftentimes, attorneys "miss the forest for the trees." By this, I mean they are so engrossed in their case that they take things for granted. They sometimes forget that while they have been living with the cases for months or years, this is the first and only time the jurors are being presented with the case.
If the trial judge fully instructs the jury on what "juror questions" allows the jury to do and what they cannot do, the jury can more easily stay on task and perform within the context of their sworn oath. Further, if the attorneys pay close attention to what questions the jury submits, they will have an insight into whether they are being effective advocates, and if not, they can address their deficiencies before it is too late.
In my next post, I will discuss the pros and cons of the rule that the jurors may not discuss the case among themselves until deliberations in the seventh and final phase of trial.

Tuesday, March 2, 2010

Judge - Jury Relationship: The Evidentiary Phase - Part One

By John DiMotto
For me, the most challenging and fascinating phase of the jury trial is the evidentiary phase. During this phase, a judge must multi-task. The judge must monitor the evidence, monitor the conduct of the attorneys, be prepared to make instant rulings (rulings that on appeal are analyzed for hours not seconds), keep an eye on the gallery to make sure that people are not trying to influence witnesses on the stand, make sure that witnesses who have not yet testified are not in the courtroom if there is an exclusionary ruling precluding their presence until they are done as witnesses, describe- for the record - gestures of witnesses that constitute evidence that their words do not convey, keep an eye on the jury to make sure they are following the case, be attentive to any questions they submit (in cases where I allow the jurors to submit written questions for the witnesses).
To make sure the jurors can give the case their full attention, I do not keep them in the jury box for longer than an hour and a half at any stretch. It has been my experience that after that amount of time the jurors need a break to "recharge their batteries," take a restroom break, stretch their legs, perhaps grab a snack to give them extra energy or even leave the building if they are smokers.
When I do give them a break, I always give them a cautionary instruction; the same one every time. I always remind them: "You may not discuss this case among yourselves. It is premature to do so until this case is given to twelve of you for your final deliberations in the seventh and final phase of trial. Also, if you leave the jury room, make sure you avoid contact with the lawyers, parties and witnesses and they know they should avoid contact with you. Finally, remember that you should not try to obtain any information from any source. This means do not consult dictionaries, other books, go on the internet for information, do not so any social networking. If you do so you will jeopardize the integrity of your verdict."
Since I say it every time, I invariably see smiles and the faces of many of the jurors. I know that I have made my point and am confident they are following my instructions and admonitions. Occasionally, I even tell the jurors that at some point when we take the break I will ask one of them to repeat it for the other jurors. That usually gets a chuckle. I find it is a "gentle" way to reinforce the importance of juror not trying to get any evidence from extraneous sources. It would be a shame to have to retry a case because of juror misconduct.
I also tell jurors that during the evidentiary phase, if at any time they cannot see evidence which is being presented to them in "visual" form or if they cannot hear what witnesses are saying that they must be proactive and get my attention. I reinforce that each juror must hear and see all the evidence; that it is not good enough, if they miss something, to wait until deliberations to ask other jurors what they missed.
The evidentiary phase is "the meat and potatoes" phase of the trial and it must be served up "on fine china", that is, in a first class manner.
I truly believe that if the judge communicates with the jury throughout the trial as to what they can and cannot do, particularly during the evidentiary phase, that they can do their job more easily and with less anxiety.
In my next post, I will cover the circumstance of how a judge can effectively deal with juror questions for witnesses.

Monday, March 1, 2010

Judge - Jury Relationship: The Opening Statement Phase

By John DiMotto
Once the jury has been selected and the jury has been read preliminary instructions, the attorneys are given the opportunity to make their Opening Statements. While it might seem like this phase does not have much of a judge-jury relationship, it does.
Every judge should make sure the jury understands that what the attorneys say in their opening statement is not evidence. This may be rudimentary to those of you reading this blog but it is not necessarily so for the ordinary citizen off the street. Some people think that if the attorneys are allowed to say something it must be so. I emphasize that the Opening Statement phase is the opportunity for the attorneys to "paint a big picture" about what the case is all about; that it gives the attorneys the opportunity to provide the jury with a "roadmap" to follow the evidence as it is presented. However, I emphasize that what they say is not evidence and if the evidence does not support what they say in opening statements that the jury must give it no credence. In fact, I tell the jury that they may not take notes of what the attorneys say in opening statements because they can only take notes of the evidence.
When the attorneys are making their opening statements, I pay close attention not just what they say but how they say it. While I will not be overly proactive, I will sustain objections to "arguments" and "personal opinions" during opening statements. Attorneys are not allowed to argue during opening statements. There is a difference between opening statements and closing arguments. The words themselves convey the difference. In opening statements, the attorneys tell the jury what they will prove. In closing arguments, the attorneys can argue and attempt to persuade the jury as to how they should decide the case. While attorneys will often try to use the opening statement to argue, it really is not appropriate.
In my next post I will discuss the fourth phase of the jury trial - the Evidentiary Phase.