Monday, February 21, 2011

Summary Judgment Procedure in Wisconsin

By John DiMotto
When a person files a civil lawsuit to seek redress from what he/she perceives to be an injustice, that person is usually entitled to a trial on the merits. I say "usually" because there is a circumstance where a person is denied the right to a trial. That "circumstance" is when there is no genuine issue of material fact a person is NOT entitled to a trial. Whether this "circumstance" is present is determined by Summary Judgment.
Chapter 802 of the Wisconsin Statutes addresses "Pleadings, Motions and Pretrial Practice." One of the motions that Chapter 802 addresses is the Motion for Summary Judgment.
802.08(1) sets forth that a party:
"...may move for summary judgment on any claim, counterclaim, cross claim or 3rd party claim which is asserted by or against the party".
802.08(2) sets forth that:
"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue to the amount of damages."
802.08(3) sets forth that:
"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence."
802.08(5) sets forth that:
"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees."
Finally, 802.08(6) sets forth that:
"If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor."
In order to ensure that summary judgment is not abused, appellate courts have set forth principles to be embraced by the trial court.
Summary judgment is only available when "there is nothing to try." When brought by a defendant, it is akin to a motion for dismissal at the end of the plaintiff's case if there is not credible evidence in support of the elements the plaintiff must prove. see Transportation Ins. Co. v. Hunzinger, 179 Wis.2d 281 (Ct. App. 1993)
The party with the burden of proof at trial in connection with a claim has the burden to show that there is a genuine issue of material fact that requires a trial on that claim. This burden can be met by reasonable inferences drawn from circumstantial evidence. Submissions are to be examined in the light most favorable to the nonmoving party. see Tomson v. American Family Ins. Co., 321 Wis.2d 492 (Ct. App. 2009).
An issue of fact is genuine if a reasonable jury could find for the nonmoving part. A material fact is such a fact that would influence the outcome of the controversy. see Marine Bank v. Taz's Trucking Inc., 281 Wis.2d 275 (2005).
A case founded only on hunches and speculation rather than evidence will not justify a trial. see Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 863 (Ct. App. 2008).
Courts do not make findings at the summary judgment stage. Summary judgment methodology prohibits the trial court from making findings of fact. The trial court does not weigh the evidence or determine credibility of evidence. see Continental Casualty v. Milwaukee Metropolitan Sewerage District, 175 Wis.2d 527 (Ct. App. 1993).
While summary judgment is considered a drastic remedy which should not be granted when material facts are in dispute, without a doubt a trial court can and should grant summary judgment in those instances where the controlling material facts are not in dispute and the application of the law to the facts is not doubtful. see Town Bank v. City Real Estate Development LLC, ___Wis.2d___, 2010 WI 134.
Summary judgment should not be granted unless material facts are not in dispute, no competing inferences can arise and the law that resolves the issue is clear. see Tele-Port v. Ameritech Mobile Communications, 248 Wis.2d 846 (Ct. App. 2001).
When a motion for summary judgment is brought, the adverse party may not rest on mere allegations or denial in the pleadings but must set forth evidence. The opponent to summary judgment does not have the luxury of resting upon allegations or denials but must advance specific facts showing the presence of a genuine issue of material fact. see Schreiner v. Wieser Concrete Products, Inc. 294 Wis.2d 832 (Ct. App. 2006).
Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. see In rel Paternity of Taylor R. T., 199 Wis.2d 500 (Ct. App. 1996).
A question of law is suitable for summary judgment. see Public Service Corporation v. Heritage Mutual Ins. Co., 200 Wis.2d 821 (Ct. App. 1996).
Summary judgment can resolve legal issues and contract construction. see Meyer v. City of Amery, 185 Wis.2d 537 (Ct. App. 1994).
As you can see from the the declarations of appellate courts, if there is a dispute of material fact or if a contract is ambiguous, a trial court should never grant summary judgment. If there is a question of credibility, summary judgment cannot be granted. If there is evidence "to be weighed," summary judgment cannot be granted. Summary judgment is not a substitute for a trial but a mechanism to resolve a lawsuit where there is not dispute of fact or law.

Wednesday, February 16, 2011

Daubert in Wisconsin -- Seismic or Subtle?

By John DiMotto
Over the past 16 days since, since the Daubert Rule took effect in Wisconsin, I have had numerous conversations with my colleagues about whether this evidentiary rule change will be seismic or subtle. Based on those conversations and my review of statutes and case law, I have come to the "preliminary opinion/conclusion" that it will be subtle because of the considerable overlap between concepts of relevancy and reliability. Let me explain.
Black's Law Dictionary, 5th Edition, defines relevancy as follows:
"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. Two facts are said to be relevant to each other when so related that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."
"Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue."
"Relevancy of evidence refers to its probative value in relation to the purpose for which it is offered. ... Term describes the logical relationship between a proffered item of evidence and a proposition that is material or provable in a given case."
Black's Law Dictionary, 5th Edition, defines reliable as follows:
"Trustworthy, worthy of confidence."
I believe that these two definitions must be read together and, if done, the reader will arrive at the inescapable conclusion that to be "relevant" the evidence in question must, in some measure, be "reliable." How can evidence be "probative", that is, "have the effect of proof" or the ability to "prove a fact or hypothesis" unless it has reliability?
I believe that an examination of Wisconsin statutory and case law reinforces my opinion/conclusion/proposition that to be relevant, evidence must have reliability.
The Wisconsin Rules of Evidence address "relevant evidence" in 904.01 The definition is in accord with the definition of relevancy in Black's Law Dictionary. It sets forth:
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
If evidence is to have "any" tendency to make something "more" or "less" probable, doesn't the evidence to have some indicia of reliability?
In State v. Payano, 320 Wis.2d 348 (2009), the Wisconsin Supreme Court reiterated that relevance has two components:
1) The evidence must go to a consequential proposition and,
2) The evidence must make the consequential proposition more probable or less probable.
If the evidence can make the consequential proposition more or less probable, doesn't it stand to reason that it must be reliable?
In State v. Ross, 260 Wis.2d 291 (Ct. App. 2003), the Court of Appeals, in addressing the concept of relevancy stated:
"In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case."
In order for the evidence to make the logical or rational connection, doesn't it stand to reason that it must be reliable?
In Winnebago County v. Harold W., 215 Wis.2d 521 (Ct. App. 1997), the Court of Appeals, in addressing relevancy stated:
"Relevancy is an elastic concept which must be assessed in light of the nature of the proceedings."
Doesn't this definition imply the need for the evidence to have some reliability? And, if it does, then shouldn't it be admitted and let the trier of fact give it such weight as it deems the evidence is entitled to receive?
Finally, I believe that a re-reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), supports my opinion/conclusion/proposition.
1) SCOTUS stepped back from the rigid "general acceptance" rule of Frye.
a) The drafting history of Rule 702 makes no mention of Frye and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the tradition barriers to 'opinion' testimony.
2) SCOTUS held that the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issue.
However, and most significantly,
3) SCOTUS made it clear that:
a) This is a flexible inquiry;
b) Rule 702 will not create a "free for all"; and,
c) [1] Vigorous cross examination, [2] presentation of contrary evidence and [3] careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.
I believe that SCOTUS intended to make the introduction of expert testimony easier.
I believe that the thrust of Daubert is that SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.
I believe that while the Wisconsin Walstad Relevancy Rule is more liberal than the Daubert Reliability Rule, that the differences are not very great and that Daubert will not dramatically change the landscape when it comes to the introduction of expert testimony.
In terms of the necessity for and extent of 901.04 (1) hearings, I believe that trial judges need not "re-invent the wheel" when it comes to the qualifications of the expert and the expert principle at issue. If the expert and/or the principle have previously been litigated, I believe that the trial court can rely on "past precedent." For example, I do not think any judge need conduct an extensive hearing as to whether DNA evidence will be admissible. I believe that the reliability of DNA evidence has been decided. With respect to other areas there may be a need for 901.04(1) hearings. However, the trial judge must be mindful that, based on the strong language in Daubert, the threshold for admissibility is a low one. Trial judges must always remember that, for the most part, "weight of evidence" is left to the sound decision of the trier of fact.
Seismic or subtle?
I say subtle.

Monday, February 7, 2011

Daubert In Wisconsin -- Initial Applicability to Criminal and Civil Cases

By John DiMotto
2011 Wisconsin Act 2, which became effective on February 1, 2011, brought the Daubert "Reliability"Rule with respect to the introduction of expert evidence to Wisconsin, replacing the Walstad "Relevancy" Rule. A crucial question that the legislation has prompted is whether the Daubert Rule applies prospectively in all cases commenced on the effective date of the act or just civil cases. An attempt to answer this questions raises more questions.
Initial Applicability
Section 45 of the bill addresses the initial applicability of the various provisions in the bill. As it pertains to the Daubert Rule (907.01 - 907.03) the legislation reads as follows:
"Section 45(5) CIVIL ACTIONS. The treatment of ...907.03, the renumbering and amendment of sections 907.01 and 907.02 of the statutes, and the creation of sections 907.01(3) and 907.02(2) of the statutes first apply to actions or special proceedings that are commenced on the effective date of this subsection."
Is this a definitive statement that the Daubert Rule applies only to civil cases commenced after January 31, 2011, that is, prospectively, but that it applies to all criminal cases that is, "retroactively" as well as "prospectively" regardless of when they are commenced?
In order to seek out an answer to this question, it is necessary to look at statutory language and case law regarding construction of laws.
Statutory Construction
Chapter 990 is entitled "Construction of Statutes." 990.001(6) addresses statutory titles and history notes. It specifically states:
"The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes."
Does this means that the title to (5): "CIVIL ACTIONS" is not technically part of the statute and not to be given any weight? If it is not part of the law, does that mean that the Daubert Rule which applies to "actions and special proceedings" applies to criminal actions as well as civil actions which are commenced after January 31, 2011, that is "prospectively" and not "retroactively?"
Case Law
In Betthauser v. Medical Protective Co., 172 Wis.2d 141 (1992), the
Wisconsin Supreme Court referenced that:
"The general rule in Wisconsin is that legislation is presumptively prospective unless the statutory language clearly reveals either expressly or by necessary implication an intent that the statute apply retroactively."
In Steffen v. Little, 2 Wis.2d 350 (1957), the Wisconsin Supreme Court set forth that:
"While statutes in general are construed prospectively the rule is otherwise with statutes whose operation is procedural or remedial."
However, the Court also recognized that:
"it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment." see State ex rel. Schmidt v. District No. 2 (1941), 237 Wis.186.
Daubert Rule
Four more questions that are prompted by 990.001, Betthauser and Steffen are:
1) Does 990.001 evince an intent that the statute apply retroactively to criminal cases?
2) Is the Daubert Rule procedural or remedial?
3) Would retroactive application impair contracts or disturb vested rights?
4) Did the legislation intend to have a Rule apply differently with respect to civil cases vis a vis criminal cases?
These are questions that will undoubtedly be raised and which must be addressed by courts throughout Wisconsin in the coming months.