Wednesday, April 28, 2010

Judges and the Internet - Juror Information

By John DiMotto
In my last post, I began a discussion on how judges must be careful with respect to using the internet to obtain information as it relates to fact finding. A much more tenuous circumstance, for which there may not be a definitive answer, is the use of the internet by judges to obtain information on prospective jurors.
In most cases, the desire/need to "google" a prospective juror for information will not be present. However, if it is a case involving millions of dollars or a case in which the verdict will have far reaching ramifications on a party or an industry, having more information about prospective jurors may be critical. I am sure that lawyers may in fact be doing this, and of course, there is no impediment to them. However, whether a judge can do so raises ethical issues that must be considered. Here is a hypothetical:
Assume a judge "googles" a prospective juror and discovers that:
1) the prospective juror has blogged on an issue that is at the forefront of the case and
2) the prospective juror has set forth very strong opinions about the issue.
Assume that in response to voir dire questions the prospective juror gives answers that are totally inconsistent with statements in the prospective juror's blog.
What is the judge's obligation?
Since the prospective juror may have sworn falsely -- if in fact that blog statement was the truth and not just posturing by the prospective juror for attention -- the judge must share this information with the lawyers so it can be followed up. The lawyers will then be in a position to potentially move to strike the prospective juror for cause or at least to intelligently exercise a peremptory challenge.
A solution to this problem is to fend off the problem before it occurs.
I would suggest that at the beginning of the trial that the judge ask the lawyers if they have any objection to the judge doing a "google" search of prospective jurors if at any time during the voir dire the judge believes that doing so will contribute to a just verdict with the understanding that the judge will share the information with the lawyers. I am certain they will agree since any information obtained will be useful to all in empanelling an unbiased jury.
No judge wants to retry a case. To have accurate information and truthful answers from prospective jurors before the trial can help reduce the need for a retrial because of juror "misconduct" during the voir dire. In fact, it may prevent such juror "misconduct."

Monday, April 26, 2010

Judges and the Internet - Fact Finding

By John DiMotto
In several posts, I have discussed the issue of jurors and the internet and how "juror misconduct" involving the use of internet information during a trial will negatively impact the integrity of their verdict. Today, I would like to address the potential problems that can arise if judges seek information via the internet to assist them in their fact finding capacity.
Regardless of whether it is a jury trial where the jurors decide the facts of the case or a court trial where the judge decides the facts, judges make factual findings in all types of proceedings. For example, as a condition precedent to the introduction of expert testimony judges have to decide whether the proposed expert has sufficient qualifications. depending on the circumstances of the case, it may be tempting for a judge to do a google search on the proposed expert to see what information is available on the internet. However, a judge may not do so without notifying the lawyers of his/her intention to access internet information. The reason is that this is extraneous information not in the record.
For a judge to obtain internet information without giving the lawyers a chance to respond to may result in a legal ruling which has a dramatic effect on the trial. If the information is erroneous or faulty it negatively impacts the integrity of the proceedings. We tell jurors not to do any independent investigation of the facts. This same principle holds true for judges.
One of the most important decisions that a juror and a judge must make during a trial is a determination as to the credibility of witnesses. If a witness is not worthy of belief, the weight to be given that witness's testimony will be reduced or even non existent. When judges are fact finders they want to make the right decision regarding how to decide the credibility of each witness. A judge may want to do a CCAP (a court record search) search of an individual to see if he/she has had other cases and the outcome of those cases. For example, in a domestic violence injunction case,a judge may want to put the names of the petitioner and the respondent into CCAP to obtain a "history" of court action between the parties. If a judge were to discover that the petitioner has brought five or six previous cases which were all dismissed that could have a huge impact on how the judge might view the credibility or lack thereof the the petitioner. While it might be helpful information it is inadmissible absent notification of the judge's intention and assent by the parties to the judge doing the search.
Judges are like jurors. They want to do the right thing. They want as much information as possible in order to accomplish that goal. However, judges have the same constraints as jurors when it comes to seeking information outside the record. It should not be done.

Thursday, April 22, 2010

Judge's Demeanor During a Jury Trial

By John DiMotto
While in many proceedings it is important for the judge's demeanor to be clearly visible in order to send a message or emphasize a point, the same cannot be said of the judge's demeanor during a jury trial. At a jury trial, the judge must be totally impartial and not convey to the jury what the judge thinks about the merits of the case or what the outcome of the case should be. It is for the jury to determine the credibility of witnesses, the weight of evidence, and what inferences should be drawn from the evidence by using their common sense and long experiences in life. At a jury trial it is all about how the jury views the case in light of the law. The jury, not the judge, determines what the true facts are from all of the evidence that is presented. The jury, not the judge, determines what is believable. As the jury instructions make perfectly clear, the jury is the judge of the facts and the judge is the judge of the law only. It is critical that a judge not express or convey his/her opinions about the facts or the credibility of the witnesses or their accounts.
It can be difficult for a judge to "play it close to the vest" because in so many proceedings a judge needs to convey his/her feelings, thoughts and beliefs. For example, at sentencing, a judge comments on the nature and gravity of the crime/s. The seriousness can sometimes only be made manifest by controlled emotion. How outrageous behavior is can be emphasized by a judge expressing his/her outrage at the carnage wrought by a defendant's conduct. Comments on the character of the defendant by necessity require a judge to be judgmental about how a criminal lifestyle causes so much harm to the community, the individual victim and the defendant. In reflecting on the effect of the crime on the public requires comment on values.
Although judges in so many cases has to convey what he/she thinks, at a jury trial the opposite is true. When parties ask for a jury trial, they are asking that "the community" in the body of twelve citizens employ their common sense and determine what did or did not happen. What the judge thinks should not come into play. This is not to say that a judge sits back like a proverbial "bump on a log." The judge must control the proceedings, the lawyers -- the environment of the courtroom. However, the judge must not convey what he/she thinks of the evidence, the witnesses or the cause of either side in any manner, shape or form -- by words, glances or body language. Fact finding is the sole province of the jury.
At the end of every jury, I always spend a few minutes with the jury to thank them for their service before I excuse them from the jury room at the end of the case. I oftentimes ask them whether at any time any of them got any impression as to what I thought of the case. I am relieved to hear that they never got anything from me or my demeanor. In fact, some jurors say they were looking for any sign that might help them but never got one. I tell them that is the way it should be because their opinion, not mine, is what counts. Do I have feelings and opinions -- of course -- but I keep them to myself otherwise I would subvert the process.
In the final analysis, the judge must do his/her job and let the jury do its job.

Tuesday, April 20, 2010

Lawyer Credibility in a Jury Trial

By John DiMotto
If I have learned anything in my 35 years as a lawyer and judge, it is that one of the most important ingredients to success in litigation is lawyer credibility with the trier of fact. In a jury trial, it comes down to more than convincing the jury that your evidence is worthy of belief. You must convince the jury that they can believe YOU.
When a lawyer puts evidence before the jury, he/she is vouching for that evidence. If a lawyer wants the jury to accept it, the jury must have faith in the presenter. Juries can sense a "snake oil salesman" a mile away. While the standard Wisconsin jury instruction with respect to credibility focuses on the witnesses and the evidence, it is the lawyer who is the spokesperson, the standard bearer, for the witnesses and the evidence. This is not to say that form trumps substance. However, in most cases there is no "one answer only" when it comes to arriving at a decision regarding negligence or damages. The difference between a jury finding a plaintiff less negligent than a defendant oftentimes comes down to how convincing the plaintiff's lawyer can be in his/her analysis of the evidence. If the lawyer has no credibility, the client will have no credibility.
Lawyer credibility goes beyond just closing arguments. It permeates every aspect of the trial from voir dire, when the lawyer makes his/her first impression, from opening statement when the lawyer makes "promises" as to what he/she will prove, from the evidentiary phase when the lawyer delivers evidence, through closing argument when the lawyer tries to "connect the dots" that we call evidence. A lawyer must remember that he/she is the "face" for the case. As lawyer credibility goes so goes the case.
I have seen many a case "fail" because:
1) the lawyer was more into his/her aura than his/her cause.
2) the lawyer made such outrageous accusations/statements that you could visibly see the lawyer lose the jury.
3) the "greed" of the lawyer turned off the jury.
In the final analysis it comes down to being open, honest and, most importantly, reasonable in every aspect of the lawyer's presentation.

Monday, April 19, 2010

Civil Duty Judge

By John DiMotto

This week, in addition to my normal caseload, I will be the Daytime Civil Duty Judge. It is the responsibility of the Duty Judge to handle miscellaneous matters that don't fit neatly into the system. The judges in the Civil Division and the Family Division serve in this capacity on a rotating basis which means each judge fills this role once every 14 weeks. There is a schedule that is set every August that is in effect for one year so each judge knows far in advance when he/she is the Duty Judge. This is important because the assigned judge is asked to calendar lightly so that the Duty Judge work can be given first priority.

The types of matters that come before the Duty Judge are varied. However, the one matter we see on a daily basis (more like three or four times a day) are requests to correct mistakes on birth certificates. This usually is a situation where a person needs to get a copy of their birth certificate and they discover that their name or a parent's name is misspelled. These errors can be corrected administratively if caught within one year of the execution of the document. If it is outside one year, a court order must be obtained and filed with the Register of Deeds and the State Department of Vital Statistics. The party seeking the change must be an interested person (ie. the individual named in the document or a parent) and must present some proof that the change requested is to correct a mistake. It cannot be a change of heart. Also, information cannot be added (ie. put the name of a father on a birth certificate). Substantive changes need a more formal hearing with notice to the public.

The second type of matter that is most prevalent involve handling small claims matters. Every day in the afternoon, the small claims commissioners handle MANY eviction cases. If a landlord or tenant disagrees with the decision of the commissioner he/she can ask for an immediate review before the small claims judge. If the small claims judge is on vacation or otherwise unavailable, the Duty Judge will go to the small claims courtroom and handle the matter. Priority must be given to these cases because of their volatility. They are done on the record. They are a court trial. Usually the only witnesses are the landlord and the tenant. The burden of proof is on the landlord -- preponderance of the evidence. If the Duty Judge finds that an eviction is warranted, he/she must then determine if the tenant must vacate forthwith or if the tenant will be given some time to move out. The Duty Judge can grant a stay on the writ of restitution (eviction order) up to 28 days.

There is never a dull moment in small claims court. Most people have seen the TV show "The People's Court" and some believe they can act out just like the people on the show act out. It can be so problematic that the Small Claims court has a bailiff to keep order. Since eviction cases are handled each afternoon five days a week, it keeps the Duty Judge hopping back and forth between his/her courtroom and the small claims courtroom.

While the Duty Judge assignment does impact the judge's ordinary calendar, it is a much needed position in order to ensure that people get proper attention to their limited legal quandary.

Saturday, April 17, 2010

Involuntary Mental Commitment Final Hearings

By John DiMotto
In Wisconsin, mental health law issues are addressed in Chapter 51. The legislative policy of the State is discussed in section 51.001. It is to provide for treatment as well as to protect personal liberties of all of the State's residents. Section 51.20 specifically sets forth both the substantive and procedural law that governs Involuntary Mental Commitments in the face of legislative policy.
An involuntary commitment can commence via an emergency detention or by original petition. In order to seek involuntary commitment the petitioner -- usually an attorney for the county -- must allege that the person in need is :
1) mentally ill;
2) the mental illness is treatable, and
3) the person is dangerous
The petition must set forth facts that establish probable cause as to these three elements.
The first hearing -- a probable cause hearing -- must be held within 72 hours of detention (exclusive of Saturdays, Sundays and Holidays). The first hearing is conducted before a probate court commissioner or judge. The county has the burden of proof to show probable cause. Probable cause is evidence that raises an honest belief in a reasonable person the the person in need is mentally ill, treatable and dangerous. This burden is usually met via the testimony of two witnesses. A witness to "dangerousness" and a medical or psychological expert witness to address the mental illness and treatability issues. If probable cause is established the matter is then set for a final hearing.
The final hearing must be held within 14 days of the date of detention if the person in need is detained. Detention is hospitalization not incarceration. If the person is not detained the final hearing must be held within 28 days of the probable cause hearing. The person in need is entitled to a jury trial. The jury trial must be demanded at least 48 hours before the final hearing. If the jury demand is made within 5 days of detention then the jury must be held within 14 days of detention. If the demand is outside of 5 days from detention, the jury must be held within 14 days of the demand. Most cases are court trials. Rarely are jury trials demanded. This is because attorneys for the person in need are usually of the opinion that a judge can distinguish merely bizarre conduct from the actions of a mentally ill dangerous person. In my three plus years doing probate cases, I have done two jury trials. In the first case the jury found that the person in need was not dangerous and involuntary commitment was denied and the case dismissed. In the second case, the jury found that the county produced evidence that was clear and convincing (the burden of proof for these cases) that the person in need was mentally ill, treatable and dangerous.
In Milwaukee County, the non jury final hearings are held on Friday mornings. A judge must preside over the final hearing. Right now, they are handled by reserve judges. This is because there are only two probate judges and they have a mixed civil/probate calendar. I am currently the Presiding Judge in the Probate subdivision of the Civil Division. Judge Mel Flanagan is the other probate judge. However, starting in June, we are each going to do one Friday a month and the other two Fridays will be done by Reserve Judges who presently do hearings every Friday. If a jury is demanded it is held on either a Monday or Wednesday and done by myself or Judge Flanagan.
These are very sad cases. The people who are subject to these petitions are oftentimes very, very mentally ill. They are very needy on many levels. All resources are directed to help them help themselves. The goal of the system is to provide services and release these persons back into the community as soon as possible.

Wednesday, April 14, 2010

Juror Internet Misconduct

By John DiMotto
In the world of legal blogs, a very hot topic right now is juror misconduct via use of the internet.
I have a twitter account and I follow a number of people who study and report on this issue. It seem like every day there is a tweet about a case somewhere in the country where a juror accessed information via the internet which was discovered post trial and is now the basis for a new trial request. The critical question is, can this misconduct be avoided? My short answer is "yes." (And, I do not believe that this answer is an example of naivete.)
I say this because I am generally a trusting person. I believe that if a judge can create a bond of trust with each juror during voir dire that the jurors will listen to the judge and follow the judge's directions and admonitions. To establish this bond of trust, the judge must make sure that he/she relates on an individual basis with each juror during the voir dire. There must be some one on one time in open court with each juror. In so doing, the judge not only establishes a relationship with that juror but all of the other jurors witness it and can see that the judge truly does care about each juror and the jury as a whole. I say this because at the end of each jury, I talk with the panel and ask them for feedback on what I can do to make the jury experience a better one for future juries. Invariably, I am told by the jurors that they appreciated how I interacted with them individually and as a body. They express how much they valued the information I gave to them about the process and their role. Most importantly, they cared about doing what was right. In that vein, I ask them whether it was difficult for them to stay off the internet, etc. and they tell me while it may have been tempting to want to seek out information that they resisted doing so because they did not want to jeopardize the integrity of their verdict -- something that I constantly stressed during the trial.
Repetition is so very important in many aspects of life, particularly during a jury trial. At the beginning of the trial and give the following admonition to the jury, and I tell them that I will in fact repeat it every time we take a break -- so much so that they will probably be able to repeat it verbatim by the end of the trial:
"Remember this admonition; you may not discuss this case among yourself or with anyone else; it is premature to do so until this case is given to 12 of you for your final deliberations in the seventh and final phase of trial.
When you leave and return to the courtroom during breaks or at the beginning and end of the day, avoid contact with the lawyers, parties and witnesses and they know they should avoid contact with you.
Do not do any research about the case, the issues in the case, the parties or lawyers or witnesses in the case. This means you should not consult with any books or reference materials nor may you go on the internet to seek out information. You may not communicate with anyone in person, through any electronic device or on the internet in any manner, shape or form including social networking.
Everything you need to do your job as jurors will be provided to you within the four walls of the courtroom. You will be presented with all of the evidence here. You will be instructed on the applicable law that you must apply to the evidence here. You will bring your common sense and long experiences in life with you here.
If you do anything outside of the courtroom you will negatively impact the integrity of the verdict you return and it will result in the parties having to retry the case at great expense to them and to the taxpayers of this community."
Yes, I repeat this time and time again, and when I talk with the jurors at the end of the trial they tell me that it really impressed upon them how "sacred" there role is and that they did not want to violate it.
The bottom line is that juror internet misconduct can be averted and avoided if the judge does his/her job and an important part of that job is establishing trust.

Monday, April 12, 2010

Recreational Use Immunity

By John DiMotto
In my last post, I addressed Governmental Immunity. Today, I would like to look at Wisconsin's Recreational Use Immunity.
Wisconsin Statutes section 895.52 sets forth Wisconsin's policy to encourage landowners to open their property for recreational activities. The policy provides that no owner owes:
1) a duty to keep the property safe for recreational activities.
2) a duty to inspect the property.
3) a duty to give warning of an unsafe condition, use or activity on the property.
Of course, there are exceptions to this general policy:
1) There is no immunity for State or other governmental bodies for death or injury that occurs on property at any event for which the owner charges an admission fee for spectators.
2) There is no immunity for a nonprofit organization for death or injury caused by a malicious act or a malicious failure to warn against unsafe conditions which occurs on the property.
3) There is no immunity for the owner of private property which is used for recreational activities:
a) if the property owner collects money, goods or services in payment for the use of the private property for recreational activities during which death or injury occurs where the aggregate of payments exceeds $2,000.
b) if death or injury is caused by the malicious failure of the private property owner to warn against an unsafe condition.
c) if death or injury is caused by a malicious act of the private property owner.
d) if death of injury is to a social guest who has been invited by the private property owner for a specific occasion if it occurs on platted land, residential property or property within 300 feet of a building on land classified as commercial.
e) if death or injury is sustained by an employee of the private property owner acting within scope of employment.
Recreational activity is defined very broadly in 895.52(1)(g). It generally encompasses "unorganized" recreations.
In essence, this recreational immunity attaches when the owner's act is related to the maintenance and condition of the land.
Case law has given explanations and expansions to definitions. As is the case in all areas of the law, nothing is black and white. Everything comes in shades of gray.
Recreational use immunity recognizes that, in the final analysis people are responsible for their own actions and that landowners who generously make their property open to others to "recreationally express" themselves will not be punished if a person pursuing recreation is hurt on the property. This addresses the old adage "no good deed goes unpunished" and provides that good deeds will not be punished.

Thursday, April 8, 2010

Governmental Immunity from Lawsuits

By John DiMotto
While a person who feels aggrieved by the conduct of another person/s has a right to seek legal redress, not all lawsuits may proceed. There are circumstances where a person engages in some conduct that causes harm yet a lawsuit will not be allowed. One such circumstance involves governmental officials, officers, agents and employees for acts done in their official capacity or in the course of their agency or employment. This is called Governmental Immunity. It is addressed in Wisconsin Statutes section 893.80.
Governmental immunity has several components:
First, there are strict time limits that must be followed in terms of giving notice to a governmental body - within 120 days of the event unless the claim is for recovery of damages for medical malpractice. Here, the time limit is within 180 days after discovery of the injury.
Second, government has 120 days to disallow the claim. If no action is taken by the government within that time frame, the aggrieved person has 6 months in which to commence an action. This operates as a statute of limitations.
Third, there are limits on a tort damage award for death or injury - $50,000 ($25,000 as to a volunteer fire company). No punitive damages are recoverable.
Fourth, no lawsuit may be based on acts that constitute intentional torts or for discretionary governmental acts. However, lawsuits are allowed if the conduct/acts involve a known danger, a ministerial duty or "professional" acts as opposed to governmental acts (medical decisions).
Fifth, governmental immunity does not prevent lawsuits for breach of contract or motor vehicle accidents or medical decisions or actions for declaratory relief or nuisance.
The purpose behind governmental immunity is to ensure that public officials, officers, agents and employees will not be hesitant to make decisions and do their job for fear of being sued. Governmental immunity provides a balance between governmental interests and private interests.

Wednesday, April 7, 2010

Negligence-Contributory Negligence-Comparative Negligence in Wisconsin

By John DiMotto
In most negligence based law suits the case is not just about whether the defendant was negligent, rather it is also about whether the plaintiff was also negligent, that is, did the conduct of the plaintiff contribute to cause the accident and the attendant injuries. It does not matter whether it is a multiple vehicle automobile accident, a motor vehicle-pedestrian accident, a slip and fall on private or commercial property or even a dog bite case.
In Wisconsin, every person owes a duty of ordinary care to himself/herself and to every other person in the world. (The minority view from the Palsgraf case.) Ordinary care is that degree of care that a reasonable person would exercise in the same or similar circumstances. It is because of this definition that judges instruct juries to use their common sense and long experiences in life in evaluating conduct. For example, when a driver is approaching an intersection with the green light in his/her favor, the driver must still keep a careful lookout upon entering the intersection to make sure that a reckless driver isn't about to "blow a red light." While the driver "blowing the red light" is usually found most negligent in causing the accident, the driver with the green light may be found to be contributorily negligent to some degree.
Contributory negligence is addressed in Wisconsin Statutes section 895.045. This statute modified common law. Under common law any negligence on the part of the plaintiff precluded recovery. Under 895.045, the negligence by the plaintiff is compared with that of the defendant to determine what, if any, recovery the plaintiff will receive. This is the concept of comparative negligence. What this means is that if the defendant is found to be 80 % negligent and the plaintiff is found to be 20 % negligent, the plaintiff will recover 80 % or any damage award. If the plaintiff and the defendant are equally negligent (50 % - 50 %), the plaintiff will recover 50 % of any damage award. However, if the plaintiff is more negligent than the defendant, the plaintiff recovers nothing. So, if the plaintiff is 51 % negligent and the defendant is 49 % negligent, plaintiff collects nothing. Also, if there are multiple parties, the plaintiff can only recover from each defendant in relation to that defendant's percentage of negligence unless that particular defendant is over 50 % negligent. So, if the plaintiff is 20 % negligent, defendant 1 is 40 % negligent and defendant 2 is 40 % negligent. while the defendant can collect 80 % of the damage award, the plaintiff can only collect up to 40 % from each. If defendant 1 is judgment proof, the plaintiff will never get more than 40 % - from defendant 2. However, if plaintiff is 20 % negligent, defendant 1 is 55 % negligent and defendant 2 is 25 % negligent, plaintiff can recover the entire 80 % from defendant 1. The "modified comparative negligence" position of Wisconsin attempts to provide fairness to all parties.

Tuesday, April 6, 2010

Personal Injury Lawsuits - Dog Bite Cases

By John DiMotto
Another type of personal injury lawsuit that is filed in the trial courts in Wisconsin involves injuries cause by dogs, commonly referred to as a Dog Bite case.
The Wisconsin legislature has devoted an entire Chapter in the Wisconsin Statutes to dogs. Chapter 174 addresses various dog related issues. It even provides a criminal penalty for those who violate its provisions (a fine of up to $500 or imprisonment for up to 60 days or both).
Section 174.02 sets forth the general principals of an owner's liability for damage caused by a dog. It provides that an owner is liable for the full amount of damages cause by a dog injuring or causing injury to a person, domestic animal or property for a first offense and double damages if the owner was notified or know that the dog had previously injured or caused damage. In addition to being civilly liable to an injured party, the section also provides for a forfeiture for such injuries or damages.
The civil liability for a "dog bite" is on an owner for a dog. Owner includes anyone who owns, harbors or keeps a dog. This expanded definition has made for some interesting cases. For example, a landlord who allows a tenant to have a dog does not "harbor" the dog and so is not liable for damages. However, a "keeper" is a person who exercises some measure of custody, care or control over the dog. In some instances an owner may sue a keeper.
174.02 is a strict liability statute when the injured party is not an owner or keeper. This means that the mere fact of the injury creates liability. There is no obligation on the injured person to establish a duty of care and breach of that duty. The bite itself creates liability. However, while there is strict liability for a dog bite, the laws of comparative negligence do apply just as in other personal injury lawsuits. The injured party does have an obligation to exercise ordinary care in his or her actions.
In addition to being civilly liable for a dog bite, there are provisions for putting a dog down who is a two time biter. This requires the state or a municipality to file a civil action seeking a court order to kill the dog. This is an extreme measure which is reserved for the most egregious circumstances.
The bottom line is that if you own a dog, you must control your dog or may have to pay the consequences.

Saturday, April 3, 2010

Happy Easter

I have been super busy with a personal injury motor vehicle-pedestrian accident for the past two weeks and have had limited time to blog. Case should wrap up next week and I will return to my review of the various types of personal injury lawsuits filed in the trial court.

Happy Easter to all.