tag:blogger.com,1999:blog-50777747592890522262024-03-18T14:09:40.627-05:00Bench and Bar ExperiencesA blog to record and convey the daily experiences of a Milwaukee County Circuit Court Judge.John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.comBlogger186125tag:blogger.com,1999:blog-5077774759289052226.post-83071880993603743122015-07-16T16:05:00.000-05:002015-07-16T16:05:54.812-05:00"Shall" -- Mandatory or Directory?<div style="text-align: center;">
By</div>
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Hon. John J. DiMotto</div>
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<b>Legal Definition of "Shall"</b></div>
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According to Black's Law Dictionary, the term "shall" is defined as follows:</div>
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"As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears."</div>
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If the reader stops reading at this point, the reader might think that "shall" must always mean "shall." However, one must read on. The definition goes on to say:</div>
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"But it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense."</div>
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So, "shall" does not always mean "shall." "Shall sometimes means "may."</div>
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In Wisconsin, the meaning of the word "shall" has been the subject of litigation.</div>
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<b>Case Law Construction of "Shall"</b></div>
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<b> </b>In <i>Karow v. Milwaukee County Civil Service Commission, 82 Wis.2d 565 (1978), </i>the Milwaukee County Sheriff filed a complaint against the plaintiff, a Milwaukee County Deputy Sheriff. On the date the complaint was filed the plaintiff was suspended without pay. A hearing was set before the Civil Service Commission within three weeks of the date of suspension to comply with sec. 63.10(2) which set forth that "The Commission <b>shall</b> appoint a time and place for the hearing of said charges, the time to be within 3 weeks after the filing of the same..." Due to an illness suffered by the assistant corporation counsel representing the defendant, the County asked that the hearing be postponed beyond the three week time frame. Over objection of the plaintiff, the hearing was adjourned beyond the three week time frame. After the plaintiff filed for a writ of mandamus, the case was dismissed. On appeal the defendant argued that the three week time limit on holding the hearing was merely directory because pursuant to its rule making power, the Commission had promulgated a rule which provided that for cause shown, the hearing could be beyond the three week statutory time limit. The Wisconsin Supreme Court did not agree. In its decision, the Court stated: </div>
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1) The general rule is that the word "shall' is presumed mandatory when it appears in a statute.</div>
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2) When the words "shall" and "may" are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.</div>
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3) The word "shall" can be construed as directory if necessary to carry out the legislature's clear intent.</div>
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4) Statutes setting time limits on various activities have often been held to be directory despite the use of the mandatory "shall," where such a construction is intended by the legislature.</div>
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5) A statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation. </div>
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6) A time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury. But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory.</div>
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In addition to the above, the Court went on to address a number of other factors to be considered in determining the legislature's intent when presented with the word "shall" in the context of time limits. They include:</div>
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1) Omission of a prohibition or penalty.</div>
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2) Consequences resulting from one construction or another.</div>
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3) The nature of the statute, the evil to be remedied and the general object sought to be accomplished by the legislature.</div>
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<b>Conclusion</b></div>
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<b> </b>When an issue arises as to the statutory construction of the word "shall," it is necessary to determine what the legislature intended. In order to determine the clear intent of the legislature, one must resort to an application of the principles and factors set forth in <i>Karow </i>to the facts of the case in light of the language of the statute. </div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-80016724131979459492015-06-17T15:17:00.000-05:002015-06-17T15:17:34.201-05:00The Preclusion Doctrine<div style="text-align: center;">
By</div>
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<div style="text-align: center;">
Hon. John J. DiMotto</div>
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The Preclusion Doctrine is a legal principle that precludes or estops a party from pursuing a lawsuit against another party based on a prior lawsuit. The Preclusion Doctrine exists in two fields: </div>
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Claim Preclusion and Issue Preclusion.</div>
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CLAIM PRECLUSION</div>
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Under claim preclusion, also referred to as res judicata, a final judgment is conclusive in all subsequent actions between the same parties or their privies as to all matters which were litigated or which might have been litigated in the former proceedings. To apply, this Doctrine requires: </div>
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1) An identity of parties or their privies;</div>
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2) An identity of causes of action in the two cases; and</div>
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3) A final judgment on the merits in a court of competent jurisdiction in the first action.</div>
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<i>Town of Delafield v. Winkelman, 269 Wis.2d 109 (2004).</i></div>
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ISSUE PRECLUSION</div>
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Issue preclusion, also referred to as collateral estoppel, is designed to limit the relitigation of issues that have been actually litigated in a previous action.</div>
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Issue preclusion is much narrower than claim preclusion: </div>
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1) Identity of parties is not required;</div>
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2) It can be used offensively -- to bring a suit or defensively -- to stop a suit.</div>
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3) The threshold prerequisite in order to be precluded from relitigating an issue is that a party must have "actually litigated" it previously.</div>
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4) It must comport with principles of fundamental fairness.</div>
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<i>Paige K.B. v. Steven G.B.,</i> 226 Wis.2d 210 (1999).</div>
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In undertaking its "fundamental fairness" analysis, there are five factors that the court can consider:</div>
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1) Could the party against whom preclusion is sought have obtained review of the judgment?</div>
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2) Is the question one of law that involves two distinct claims?</div>
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3) Do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue?</div>
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4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second? or</div>
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5) Are matters of public policy and individual circumstances involved that would render application of issue preclusion fundamentally unfair?</div>
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Factors 1, 2 and 4 present questions of law for the Court.</div>
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Factors 3 and 5 fall within the trial courts discretion.</div>
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<i>Estate of Rille v. Physicians Ins. Co., 300 Wis.2d 1 (2007)</i></div>
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CASE LAW</div>
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Let's look at how courts have construed the application of the Preclusion Doctrine in a few real life scenarios.</div>
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In <i>Masko v. City of Madison, 265 Wis.2d 442 (Ct. App. 2003)</i>, the plaintiff tried a traffic matter in municipal court and lost. Plaintiff then brought a civil action for damages in circuit court. The trial court dismissed the case based on issue preclusion. The Court of Appeals affirmed the trial court holding that the issue of liability was fully litigated in the municipal court traffic ticket case and therefore it could not be relitigated in a civil tort action for damages. The Court indicated that preclusion derives from the assumption that, in fairness to the defendant, there is a point at which litigation involving the particular controversy must end. The doctrine may apply even if the cause of action in the second suit is different than the first suit. However, the issue must actually have been litigated and the party seeking preclusion bears the burden of proof in that regard. Here, there was sufficient identity of interest and preclusion comports with fundamental fairness.</div>
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In <i>Randall v. Felt, 256 Wis.2d 563 (Ct. App. 2002)</i>, the plaintiff, filed an inventory in the Estate of Felt, but did not include two accounts that plaintiff contended were joint accounts with right of survivorship. These accounts were set up while the decedent was under a guardianship. The defendant objected. The probate court conducted a hearing but took no testimony and ruled that the guardianship precluded any argument about the competency of a ward to give joint tenancy in property. The issue in the case was whether the issue regarding the accounts had actually been litigated in the guardianship proceeding. Here, the Court of Appeals stated that the threshold prerequisite in order to be precluded from relitigating an issue is that a party must have "actually litigated" it previously. The court further stated that an issue is "actually litigated" when it is properly raised by pleadings or otherwise and is submitted for determination and is determined. In this case, the Court of Appeals held that there never was actual litigation of the account issue in the guardianship case and thus issue preclusion dictates were not met and did not apply to bar litigation over the accounts.</div>
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In <i>Paige K.B., supra, </i>the plaintiff sued her father for battery and intentional infliction of emotional distress for sexually assaulting plaintiff. Plaintiff sued her paternal grandparents for negligence in failing to properly supervise their son and alleging that they negligently inflicted emotional distress upon plaintiff. The father was convicted of sexual assault in his criminal case. The trial court precluded the grandparents from litigating the sexual assault issue. Here, the Supreme Court reversed the trial court's decision. The Court determined that the grandparents were not so closely aligned with their son that they represent the same legal interest and that there was not sufficient identity of interest to comport with due process citing to Restatement (Second) Judgments sec 85.</div>
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In <i>Mrozek v. Intra Financial Corp., 281 Wis.2d 448 (2005),</i> in determining whether an issue was "actually litigated", the Court held that a guilty plea does not constitute issue preclusion. A guilty plea is not the same as a fully litigated trial between adversarial parties resulting in the fact finder determining that the facts prove the defendant committed the crime.</div>
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In <i>City of Sheboygan v. Nytsch, 296 Wis.2d 73 (Ct. App. 2006),</i> the Court of Appeals held that the City was not precluded from litigating a probable cause to arrest issue finding that the proceedings at a Department of Transportation Administrative Hearing on the suspension of the defendant's license did not constitute actual litigation. In a footnote, the Court cites to Restatement (Second), Judgments sec 27 that holds that an issue is not actually litigated if it is the subject of a stipulation.</div>
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In <i>Wisconsin Public Service Corp. v. Arby Construction, 342 Wis.2d 544 (2012), </i> the Court set forth that claim preclusion exists to prevent endless litigation and that under claim preclusion a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were or might have been litigated in the former proceeding. Further, that in the claim preclusion scenario, the court looks beyond form of the pleading to the substance of the pleading. The Court also indicated that claim preclusion is a rule of public policy and of private benefit to individual litigants and that the protection from the annoyance of repeated litigation which the individual sector is afforded is an incident of the first principle that the best interest of society demands that litigation be concluded.</div>
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In <i>Kruckenberg v. Harvey, 279 Wis.2d 520 (2005),</i> the Court set forth that Wisconsin uses a "transactional approach" to determine if there is identity of causes of action in the two suits. The Court further stated that under claim preclusion, a valid final judgment extinguishes all rights to remedies against a defendant with respect to all or any part of the transaction or series of connected transactions out of which the action arose. The Court also proferred that although fairness is an element in the Doctrine of Issue Preclusion, the Court has not adopted fairness as a factor in the Doctrine of Claim Preclusion. However, the concept of fairness does underlie both.</div>
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In <i>Northern States Power Co. v. Bugher, 189 Wis.2d 541 (1995), </i>the Court set forth that claim preclusion is designated to draw the line between meritorious claims and vexatious, repetitious and needless claims.</div>
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CONCLUSION</div>
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The Preclusion Doctrine stands for the proposition that once litigation is commenced that all causes of action that relate to the transaction should be pursued so that at the end of the case all issues are resolved and finality achieved. One might say: "Do It Once: Do It Right."</div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-56689504417726267472015-04-03T08:49:00.001-05:002015-04-03T08:49:16.743-05:00Determining Credibility of Witnesses and the Weight of Evidence <div style="text-align: center;">
By</div>
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<b>Hon. John J. DiMotto</b></div>
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In every trial, in order to arrive at a verdict, the trier of fact - the judge in a court trial and the jurors in a jury trial - must assess the credibility of the witnesses and determine the weight of the evidence. It requires the trier of fact to determine what the truth is and who is telling the truth. </div>
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In the typical trial, there may be a huge discrepancy in what the victim of a crime says happened and in what the defendant says happened. For example, in a sexual assault case the victim may testify that the defendant engaged in sexual intercourse by the use of threats and without consent while the defendant may testify that what occurred was completely consensual. Both versions can not be true, yet the trier of fact must make a credibility determination. This can be particularly difficult in a case where there is no physical evidence and no outside witnesses. So how does the trier of fact arrive at is conclusion? In Wisconsin, we get guidance from case law and jury instructions.</div>
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<b>Jury Instruction on Credibility</b></div>
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<b> </b>In Wisconsin, there is a judicial criminal jury instruction committee and a judicial civil jury instruction committee who have addressed the issue of credibility and they have adopted the same language for criminal and civil cases. </div>
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The instructions set forth that:</div>
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1) It is the <b>duty</b> of the jury to scrutinize and to weigh the testimony of witnesses and</div>
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2) To determine the effect of the evidence <b>as a whole</b>.</div>
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The instruction tells the jury to do this it should consider the following factors:</div>
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1) Whether the witness has an <b>interest or lack of interest</b> in the result of the trial.</div>
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2) The witness' <b>conduct, appearance and demeanor </b> on the witness stand.</div>
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3) The <b>clearness or lack of clearness</b> or the witness' recollections.</div>
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4) The <b>opportunity</b> the witness had for <b>observing</b> and for <b>knowing</b> the matters the witness testifies about.</div>
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5) The <b>reasonableness</b> of the witness's testimony.</div>
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6) The apparent <b>intelligence</b> of the witness.</div>
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7) <b>Bias or prejudice</b> if any has been shown.</div>
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8) Possible <b>motives for falsifying testimony</b>.</div>
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9) All other facts and circumstances during the trial which tend either to <b>support</b> or <b>discredit</b> the testimony.</div>
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The jury is further instructed that:<br />
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1) The weight given to the evidence is not to be decided merely according to the <b>number</b> or witnesses on each side.<br />
2) The jury may find that one witness' testimony is entitled to greater weight than that of another witness or even several other witnesses.<br />
3) The jury may take into account matters of <b>common knowledge, observations and experiences </b> in the affairs of life.<br />
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The jury is also told to give to the testimony of each witness the <b>weight</b> the jury believes it should receive.</div>
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Finally, the jury is told that:</div>
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1) There is no <b>magic </b>way to evaluate testimony, rather</div>
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2) The jury should use its <b>common sense and experience</b>.</div>
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3) In everyday affairs jurors determine for themselves the reliability of things people say and that they should do the same thing as jurors.</div>
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This instruction is an excellent tool to be used in assessing credibility. This instruction is based on case law.</div>
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<b>Case Law on Credibility</b></div>
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<b> </b>In <i>Geise v. American Transmission Co.,</i>355 Wis.2d 454 (Ct. App. 2014), the court set forth that it is the jury who determines the credibility of witnesses, resolves conflicts in testimony, weighs the evidence and draws reasonable inferences from the evidence.<br />
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<b> </b>In <i>Jezeski v. Jezeski,</i> 316 Wis.2d 178 (Ct. App. 2008), the court stated that it is the fact finder who:<br />
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1) Gauges the credibility of witnesses and the persuasiveness of their testimony. <br />
2) Resolves conflicts and inconsistency in evidence.<br />
3) May believe some testimony of one witness and some testimony of another witness even though their testimonies, read as a whole, may be inconsistent.<br />
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Furthermore, on appeal, unless testimony is inherently incredible, an appellate court may not substitute its judgment for the judgment of the fact finder.<br />
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In <i>Dickman v. Vollmer, </i>303 Wis.2d 241(Ct. App. 2007), the court stated that an appellate court will not second guess the trial court's reasonable factual inferences. It must give deference to the fact finder's conclusions.<br />
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<b> </b>In <i>Pries v. McMillon, </i>314 Wis.2d 706 (Ct. App. 2008), the court reiterated that the fact finder is "the ultimate arbiter of both the credibility of witnesses and the weight to be given to each witness' testimony.<br />
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<b> </b>In <i>State v. Marinez, </i>331 Wis.2d 568 (2011), the court set forth that a witness' testimony is always consequential within the meaning of 904.01 [the concept of relevancy].<br />
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<b> </b>In <i>Teubel v. Prime Development Inc., </i>249 Wis.2d 743 (Ct. App. 2002), the court indicated the the reason the fact finder is the final arbiter of credibility of witnesses and the weight to be given to each witness' testimony is because the fact finder has had the opportunity to observe the witnesses and assess their demeanor.<br />
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<b> </b>In <i>Covelli v. Covelli, </i>293 Wis.2d 707 (Ct. App. 2006), the court stated that the credibility and weight determination is uniquely in the province of the fact finder because it is in a better position than an appellate court to make such determinations. The fact finder has a superior view of the total circumstances of the witness' testimony.<br />
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<b> </b>In <i>State v. Kimbrough,</i> 246 Wis.2d 648 (Ct. App. 2001), the court set forth that the fact finder, in determining the credibility of each witness:<br />
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1) Can properly reject even uncontroverted testimony if it find the facts underpinning the testimony untrue.<br />
2) Even when a single witness testifies, the fact finder may choose to believe some assertions of the witness and disbelieve other assertions.<br />
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The court further stated that this is especially true when the witness is the sole possessor of relevant facts.<br />
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<b> </b>In <i>Bretl v. LIRC, </i>204 Wis.2d 93 (Ct. App. 1996), the court indicated that credible evidence is that which excludes speculation and conjecture..<br />
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<b> </b>In <i>State v. Perkins, </i>277 Wis.2d 243 (Ct. App. 2004), in addressing the credibility of witnesses and weight of evidence, the court set forth that only if the evidence is inherently or patently incredible will a court substitute its judgment for that of the fact finder.<br />
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<b> </b>In <i>State v. Kienitz,</i> 227 Wis.2d 423 (1999), in addressing the credibility of an expert, the court set forth that the trier of fact:<br />
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1) Has the ability to accept so much of testimony of an expert that it finds credible.<b> </b><br />
2) Is not bound by the opinion of an expert and can accept or reject the expert's opinion.<br />
3) May accept certain portions of an expert's testimony while disregarding other portions.<br />
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In <i>State v. Turner, </i>186 Wis.2d 277 (Ct. App. 1994), the court indicated that the credibility of witnesses is determined by:<br />
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1) Words<br />
2) Tonal quality<br />
3) Volume and speech patterns<br />
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all of which give clues as to whether a witness is telling the truth. The court went on to say that is is critical that jurors hear the witness' testimony and relate the testimony to the demeanor of the witness.<br />
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In <i>State v. Anson,</i> 275 Wis.2d 832 (Ct. App. 2004), the court reiterated that the fact finder has no obligation to believe everything a witness says.<br />
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In <i>Cogswell v. Robert Shaw Controls Co.,</i> 87 Wis.2d 243 (1979), the court set forth that when more than one reasonable inference can be drawn from credible evidence, the reviewing court must accept the inference drawn by the trier of fact.<br />
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In <i> State v. Kimberly B.,</i> 283 Wis.2d 731 (Ct. App. 2005), the court stated that it is the fact finder's task to sift and winnow the credibility of witnesses.<br />
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<b>Conclusion</b></div>
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<b> </b>The determination of credibility and weight of evidence is not a scientific determination. It is made by a fact finder (judge or jury) through the use of common sense and long experiences in life. It takes into account:</div>
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1) What is said.</div>
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2) How it was said.</div>
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3) Who said it.</div>
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Evidence that is credible and worthy of belief is evidence that has a common sense "ring of truth." The statement of the late Justice Potter Stewart in an obscenity case is very applicable when it comes to determining credibility and weight of evidence: "You know it when you see it."</div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-18726930834082665452015-03-23T18:04:00.002-05:002015-03-23T18:04:40.038-05:00The Entrapment Defense in Wisconsin<div style="text-align: center;">
<b>By</b></div>
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<b><br /></b></div>
<div style="text-align: center;">
<b>Hon. John J. DiMotto</b></div>
<div style="text-align: center;">
<b><br /></b></div>
<div style="text-align: left;">
<b> </b>Entrapment is an affirmative defense bearing upon the guilt or innocence of a defendant. It is the inducement of a person to commit a crime not contemplated by the person for the mere purpose of instituting a criminal prosecution against the person. It is a question to be decided by the trier of fact -- a judge after a court trial or a jury. It pertains to the merits of the cause and is not raised in a pretrial motion. It is not a ground for excluding evidence. <i>State v. Hochman, 2 Wis.2d 410, 413 - 414, 418 - 419 (1957).</i></div>
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Entrapment is a positive defense, the invocation of which necessarily assumes that the act charged was committed. <i>22 C.J.S., Criminal Law, pp.99, 100, sec. 45a</i>. </div>
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An examination of case law, gives one a clear understanding of the parameters of this defense.</div>
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<b>Case Law</b></div>
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In <i>Hawthorne v. State, 43 Wis.2d 82 (1969), </i>the Court set forth:</div>
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1) If criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute the accused for it, constitutes no defense.</div>
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2) However, if the evil intent and the criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute the accused for it when he would not have committed an offense of that character except for the urging of the agent, no conviction may be had.</div>
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3) Entrapment, as a matter of law, is not established where there is any substantial evidence from which it may be inferred that the criminal intent to commit a particular offense originated in the mind of the accused.</div>
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In <i>Fletcher v. State, 68 Wis.2d 381 (1975)</i>, the Court set forth that the defense of entrapment is inapplicable where the state shows that the defendant's prior disposition to commit the crime; that the intent to violate the law originated in the mind of the defendant.</div>
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In <i>State v. Amundson, 69 Wis.2d 554 (1975)</i>, the Court set forth that entrapment involves two elements: First, the defendant must show "inducement" by a preponderance of the evidence. Second, the State must show "predisposition" by the defendant beyond a reasonable doubt. The Court further indicated that entrapment encompasses inducements and other activities by police removing the element of volition by the defendant. It stated that entrapment is involved where police have instigated, induced, lured or incited the commission of the crime and where police tactics offend common concepts of decency.</div>
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In <i>State v. Saternus, 127 Wis.2d 460 (1986)</i>, the Court set forth that entrapment is a common law defense. It is only a dispositive issue when all elements of the crime are proved. It is not available when the intent to commit the crime originates in the mind of the defendant. If the defendant had a willing disposition to commit the crime, the fact that the opportunity is furnished by police to secure the evidence constitutes no defense. However, if the evil intent and criminal design originated in the mind of the government agent and the accused is lured into the commission which he otherwise would not have done, no conviction can be had. The Court said that the entrapment defense is not to be resolved solely by consideration of outrageousness of the government agent but rather the trier of fact must look to where the intent originates. A subjective test is applied to whether police conduct affected or changed the defendant's state of mind as contrasted with the objective test which focuses on how reprehensible police action would affect intent of a person in the circumstances whether predisposed or not.</div>
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In <i>State v. Steadman, 152 Wis.2d 293 (Ct. App. 1989)</i>, the Court indicated that government providing a defendant with opportunity but not instigated crime is not entrapment.</div>
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In <i>State v. Bjerkaas, 163 Wis.2d 949 (Ct. App. 1991),</i> the Court set forth that the trial court may deny an entrapment instruction if not reasonably required by the evidence. Mere offering to buy drugs is not entrapment. Befriending a defendant is not inducement.</div>
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In <i>State v. Hilleshiem, 172 Wis.2d 1, Ct. App. 1992), </i>the Court set forth that a government agent furnishing a defendant with the opportunity to commit a crime is not entrapment.. A government agent hay engage in some inducement, encouragement or solicitation in order to detect criminals. Entrapment is only established if a government agent uses "excessive" incitement, urging, persuasion or temptation and prior to inducement the defendant was not already disposed to commit the crime.</div>
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In <i>State v. Schumann, 226 Wis.2d 398 (Ct. App. 1999), </i> the Court indicated that only "slight evidence" is required to create a factual issue and put the defense before the jury. Evidence may be weak, insufficient, inconsistent or of doubtful credibility but a defendant is entitled to an entrapment instruction unless the evidence is rebutted by the state to the extent that no rational jury could entertain a reasonable doubt as to inducement and lack of predisposition.</div>
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<b>Conclusion</b></div>
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<b> </b>While the entrapment defense is an available defense, it is very rarely pursued because the defendant must concede the elements of the offense -- concede the commission of the crime -- and hope that the jury will accept the defendant's explanation that intent to commit the crime did not originate with the defendant but was the result of excessive government incitement, urging, persuasion or temptation. A defendant needs to come before the jury with "clean hands" if he or she hopes to prevail.</div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-25191271484804288452015-02-11T13:47:00.001-06:002015-02-11T13:47:55.968-06:00INFORMED CONSENT IN WISCONSIN: PAST AND PRESENT<div style="text-align: center;">
<b>By</b></div>
<div style="text-align: center;">
<b>Hon. John J. DiMotto</b></div>
<div style="text-align: center;">
<b><br /></b></div>
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<b> </b>Section 448.30 of the Wisconsin Statutes sets forth the requirement that a physician obtain the informed consent of his/her patient before performing a medical procedure. It addresses what a reasonable patient would want/need to know in order to make an intelligent decision with respect to treatment or diagnosis as well as the obligations of the physician in providing the information. In this blog, I will first look at case law which first addressed the concept of informed consent at common law. Next, I will look at the informed consent statute that was enacted in 1982 and then look at it the informed consent statute as revised in 2013.</div>
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<b>PRE-1982 CASE LAW</b></div>
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<b> </b> In Wisconsin, common law has long recognized the need for the consent of a patient to a medical procedure.</div>
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In <i>Throne v. Wandell</i>, (1922), 176 Wis. 97, the Court held that a person in possession of his faculties and in sufficient physical health to be consulted about his condition, must be so consulted in nonemergency situations.</div>
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In <i>Paulsen v. Gundersen, </i>(1935), 218 Wis. 578, the Court held that the plaintiff had the burden of proving that that the operation performed was done without his consent.</div>
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In <i>Trogun v. Fruchtman</i>, (1973), 58 Wis.2d 569, the Court recognized that a patient had a right to know of significant potential risks involved in proposed treatment or surgery so that he could make a rational and informed decision of whether he would undergo the proposed procedures. </div>
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In <i>Scaria v. St. Paul Fire and Marine Ins. Co., </i>68 Wis.2d 1 (1975), the Court stated that the duty of a doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of the disclosure to intelligently exercise his right to consent or refuse treatment or procedure proposed. The Court further stated that a doctor need not disclose technical information that a patient will not likely understand or extremely remote risks that might only cause alarm.</div>
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<b>CHAPTER 375, LAWS OF 1981</b></div>
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On May 6, 1982, the Wisconsin legislature enacted the first "Informed Consent" law in Section 448.30. It was entitled: "Information on alternate modes of treatment." In essence, it codified what had been discussed in case law. It set forth:<br />
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"Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:<br />
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(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.<br />
(2) Detailed technical information that in all probability a patient would not understand.<br />
(3) Risks apparent or known to the patient.<br />
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.<br />
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.<br />
(6) Information in cases where the patient is incapable of consenting.<br />
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Over the years, appellate courts have had numerous opportunities to address the issue of informed consent in 448.30.<br />
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In <i>Staudt v. Froedert Memorial Lutheran Hospital</i>, 217 Wis.2d 773 (Ct. App. 1998), the Court held that the duty to get informed consent rests with the physician not the hospital. Medical decisions on how to treat patients rests with physicians who are subject to liability for their malpractice.</div>
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In <i>Mathias v. St. Catherine's Hospital Inc., </i>212 Wis.2d 540 (Ct. App. 1997), the Court stated that the duty of a doctor to ensure a patient gives informed consent to any medical treatment is codified in 448.30 and that the legislature limited the application to treating physicians.</div>
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In <i>Schreiber v. PICWIS</i>, 223 Wis.2d 417 (1999), The Court held that: </div>
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(1) A patient does not have the right to demand any treatment she desires. </div>
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(2) A doctor is not required to perform procedures that he/she does not consider medically viable; procedure for which he/she lacks appropriate expertise or procedures he/she is morally opposed to do.</div>
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(3) Consent, once given, is not immutable. It can be withdrawn.</div>
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(4) The onset of the procedure does not foreclose a patient's withdrawal of consent though at some point in time in virtually every medical procedure a patient reaches a point of no return but this point need not be arbitrarily created at the commencement of the procedure. It varies with the nature of the individual procedure and continues so long as there are alternative viable modes of medical treatment.</div>
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(5) An objective test applies to whether the failure to again conduct an informed consent discussion was a cause of injuries. (Objective test -- would a reasonable patient want to know the information and would a reasonable patient have acted differently than they did without the information.)</div>
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(6) Where informed consent is withdrawn, a subjective test is applied to another informed consent discussion.</div>
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In <i>Montalvo v. Barkovec</i> 256 Wis.2d 472 (Ct. App. 2002), the Court indicated that what a physician must disclose is what a reasonable person in the patient's position would need to know in order to make an intelligent and informed decision.</div>
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In <i>Martin v. Richards</i>, 192 Wis.2d 156 (1995), the Court indicated that: </div>
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(1) The doctrine of informed consent comes from common law and stems from the fundamental notion of the right to bodily integrity. </div>
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(2) 448.30 requires a physician who treats a patient to inform the patient of availability of "all alternate, viable" modes of treatment and benefits and risks of them except in six circumstances.</div>
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(3) The standard for informed consent cannot be defined by the medical profession. It is not a medical decision, it is a patient's decision.</div>
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(4) Diagnostic procedures as well as medical procedures are included in 448.30.</div>
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(5) Informed consent applies to noninvasive procedures as well invasive procedures.</div>
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In <i>Johnson v. Kokemoor</i>, 199 Wis.2d 614 (1996), the Court indicated that in order to insure that a patient gives informed consent: </div>
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(1) A physician has the duty to provide the patient with such information as may be necessary under the circumstances then existing to assess significant potential risks the patient confronts. </div>
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(2) The information must be material to the decision.</div>
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(3) The patient cannot make an informed consent unless the physician gives the patient all of the viable alternatives and risks information.</div>
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(4) There is no bright line rule as to what a patient needs to know. It varies case by case.</div>
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(5) Disclosures that would be made by doctors in good standing, under the same or similar circumstances, are certainly material and relevant.</div>
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In <i>Brown v. Dibbell, </i>227 Wis.2d 28 (1999), the Court indicated that:</div>
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(1) A patient's duty to exercise ordinary care in an informed consent case includes a patient's duty to tell the truth and give complete and accurate information about personal family and medical histories to a doctor's request for such information.</div>
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(2) A patient's duty to exercise ordinary care in an informed consent case generally does not impose on a patient an affirmative duty to ascertain the truth or completeness of the doctor's information, to ask the doctor questions or independently seek information when a reasonable person would want such information. Usually a patient has to rely on the professional skills and knowledge of the doctor.</div>
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(3) Informed consent doctrine focuses on the reasonableness of the doctor's disclosure. </div>
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(4) The standard of what a doctor must disclose is described as "the prudent patient's standard."</div>
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In <i>Hageny v. Bodensteiner</i>, 316 Wis.2d 240 (Ct. App. 2008), the Court indicated that a physician need not disclose absolutely every fact or remote possibility that could theoretically accompany a procedure. What must be disclosed is what a reasonable person in the patient's position would want to know.</div>
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In <i>Bubb v. Brusky</i>, 321 Wis.2d 1 (2009), the Court indicated that:</div>
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(1) Any physician who treats a patient must inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as benefits and risks of such treatments.</div>
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(2) The patient's right of self decision is the measure of the physician's duty to reveal.</div>
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(3) A physician's duty to inform is not boundless but must give information of risks, known to a reasonably well qualified practitioner or specialist commensurate with his/her classification in the medical profession. This is a reasonableness standard.</div>
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In <i>Jandre v. PICWIS</i>, 340 Wis.2d 31 (2012), the Court held:</div>
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(1) A physician's duty is to inform the patient about diagnostic procedures about which a reasonable patient would want to know to make an informed, voluntary decision about his or her medial care, even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis.</div>
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(2) Though the final diagnosis in this case was non negligent one of Bell's Palsey, the earlier differential diagnosis involving stroke required the physician to inform the patient of the test for stroke.</div>
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(3) <i>Martin</i> and <i>Bubb</i> did not hold that a physician has duty to inform a patient only of information about the final diagnosis and related condition.</div>
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(4) The physician must make disclosures as appear reasonably necessary under the circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of the disclosure to intelligently exercise informed consent regarding the treatment or procedure proposed.</div>
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<b>2013 WISCONSIN ACT 111</b></div>
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<b> </b>In response to the <i>Jandre</i> decision, on December 12, 2013 the Wisconsin Legislature enacted 2013 Wisconsin Act 111 which effectively limits the scope of 448.30. The legislation revised 448.30 as follows: </div>
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(1) Eliminating the requirement that a physician inform the patient of "<b>all</b> alternate, viable medical medical modes of treatment" and replacing it with "reasonable medical modes of treatment."</div>
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(2) Setting forth a "reasonable physician standard" for informing a patient. This standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances.</div>
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(3) Setting forth that disclosure is not required about alternate medical modes of treatment for any condition that physician has not included in his/her diagnosis at the time the physician informs the patient.</div>
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448.30 has been retitled: Informed consent. It sets forth:</div>
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"Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or similar medical specialty would know and disclose under the circumstances. The physician's duty to inform the patient under this section does not require disclosure of:</div>
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(2) Detailed technical information that in all probability a patient would not understand.</div>
(3) Risks apparent or known to the patient.<br />
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.<br />
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.<br />
(6) Information in cases where the patient is incapable of consenting.<br />
(7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.<br />
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<b>CONCLUSION</b></div>
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The revisions to 448.30 limit the disclosure obligations of a physician. The questions to be answered in future cases are: </div>
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(1) Does the "reasonable physician standard" of 448.30 that requires disclosure only of information that a reasonable physician in the same or similar medical specialty would know and disclose under the circumstances trump the "reasonable patient standard" in Wisconsin law that requires a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to choices of treatment or diagnosis? </div>
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(2) Does the "reasonable physician standard" of 448.30 run contrary to the "fundamental notion of the right to bodily integrity?</div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-43274489941643103022015-01-29T08:30:00.000-06:002015-01-29T19:07:07.045-06:00DAUBERT IN WISCONSIN -- THREE YEARS DOWN THE ROAD<div style="text-align: center;">
By </div>
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Hon. John J. DiMotto</div>
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It has been almost three years since Wisconsin became a "<i>Daubert</i>" state. When the amendments to 907.02 took effect in February, 2011, the Wisconsin legal community was divided as to the impact "<i>Daubert</i>" would have on litigation in Wisconsin. There were those skeptics who believed that: </div>
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1) It would be more difficult to introduce expert testimony</div>
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2) Trial judges would become "uber- gatekeepers" who would manipulate the outcome of a case based on "reliability rulings.</div>
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3) Introduction into evidence of advances in technology would be stifled.</div>
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4) Litigation dependent on expert testimony would suffer.</div>
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5) "<i>Daubert</i>" would have a seismic impact on litigation requiring expert testimony.</div>
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On the other hand, there were those who believed that:</div>
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1) It would not be more difficult to introduce expert testimony.</div>
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2) Trial judges would exercise their gatekeeper function moderately.</div>
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3) Advances in technology would not be deemed inadmissible because of their "newness."</div>
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4) Litigation dependent on expert testimony would not be negatively impacted.</div>
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5) "<i>Daubert</i>" would have a subtle impact on litigation requiring expert testimony.</div>
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In a blog entry that I wrote and posted on February 16, 2011, I rendered the opinion that the effect of "<i>Daubert</i>" in Wisconsin would be subtle:</div>
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1) That the interplay between "relevancy" and "reliability" was compatible not incompatible. </div>
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2) That to be "relevant" evidence needed to be "reliable."</div>
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3) That a reasonable reading of <i>Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)</i> revealed that SCOTUS:</div>
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a) Stepped back from the rigid "general acceptance" rule of <i>Frye.</i></div>
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<i> </i>b) Made it clear that the "<i>Daubert</i>" inquiry is a flexible inquiry.</div>
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c) Rule 702 will not create a "free for all."</div>
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d) Vigorous cross examination; presentation of contrary evidence; careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.</div>
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4) That SCOTUS intended to make the introduction of expert testimony easier.</div>
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5) That SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.</div>
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I believe that Wisconsin appellate decisions addressing "<i>Daubert" </i>issues has shown my prediction to be true.</div>
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In the almost three years since "<i>Daubert" </i> has been the "law of the land" in Wisconsin, there have been two decisions that address "<i>Daubert</i>" substantively: <i>State v. Giese, 2014 WI App 92, 356 Wis.2d 796</i> and <i>State v. Alger, 2015 WI 3, ____Wis.2d ____.</i></div>
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<i><br /></i></div>
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<i>State v. Giese</i></div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
In <i>Giese</i>, the trial court denied Giese's motion to exclude expert testimony concerning retrograde extrapolation of his Blood Alcohol Concentration (BAC). The Court of Appeals affirmed the trial court's decision. The court found that the trial court properly admitted the expert's testimony under 907.02 because:</div>
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<br /></div>
<div style="text-align: left;">
1) It was the product of reliable principles and methods.</div>
<div style="text-align: left;">
2) It was based upon sufficient facts and data.</div>
<div style="text-align: left;">
3) The defendant's objections went to the weight of the expert's opinions and validity of the expert's underlying assumptions.</div>
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<br /></div>
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The court indicated that the trial court's gatekeeper function under "<i>Daubert"</i> is: </div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) To ensure that the expert's opinion is based on a reliable foundation and is relevant to material issues.</div>
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<br /></div>
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The court further indicated:</div>
<div style="text-align: left;">
<br /></div>
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1) That the trial court is to focus on principles and methodology that the expert relies upon, not the conclusion generated.</div>
<div style="text-align: left;">
2) That the question is whether scientific principles and methods that the expert relies upon have a reliable foundation in the knowledge and experience of the expert's discipline.</div>
<div style="text-align: left;">
3) That relevant factors include:whether the scientific approach can be objectively tested; whether it has been subject to peer review and publication' whether it is generally accepted in the scientific community.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
The court made it abundantly clear that this standard is flexible but has teeth. The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion. The trial court is not required to admit opinion evidence connected to existing data only by ipse dixit of the expert.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
The court went on to say that the mere fact that experts disagree about reliability of a principle does not mean it violates "<i>Daubert." </i>Assumptions of the expert go to weight not admissibility. If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance. Accuracy of facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury,</div>
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<br /></div>
<div style="text-align: left;">
What we take away from <i>Giese</i> is that "<i>Daubert</i>" is flexible not rigid.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
<i>State v. Alger</i></div>
<div style="text-align: center;">
<i><br /></i></div>
<div style="text-align: left;">
<i> </i>In <i>Alger</i>, the defendant sought discharge from his Chapter 980 Sex Offender Commitment. He wanted the trial court to apply the "<i>Daubert"</i> standard to the State's expert opinions. He believed that the "science" is ever changing and while perhaps relevant, not reliable enough to be considered by the jury. The trial court refused to apply the "<i>Daubert</i>" standard because the case began before "<i>Daubert" </i> went into effect in Wisconsin. The Court of Appeals affirmed the decision of the trial court and the Wisconsin Supreme Court affirmed the Court of Appeals.</div>
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<br /></div>
<div style="text-align: left;">
While the ultimate decision is that "<i>Daubert"</i> does not apply in the case, it is significant that the court indicated that the expert testimony of the kind offered in a Chapter 980 case may be admissible regardless of which standard applies. The court indicated:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) Rejection of expert testimony, post-<i>Daubert</i>, is the exception not the rule.</div>
<div style="text-align: left;">
2) <i>"Daubert"</i> adds a 4th prong: a reliability component to Wisconsin's 3 prong "relevancy components.</div>
<div style="text-align: left;">
2) A hearing is not always required for expert testimony under <i>"Daubert."</i></div>
<div style="text-align: left;">
3) The expert testimony offered by the State in Chapter 980 cases is not "junk science" that is rejected by the <i>"Daubert"</i> standard.</div>
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<br /></div>
<div style="text-align: center;">
Conclusion</div>
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<br /></div>
<div style="text-align: left;">
When it comes to "<i>Daubert" </i>in Wisconsin, I am convinced by <i>Giese</i> and <i>Alger</i> of four things:</div>
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<br /></div>
<div style="text-align: left;">
1) <i> </i>It is a FLEXIBLE standard.</div>
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2) Rejection of expert testimony IS THE EXCEPTION NOT THE RULE.</div>
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3) It is a doctrine/standard of INCLUSION NOT EXCLUSION.</div>
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4) It's effect in Wisconsin is SUBTLE not seismic.</div>
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<br /></div>
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</div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com1tag:blogger.com,1999:blog-5077774759289052226.post-37876058503025815472014-12-10T10:56:00.001-06:002014-12-10T10:56:19.460-06:00ELECTRONIC SURVEILLANCE AND ONE PARTY CONSENT IN WISCONSIN<div style="text-align: center;">
BY</div>
<div style="text-align: center;">
HON. JOHN J. DIMOTTO</div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
With the disclosures by Edward Snowden regarding activities of the NSA, people are much more attuned today about their personal privacy and their right, under the Fourth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In this blog entry, I want to look at Wisconsin's Electronics Surveillance Control Law (WESCL) and One Party Consent.</div>
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<br /></div>
<div style="text-align: center;">
STATUTORY LAW</div>
<div style="text-align: center;">
968.27 - 968.37</div>
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<br /></div>
<div style="text-align: left;">
WESCL was created by ch. 427, Laws of 1969. It replaced Wisconsin's Wiretapping Law, sec. 885.36. This WESCL prohibited the admission into evidence of tape-recorded interceptions of telephonic conversations. In essence, while "interception" via one party consent may be lawful and used by law enforcement in the proper performance of official duties, "admission" into evidence is not, absent interception by authorized means in accordance with the state act. <i>State ex rel Arnold v. County Court, 51 Wis.2d 434 (1971). </i>The WESCL has undergone revision multiple times since 1969 and has been construed by case law over the years. </div>
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<br /></div>
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Currently, one party consent is addressed in 968.29(3)(b), 968.31(2)(b) and (c) which read:</div>
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<br /></div>
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968.29(3)(b): Any person who has received, in the manner described under 968.31(2)(b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding ... in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording</div>
<div style="text-align: left;">
968.31(2)(b): It is not unlawful under 968.28 - 968.37: for a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.</div>
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968.31(2)(c): It is not unlawful under 968.28 - 968.37 for a person not acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.</div>
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<br /></div>
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Under 968.27(12), an oral communication "means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. Oral communication does not include any electronic communication.</div>
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<br /></div>
<div style="text-align: center;">
CASE LAW</div>
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<br /></div>
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In <i>State v. Waste Management of Wisconsin Inc., 81 Wis.2d 555 (1978)</i>, The Court held that: </div>
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<br /></div>
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1) Evidence obtained by the State by means of illegal electronic surveillance violates the 4th Amendment and must be suppressed. </div>
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2) One party consent tapes are not searches within the 4th Amendment. </div>
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3) Taping conversations for one's own protection is legitimate.</div>
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4) One party consent tapes are lawful but not authorized under the WESCL and therefore the tapes cannot be used as evidence in the case in chief.</div>
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5) Though the tapes may not be admissible, a witness's testimony regarding the conversation is admissible. <i>State v. Smith, 72 Wis.2d 711 (1976).</i></div>
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<br /></div>
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NB. This case was subsequently overruled by revisions to WESCL.</div>
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In <i>State v. Gil, 208 Wis.2d 531 (Ct. App. 1997),</i> the Court held that:</div>
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<br /></div>
<div style="text-align: left;">
1) Where one party consent was being used in accordance with the WESCL re: offenses delineated in the law, that where during the surveillance law enforcement inadvertently heard information regarding crimes not covered by WESCL, this "plain hearing" allows admission of the surveillance statements.</div>
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2) Plain hearing is an outgrowth of plain view.</div>
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3) Inadvertence or fortuity is a key factor which the court must resolve before employing the "plain hearing" exception to the WESCL.</div>
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<br /></div>
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In <i>State v. Curtis, 218 Wis.2d 550 (Ct. App. 1998), </i>The Court held that:</div>
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<br /></div>
<div style="text-align: left;">
1) While the law in Wisconsin used to be that one party consent tapes were legal only for investigative purposes and not admissible as evidence, they are admissible in drug prosecutions like this case.</div>
<div style="text-align: left;">
2) Subsequent amendments have further broadened this authorization to all felonies. <i>1993 Wis. Act 98 and 1995 Wis. Act 30.</i></div>
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<i><br /></i></div>
<div style="text-align: left;">
<i> </i>In <i>State v. Riley, 287 Wis.2d 244 (Ct. App. 2005)</i> the Court held that:</div>
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<br /></div>
<div style="text-align: left;">
1) The State could use a defendant's outgoing jail calls where the inmate is given meaningful notice that such calls are subject to recording because under these circumstances the defendant's decision to engage in conversations over these phones constituted implied consent.</div>
<div style="text-align: left;">
2) Interception of such jail calls is lawful and results of interception are admissible in evidence so long as they are authenticated in accordance with 968.29(3)(b).</div>
<div style="text-align: left;">
3) Jail inmates have no expectation of privacy in calls to non attorneys placed on jail phones. Their right to privacy is outweighed by the institution's need for safety and security.</div>
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<br /></div>
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In <i>State v. Christensen, 304 Wis.2d 147 (Ct. App. 2007),</i> the Court held that:</div>
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<br /></div>
<div style="text-align: left;">
1) Recording jail calls did not violate WESCL because the defendant was warned about recording and monitoring and implicitly consented by continuing <span style="background-color: yellow;">to </span>converse.</div>
<div style="text-align: left;">
2) A person acting under color of law can intercept calls where prior consent is given to the interception.</div>
<div style="text-align: left;">
3) The fact that all calls are recorded, including calls to attorneys, does not require suppression of calls with non attorneys.</div>
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4) The general rule of suppression: items seized within the search warrant scope need not be suppressed simply because items outside the scope of warrant were also seized. <i>State v. Petrone, 161 Wis.2d 530 (1991).</i></div>
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<i><br /></i></div>
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In <i> State v. House, 302 Wis.2d 1 (2007), </i> the Court held that:</div>
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<br /></div>
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1) It is error for a trial court to authorize a wiretap for offenses not enumerated in the wiretap statute - 968.28,</div>
<div style="text-align: left;">
2) However, suppression not warranted where the wiretap did also include enumerated offenses; there was probable cause for enumerated offenses; charges only brought for enumerated offenses.</div>
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<br /></div>
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In <i>State v. Duchow, 310 Wis.2d 1 (2008):</i></div>
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<br /></div>
<div style="text-align: left;">
In this case, the defendant was charged with Child Abuse. A tape recorder had been secreted in the child's backpack by parents. The trial court found that the taped statements were not "oral communications" within the WESCL and admitted them. The Court of Appeals reversed holding they were lawfully intercepted but not under color of law. Here, the Supreme Court held that:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) Under WESCL, an "oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. Oral communication does not include any electronic communication,</div>
<div style="text-align: left;">
2) Reasonable expectation of privacy is incorporated into the statute.</div>
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3) Reasonable expectation of noninterception is not the standard.</div>
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4) Here, the factors do not support that the defendant's subjective expectation of privacy is objectively reasonable. Individuals do not retain an expectation of privacy in threats to harm the person to whom the threat is made.</div>
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<br /></div>
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In <i>State v. Sveum, 319 Wis.2d 498 (Ct. App. 2009),</i> the Court held that GPS is not an electronic communication. It is a tracking device which is excluded from WESCL.</div>
<div style="text-align: left;">
<br /></div>
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In <i>State v. Ohlinger, 317 Wis.2d 445 (Ct. App. 2009),</i> the Court held that:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) One party consent exception to WESCL [968.31(2)(b)] applies when the intercepting person is a police officer and the party to the communication who consents to the intercept is also a police officer.</div>
<div style="text-align: left;">
2) WESCL governs the lawfulness <span style="background-color: yellow;">and</span> use of electronic intercepts of communications.</div>
<div style="text-align: left;">
3) Under one party consent, contents of interception may be disclosed in a felony proceeding.</div>
<div style="text-align: left;">
4) One party consent requires that the intercepting person must be acting under color of law. A police officer can be that person.</div>
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5) Intercepting person and consenting person can both be police officers.</div>
<div style="text-align: left;">
6) Consent of one person provides a basis for not imposing the warrant requirement.</div>
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<br /></div>
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In <i>State v. Turner, 356 Wis.2d 759 (Ct. App. 2014)</i>, the Court held that:</div>
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<br /></div>
<div style="text-align: left;">
1) The ability of a minor to give one party consent to interception of conversations is a question of voluntariness.</div>
<div style="text-align: left;">
2) In considering the voluntariness of a minor to give one party consent, the court should consider the totality of the circumstances including but not limited to age, intelligence, knowledge and maturity.</div>
<div style="text-align: left;">
3) A minor's consent must be the product of an essentially free and unconstrained choice.</div>
<div style="text-align: left;">
4) It is not unlawful for a person "acting under color of law" to intercept a wire, electronic or oral communication where the person is a part to the communication and one of the parties to the communication has given prior consent.</div>
<div style="text-align: left;">
5) Though a 15 year old cannot consent to sexual acts, a 15 year old can give one party consent to interception.</div>
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<br /></div>
<div style="text-align: center;">
CONCLUSION</div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
WESCL puts limitations on electronic surveillance. However, when there is compliance with the law -- including one party consent -- such surveillance can be both lawful and admissible in a court of law.</div>
<div style="text-align: center;">
<br /></div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-80641412371071438292014-11-28T11:00:00.001-06:002014-11-28T11:00:55.674-06:00FIREARM SURRENDER HEARINGS IN WISCONSIN - MILWAUKEE COUNTY PROCEDURES<div style="text-align: center;">
<b>BY</b></div>
<div style="text-align: center;">
<b><br /></b></div>
<div style="text-align: center;">
<b>HON. JOHN J. DIMOTTO</b></div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
In Wisconsin, if a court issues a Domestic Abuse Injunction under 813.12, a Child Abuse Injunction under 813.122, an Individual at Risk Injunction under 813.123 or an Harassment Injunction under 813.125, the court is required to enter an order prohibiting the respondent - the person against whom the injunction is issued -- from possessing any firearms during the time period the injunction is in effect. </div>
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<br /></div>
<div style="text-align: left;">
When one of the above injunctions is issued, the court must give notice to the respondent of: </div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The necessity to surrender all firearms; </div>
<div style="text-align: left;">
2) The procedure for litigating a firearm surrender hearing: and </div>
<div style="text-align: left;">
3) The failure to surrender firearms when ordered by the court may result in being charged with a felony for possessing a firearm under 941.29. </div>
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<br /></div>
<div style="text-align: center;">
FILING OF PETITION AND ISSUANCE OF TEMPORARY RESTRAINING ORDER</div>
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<br /></div>
<div style="text-align: left;">
The procedures enacted by the Wisconsin Legislature set forth the when the Petition is filed and a Temporary Restraining Order (TRO) issued, it must be served on the respondent. Accompanying the Petition and TRO are forms regarding: </div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The Surrender and Return of Firearms. (CV-804)</div>
<div style="text-align: left;">
2) The respondent's statement of possession of firearms. (CV-800)</div>
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3) Notice of Firearms Possession Penalties. (CV-432)</div>
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<br /></div>
<div style="text-align: center;">
INJUNCTION HEARING - RESPONDENT PRESENT</div>
<div style="text-align: center;">
INJUNCTION GRANTED</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
If the respondent appears at the injunction hearing and if an injunction is to be issued, the court must determine whether the respondent possesses any firearms. If the court determines that the respondent does not possess any firearms:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The respondent's statement of nonpossession is filed with the court;</div>
<div style="text-align: left;">
2) The court issues the injunction forthwith;</div>
<div style="text-align: left;">
3) The respondent is admonished regarding no firearm possession during the pendency of the injunction.</div>
<div style="text-align: left;">
4) No Firearms Surrender Hearing is necessary.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
If the respondent appears at the injunction hearing and if an injunction is to be issued, and the court determines that the respondent does possess a firearm or there is evidence that the respondent does possess a firearm:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The court issues the injunction but stays it for up to 48 hours and continues the TRO. This is done to give the respondent an opportunity to surrender the firearm. After the expiration of the 48 hours, the injunction goes into effect.</div>
<div style="text-align: left;">
2) The court clerk fills out an Order for Respondent to Surrender Firearms and Notice of Firearms Surrender Hearing (CV-803).</div>
<div style="text-align: left;">
3) A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing. In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.</div>
<div style="text-align: left;">
4) The respondent is instructed to surrender all firearms within 48 hours and attend the hearing if the respondent does not timely surrender all firearms in respondent's possession.</div>
<div style="text-align: left;">
8) Order that the respondent may possess firearms only for the purposes of surrend.</div>
<div style="text-align: left;">
9) Respondent must surrender all firearms even if respondent will seek a de novo review of the initial decision to issue the injunction.</div>
<div style="text-align: left;">
10) Respondent is admonished regarding no firearm possession during the pendency of the injunction.</div>
<div style="text-align: left;">
11) If the respondent wants to surrender firearms to a third party, the respondent and third party must attend the Firearms Surrender Hearing and receive consent of the court.</div>
<div style="text-align: left;">
12) If firearms are timely surrendered to the Sheriff and a receipt of same is filed with the court before the hearing, the hearing can be canceled.</div>
<div style="text-align: left;">
13) If firearms are surrendered to any other police agency, the respondent must appear at the hearing the a receipt from that law enforcement agency.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
INJUNCTION HEARING - RESPONDENT NOT PRESENT</div>
<div style="text-align: center;">
INJUNCTION GRANTED</div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued and the court determines that the respondent does not possess a firearm:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The court will issue the injunction forthwith.</div>
<div style="text-align: left;">
2) The Sheriff will serve the injunction upon the respondent.</div>
<div style="text-align: left;">
3) No Firearms Surrender Hearing will be set.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued, and the court determines that the respondent does possess a firearm:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The court issues the injunction but stays it for up to 48 hours and continues the TRO. This is done to give the respondent an opportunity to surrender the firearm. After the expiration of the 48 hours, the injunction goes into effect.</div>
<div style="text-align: left;">
2) Once again, the court clerk fills out form CV-803.</div>
<div style="text-align: left;">
3) A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing. In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.</div>
<div style="text-align: left;">
4) The Sheriff will serve all of the orders and documents generated by the court on the respondent.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
If the respondent was served with the Petition and TRO and is not present at the injunction hearing and the court is uncertain about whether the respondent possesses a firearm:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) The court will issues the injunction forthwith.</div>
<div style="text-align: left;">
2) The clerk will fill out a Notice of Firearms Surrender Hearing - Respondent Not Present at Injunction Hearing (CV-802)</div>
<div style="text-align: left;">
3) Sheriff will serve all of the orders and documents generated by the court on the respondent.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
FIREARMS SURRENDER HEARING</div>
<div style="text-align: center;">
RESPONDENT PRESENT</div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: left;">
If the respondent does not surrender the firearms to the Sheriff or file a receipt of same with the court, respondent must appear at the Firearms Surrender Hearing.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
If the respondent appears at the Firearms Surrender Hearing and has not surrendered firearms and the court determines that respondent does possess a firearm:</div>
<div style="text-align: left;">
<br /></div>
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1) The court should set a deadline for the respondent to surrender the firearms to the Sheriff and, if firearms not timely surrendered, direct the Sheriff to follow p and take possession of firearms.</div>
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2) The court should stay the injunction once again and reinstate the TRO for up to 48 hours to give the respondent time to surrender firearms.</div>
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3) After 48 hours, the injunction is reinstated.</div>
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FIREARMS SURRENDER HEARING</div>
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RESPONDENT NOT PRESENT</div>
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If respondent was served with notice of the Firearms Surrender Hearing but does not appear and the court determines that respondent has a firearm, the court shall issue a Civil Arrest Warrant with remand to the Civil Daytime Duty Judge upon arrest.</div>
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If respondent was not served and does not appear at the Firearms Surrender Hearing: </div>
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1) The court should adjourn the hearing for one week to that week's Civil Daytime Duty Judge's calendar --- OR</div>
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2) Refer the matter for immediate follow up investigation.</div>
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CONCLUSION</div>
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Injunction circumstances are very volatile and can pose great danger. It is incumbent on a court dealing with injunction hearings and firearms surrender hearings to take great care in following statutory mandates and procedures.</div>
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(All of the forms referenced above, which were created by the Court's Records Management Committee, are available for review and download at the Wisconsin Court's website: www.wicourts.gov.)</div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-89582610918626579212014-11-14T14:13:00.000-06:002014-11-14T14:33:41.343-06:00PERSONAL JURISDICTION OVER AN INSURANCE COMPANY IN A PERSONAL INJURY NEGLIGENCE LAWSUIT<div style="text-align: center;">
<b>Hon. John J. DiMotto</b></div>
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INTRODUCTION</div>
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In many personal injury automobile accident negligence cases that are filed by a plaintiff, the driver of the car who is alleged to be negligent and responsible for the accident has coverage from an insurance company. When the action is filed, an insurance company for an insured can be made a party to the lawsuit in one of two ways:</div>
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1) Where the insured is a party to the lawsuit.</div>
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2) If the conditions precedent for Direct Action against the insurance company are present regardless of whether the insured is a party to the lawsuit.</div>
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INSURED IS A PARTY TO THE LAWSUIT</div>
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When an insured is named as a party to a personal injury lawsuit and the court obtains personal jurisdiction over the insured, based on the insurance policy, the insurer is a proper party to the lawsuit and the court obtains personal jurisdiction over the insurer once service of process on the insurer is effectuated. It does not matter whether the insurer issued or delivered the policy in Wisconsin. It does not matter to what extent, if any, the insurer has its own contacts with the State of Wisconsin. By virtue of the insurance policy -- the contract of insurance between the insured and the insurer -- the insurer is "tethered" to the insured. However, what if the insured is not a party to the lawsuit?</div>
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DIRECT ACTION AGAINST AN INSURER</div>
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Regardless of whether an insured is made a party to a personal injury lawsuit, an insurer may be made a party to a personal injury lawsuit if:</div>
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1) The insurance policy was delivered or issued for delivery Wisconsin, or</div>
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2) Although the insurance policy was not delivered or issued for delivery in Wisconsin, the accident, injury or negligence occurred in Wisconsin.</div>
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Insurance Policy Delivered or Issued for Delivery in Wisconsin</div>
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Chapters 631 and 632 set forth the law in Wisconsin with respect to Insurance Contracts Generally (Ch. 631) and with respect to Insurance Contracts in Specific Lines (Ch. 632). </div>
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Section 631.01: application of statutes, provides in subsection (1):</div>
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This chapter and ch. 632 apply to all insurance policies and group certificates delivered or issued for delivery in this state...</div>
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Section 632.24: direct action against insurer, provides:</div>
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Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death or any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.</div>
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At first glance, one might believe that Section 632.24 is limited by Section 631.01(1) and requires that the policy must be delivered or issued for delivery in Wisconsin in order to allow direct action against an insurance company regardless of whether the insured is a party to the lawsuit. However, that is not the case. </div>
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In <i>Casper v. Am. Int'l Ins. Co., 336 Wis2d 267,301 (2011) </i> the Court set forth:</div>
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...we hold ... that Wis. Stat. 632.24 applies to any policy of insurance covering liability, irrespective of whether that policy was delivered or issued for delivery in Wisconsin, so long as the accident or injury occurs in this state. </div>
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In a footnote they stated that Wis. Stat. 632.24 has the same reach as 803.04(2). As a result of this decision, the delivery or issuance of a policy for delivery in Wisconsin is not the exclusive way to bring a Direct Action suit against an insurer. </div>
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Accident, Injury or Negligence Occurred in Wisconsin</div>
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Not only does 632.24 allow for direct action against an insurer if the policy was delivered or issued for delivery in Wisconsin but it also allows for direct action if the accident, injury or negligence occurred in Wisconsin.</div>
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Section 803.04, which discusses permissive joinder of parties, addresses negligence actions with respect to insurers in subsection (2)(a). This subsection provides:</div>
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In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff ... is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. If the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state. </div>
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While Section 632.24 is a substantive right, Section 803.04(2)(a) is a procedural right.</div>
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CONCLUSION</div>
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While in most personal injury negligence cases, the court obtains personal jurisdiction over the insured by virtue of the fact that the plaintiff specifically brings the insured into the lawsuit as a defendant, in those cases where the insured is not a party to the lawsuit, the insurer can be made a proper party if the policy was delivered or issued for delivery in Wisconsin or if the accident, injury or negligence occurred in Wisconsin.</div>
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</div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-55834577036648609022014-10-28T10:14:00.000-05:002014-10-28T10:20:43.931-05:00Amendment of Civil Pleadings to Add a Party -- Wisconsin's Relation Back Doctrine<div style="text-align: center;">
Hon. John J. DiMotto</div>
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In Wisconsin, a party may amend the party's pleadings once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order. Otherwise a party may amend one's pleadings only by leave of court or by written consent of the adverse party. However, leave shall be freely given at any stage of the action when justice so requires. see Wis. Stats. 802.09(1).</div>
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An issue does arise when the amendment is filed after the statute of limitations for the action has run. In this circumstance, a determination must be made as to whether the amendment "relates back" to the date of the filing of the original pleading. This issue is addressed in Wis. Stats. 802.09(3) and in case law.</div>
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802.09(3)</div>
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Under 802.09(3), "if the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom the claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party." </div>
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Is this doctrine straightforward? Maybe. Is this doctrine "case specific? Absolutely. Does case law give judges and attorney's guidance? Yes. Is case law "definitive?" Nothing in the case law is definitive.</div>
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Case Law</div>
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<i>Groom v. Professionals Ins. Co., 179 Wis.2d (Ct. App. 1993): </i>In this case, the plaintiff filed an amended complaint adding a doctor and medical group after the statute of limitations had run. The court found that 802.09(3) was not applicable because there was no mistake as to the identity of the proper party to allow the relation back.<i> </i></div>
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<i>Biggart v. Barstad, 182 Wis.2d 421 (Ct. App. 1994): </i>In this case, the plaintiff filed an amended complaint adding an insurance company with respect to two of its insureds after the statute of limitations had run. The court indicated that the statute allowing "relating back" [802.09(3)] implicates a notice issue. The court set forth: "Adequate notice in the original complaint of the transaction, events occurrence out of which the amended claims arise is essential if a party's statutory right to the protections of the statutes of limitations are to be guaranteed. Here the court found insufficient notice as to one of the insureds but sufficient as to the second insured.</div>
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<i>Grothe v. Valley Coatings Inc., 239 Wis.2d 406 (Ct. App. 2000):</i> In discussing the Relation Back Doctrine the court set forth that:</div>
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1) Notice is necessary</div>
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2) Basic claim must have arisen out of conduct set forth in the original pleadings</div>
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3) The party knew or should have known that but for the mistake concerning identity,the action would have been brought against it</div>
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4) Conditions 1 and 2 must have been fulfilled within the prescribed limitations period.</div>
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<i>Estate of Hegarty v. Beauchaine, 249 Wis.2d 142 (Ct. App. 2001):</i> In this case, the court indicated that the "changing the party" language in 802.09(3) includes:</div>
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1) Substitution of a new defendant for the present defendant</div>
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2) Addition of a new defendant</div>
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3) Changing stated capacity of the defendant</div>
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4) Changing a misdescription or misnaming of a defendant.</div>
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The court set forth that when a plaintiff wants to add a party, in order to do so there must have existed a mistake concerning the identity of the proper party now being added when the original pleading was filed. The court indicated that "identity" is defined as "the collective aspect of the set of characteristics by which </div>
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a thing is definitively recognizable or known. We interpret this to include an individual's name and physical characteristics which, taken as a whole, distinguish that person from another person, signifying their individuality."</div>
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<i>Gross v. Woodman's Food Market, Inc., 259 Wis.2d 181 (Ct. App. 2002): </i> In discussing the relation back doctrine, the court indicated that if the claim asserted in the amendment arises out of the same transaction, occurrence or event set forth in the original complaint, relation back is "presumptively appropriate." However, the court can deny relation back if it would be prejudicial to the other party.</div>
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<i>Bartels v. Rural Mut. Ins. Co., 275 Wis.2d 739 (Ct. App. 2004):</i> In this case, the court indicated that an amended complaint cannot resurrect an original complaint that was not properly commenced. The court further stated that if a party is given fair notice within the statutory time limit of the facts out of which the claim arises it is not deprived of any protections that the statute of limitations was designed to afford. The court reiterated that the Relation Back Doctrine has four conditions:</div>
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1) The basic claim must have arisen out of conduct set forth in the original pleading.</div>
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2) The party to be brought in must have received notice so it will not be prejudiced in maintaining its defense</div>
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3) The party knew or should have known that but for mistake of identity the action would have been brought</div>
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against it and</div>
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4) Most significantly, conditions 2 and 3 must have been fulfilled within the prescribed statute of limitations period.</div>
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<i>Dakin v. Marciniak, 280 Wis.2d 491 (Ct. App. 2005): </i> In this case, the court indicated that adequate notice in the complaint is necessary if the statute of limitations protection is to be guaranteed. Formal and reasonable notice must be given. The court set forth that constructive notice is not good enough to allow relation back to apply to a new party. The court also indicated that the discovery rule is not applicable and dthat not all parties must be known before the statute of limitations starts running.</div>
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<i>Barnes v. WISCO Hotel Group, 318 Wis.2d 537 (Ct. App. 2009): </i>In this case, the court found that the relation back doctrine did not apply because the new party added to the amended complaint after the statute of limitations ran had no notice before it ran. Where there is no notice there is no relation back.</div>
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<i>Tews v. NHI, LLC, 330 Wis.2d 389 (2010):</i> In this case the court set forth that the purpose of the Relation Back statute -- 802.09(3) -- is to ameliorate the effect of the statute of limitations in situations where the opposing party has received fair notice of the claim. The court stated that "pleading should not be a game of skill in which one misstep by counsel may be decisive of the outcome .. therefore, Wisconsin has abandoned the highly formal concepts of common law form pleading in favor of a more functional concept of notice pleading." When a defendant is added as a party after the statute of limitations has run and all requirements of the Relation Back statute are satisfied - fair notice has been provided and the added defendant has been given full benefit of the protection that the statute of limitations was intended to provide. The court reiterated that the Relation Back statute requires:</div>
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1) The claim asserted arose out of the same transaction, occurrence or event set forth in the original complaint</div>
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2) Within the time period provided by law for commencing the action the defendant received notice of the institution of the action and that it will not be prejudiced in maintaining a defense on the merits</div>
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3) Within the time period provided by law for commencing the action the defendant knew or should have known that but for mistake concerning identity of proper party that the action would have been brought against the added defendant.</div>
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The court went on to indicate that the statute of limitations is not to be used mechanically to prevent adjudication of a claim where real parties in interest were sufficiently alerted to proceedings or were involved in them unofficially from an early stage. Once the Relation Back Doctrine's requirements are met, relation - back is mandated.</div>
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<i>Wiley v. MMN Laufer Family Ltd Partnership, 338 Wis.2d 178 (Ct. App. 2011): </i> In this case the court held that suing a <u>business</u> did not give notice to the <u>building owner</u> that it was a proper party. The facts were not such that the building owner knew or should have known that but for a mistake concerning identity the action would have been brought against it.</div>
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Conclusion</div>
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A careful examination of case law reveals that the Relation Back Doctrine is all about "Notice." It is incumbent upon a plaintiff's counsel to undertake a sufficient investigation to uncover the identity of all party defendants before the statute of limitations runs. In the event counsel is unable to do so, or in the event that counsel is unsuccessful within the statute of limitations, it is critical that an investigation be undertaken to factually establish actual notice of the action by the party to be added before the statute of limitations ran and to factually establish that the party to be added knew or should have known that but for mistake of identity the action would have been brought against it sooner. </div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-27590966033442781982013-07-29T14:58:00.004-05:002013-07-29T14:58:43.272-05:00TPR ACTIONS IN WISCONSIN: THE DIFFERENCE BETWEEN INVOLUNTARY AND VOLUNTARY PROCEEDINGS<br />
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<b>By: John J. DiMotto<o:p></o:p></b></div>
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<b>INTRODUCTION<o:p></o:p></b></div>
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In Wisconsin, there are two types of termination of parental
rights (TPR) cases. First, there can be a government commenced Involuntary TPR
action brought by a County District Attorney’s Office or by a County Department
of Human Services against a parent who has abused or neglected a child. Second, there can be a private Voluntary TPR
action brought by a parent who makes the decision during pregnancy or shortly
after the birth of the child to give the child up for adoption.<o:p></o:p></div>
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All TPR actions are closed to the public under 48.299 and
all records of the proceedings are subject to confidentiality under 48.78. Furthermore, because of the extremely
sensitive nature of juvenile court proceedings, including TPR and Adoption
cases, any person who divulges any information which would identify the child,
the expectant mother or the family involved in any proceeding shall be subject
to contempt proceedings under Chapter 785.<o:p></o:p></div>
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<b>INVOLUNTARY TPR ACTION<o:p></o:p></b></div>
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An involuntary TPR action is a government-endorsed petition
that is commenced by a County District Attorney or County Department of Human
Services. This case is commenced when:<o:p></o:p></div>
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<div class="MsoListParagraphCxSpFirst" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->1.<span style="font-size: 7pt;"> **</span>A parent has abused or neglected a child;<o:p></o:p></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->2.<span style="font-size: 7pt;"> **</span><!--[endif]-->A County Child Protective Services unit has removed a
child from the parental home due to the abuse or neglect;<o:p></o:p></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->3.<span style="font-size: 7pt;"> **</span><!--[endif]-->A court approves the removal and detention of a child
and placement in a foster home, group home or home of a relative;<o:p></o:p></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->4.<span style="font-size: 7pt;"> **</span><!--[endif]-->A court enters an order in a CHIPS (Child in Need of
Protection or Services) case setting forth “conditions of return” that a parent
must meet in order for the child to be returned to the parent;<o:p></o:p></div>
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<!--[if !supportLists]-->5.<span style="font-size: 7pt;"> **</span><!--[endif]-->Fifteen months go by and the parent has not met the
“conditions of return.”<o:p></o:p></div>
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If an involuntary TPR action is commenced because the parent
does not meet the conditions of return, the parent has the right to contest the
action. The parent is entitled to a jury
trial or a court trial where a jury or a judge decides whether the DA or the
attorney for the County Department of Human Services has proven by clear,
convincing and satisfactory evidence the grounds alleged in the TPR petition. The
three most common grounds for termination are “Abandonment” under 48.415(1);
“Child in Continuing Need of Protection or Services under 48.415(2); and
“Failure to Assume Parental Responsibility” under 48.415(6). <o:p></o:p></div>
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If grounds are proven, the court will then conduct a
Dispositional Hearing where the judge alone decides whether or not to terminate
parental rights There is no right to a
jury in the Dispositional Phase. The
decision of the court is based on what the judge believes is in the best
interest of the child based on all the information brought to the court’s
attention. <o:p></o:p></div>
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If a parent does not come to court to contest the grounds
alleged in the involuntary petition, the court can take action against the
parent. The court can enter a “default
judgment” against the parent, proceed with a Dispositional Hearing in the
absence of the parent and terminate parental rights. If parental rights are terminated, the child
can then be adopted.<o:p></o:p></div>
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<b>VOLUNTARY TPR ACTION</b><o:p></o:p></div>
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A voluntary TPR action is a private action commenced by a
parent who has decided to terminate parental rights. It is usually a circumstance where a woman
during her pregnancy makes the decision to give the child up for adoption. She must contact an adoption agency and work
with the agency to find a suitable couple or person to adopt the child. Usually, the mother selects the couple or
person whom she wants to adopt the child.
The child can be voluntarily placed with a suitable “adoptive couple” or
“adoptive person” under a Voluntary Placement Agreement, but the agreement clearly
states that the child may be returned to the birth parent at any time upon
request of the parent prior to the termination of parental rights.<o:p></o:p></div>
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When a private, voluntary TPR action is filed by a parent,
it is necessary for the court to conduct a hearing with the parent to determine
whether the decision to terminate parental rights has been made freely,
voluntarily, knowingly and intelligently and that the parent has not been
coerced in any way. The parent must come
to court to answer the court’s questions.
<o:p></o:p></div>
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<o:p></o:p></div>
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It is not unusual for a parent to have second thoughts or
some hesitation. Under those
circumstances, the attorney for the
“adoptive couple” or “adoptive person” usually asks the court for an
adjournment to procure the appearance of the parent so the case can
continue. The court is willing to
accommodate such requests for adjournments until the parent is ready to make
the final decision. <o:p></o:p></div>
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<div class="MsoNormal">
If the parent wishes to speak with an attorney about the
decision, the parent has a right to hire an attorney. If the parent is indigent, the court oftentimes
will appoint a lawyer at county expense to consult with the parent. The cost is usually minimal – in the range of
$300. This is done because Chapter 48
makes clear, that the court must ensure that the decision made by the parent is
truly voluntary.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
If the parent absolutely refuses to come to court or if the
parent does come to court but ultimately decides not to terminate parental
rights, the court must dismiss the action.
The court has no other choice and, in particular does not have the power
to convert a private, voluntary TPR action into an involuntary action. Said otherwise, the court has no power to
involuntarily terminate a parent’s rights in a private, voluntary TPR
action. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In those cases where the parent decides not to terminate
parental rights, the child must be returned to the parent. When that happens, it is very sad, even
devastating, for the “adoptive couple” or
“adoptive person.” They feel bereft and
upset because they have established a bond with the child and may also have
invested substantial amounts of money in the adoptive process which they will
not recoup. Oftentimes they are very
angry and cannot understand why the court seems deferential to the parent’s
rights and why the court must consider the emotional state of the parent as it
bears on voluntary nature of the decision to terminate parental rights It may be hard to accept that in a private,
voluntary TPR action, the court has no power to force a parent into terminating
parental rights. However, it must be the
parent’s decision and it must be a completely free, voluntary, intelligent and
knowing decision made without reservation.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<b>CONCLUSION<o:p></o:p></b></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<br /></div>
<div class="MsoNormal">
In a governmental, involuntary TPR action, the case is
controlled by the governmental agency bringing the action. The feelings of the parent do not govern how
the case is processed. If a person fails
to come to court in an involuntary TPR action, the court can enter a default
judgment and proceed to terminate parental rights even without the parent being
in court.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In contrast, in a private, voluntary TPR action, the case is controlled by the parent bringing the action. If the parent chooses to follow through with the termination, the court must be satisfied that the decision has been made freely, voluntarily, knowingly, intelligently and with a full understanding of the impact of and the alternatives to termination. If the parent has reservations or deliberately chooses not to follow through with the termination, the court has no discretion and must dismiss the case.</div>
<div class="MsoNormal">
<br /></div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com34tag:blogger.com,1999:blog-5077774759289052226.post-87337917721845880292013-07-11T13:30:00.000-05:002013-07-11T13:30:10.258-05:00The Validity of Surrogacy Agreements in Wisconsin<div style="text-align: center;">
By John DiMotto</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
In a blockbuster decision today, the Wisconsin Supreme Court, in <i>Rosecky v. Schissel, 2013 WI 66, ___Wis.2d ___</i>, upheld the validity and enforceability of all but one provision in a Surrogacy Agreement. In the decision, the Court addresses the tragic quagmire that results when the surrogate mother changes her mind and does not want to terminate her parental rights in accordance with the agreement. The Court urges the Wisconsin Legislature to "address surrogacy agreements to ensure that when the surrogacy process is used, the courts and the parties understand the expectations and limitations under Wisconsin Law."</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
Facts</div>
<div style="text-align: left;">
The facts in this case reveal that David and Marcia Rosecky entered into a Parentage Agreement with their good friends, Monica and Cory Schissel. Due to health issues, Marcia could not become pregnant. Monica offered to act as a surrogate for the Roseckys. After extensive conversation about the legal ramifications of surrogacy, they each retained legal counsel and the four of them executed a Parentage Agreement. They agreed that Monica would become pregnant and carry the child for the Roseckys; that the Roseckys would be the legal parents of the child; that the best interests of the child would be served by being in the Roseckys' legal custody and physical placement; and that the parties would cooperate fully in any parentage proceedings to determine the Roseckys as the child's legal parents, including termination of parental rights and adoption. Monica became pregnant through artificial insemination using her egg and David Rosecky's sperm. Prior to the birth of the child, the Roseckys and the Schissels had a falling out. As a result, Monica reneged on the Parentage Agreement and refused to terminate her parental rights. After the birth of the child, David Rosecky commenced a paternity action and was adjudicated father of the child. A guardianship action was also commenced to resolve all other issues in the Parentage Agreement. The trial court found that the Parentage Agreement was not enforceable; that the Monica could not be forced or required to terminate her parental rights; that custody and placement could not be decided under the Parentage Agreement but rather would be decided under Chapter 767 provisions regarding custody and placement. The trial court granted David primary physical placement and granted Monica periods of placement finding this to be in the best interest of the child. This appeal resulted.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
Majority Opinion</div>
<div style="text-align: left;">
In its decision, the Court held:</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) Contract law principles apply when examining a surrogacy agreement.</div>
<div style="text-align: left;">
2) The Parentage Agreement contains the essential elements of a contract.</div>
<div style="text-align: left;">
3) While traditional defenses to the enforcement of a contract apply in the context of a surrogacy agreement, none are present here to render the Parentage Agreement unenforceable.</div>
<div style="text-align: left;">
4) The portions of the Parentage Agreement requiring a voluntary TPR do not comply with the procedural safeguards set forth in 48.41 because Monica would not consent to TPR and there is no legal basis for involuntary termination, however, aside from the TPR provisions in the Parentage Agreement, the agreement is a valid and enforceable contract unless enforcement is contrary to the best interest of the child.</div>
<div style="text-align: left;">
5) The severability clause in the Parentage Agreement is valid.</div>
<div style="text-align: left;">
6) A Parentage Agreement is not contrary to public policy.</div>
<div style="text-align: left;">
7) The trial court erred in excluding the Parentage Agreement.</div>
<div style="text-align: left;">
8) The trial court erred in rendering its custody and placement decision without consideration of the Parentage Agreement.</div>
<div style="text-align: left;">
9) The case be remanded to the trial court for a hearing on custody and placement, wherein the terms of the Parentage Agreement are enforced unless enforcement is contrary to the best interests of the child.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
In arriving at its decision, the Court discusses and highlights;</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) that surrogacy has created ways for people to have children regardless of their reproductive capacity;</div>
<div style="text-align: left;">
2) that surrogacy agreements outline the rights and responsibilities of all parties throughout the process in order to effectuate their intent. </div>
<div style="text-align: left;">
3) that the Wisconsin Statutes do not provide a specific answer to whether the Parentage Agreement is enforceable; </div>
<div style="text-align: left;">
4) that the Wisconsin Statutes do not contain a position of public policy with respect to surrogacy;</div>
<div style="text-align: left;">
5) that the Wisconsin Statutes do not contemplate nor address the use of a surrogacy parenting agreements in the adjudication of custody and placement disputes;</div>
<div style="text-align: left;">
6) that the Wisconsin Statutes do not contemplate nor address surrogacy vis a vis adoption and termination of parental rights;</div>
<div style="text-align: left;">
7) that the TPR-Adoption scheme does not provide relief in a surrogacy scenario;</div>
<div style="text-align: left;">
8) that the interests supporting enforcement of a Parentage Agreement are more compelling than interests against enforcement because enforcement promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
Concurring Opinion</div>
<div style="text-align: left;">
While the Court was unanimous in the result, Chief Justice Abrahamson wrote a concurring decision. She believes: </div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
1) that the issues of custody and placement should be determined based on the best interest of the child from the factors in Chapter 767 -- 767.41(5)(am) -- and not based on the surrogacy agreement. </div>
<div style="text-align: left;">
2) that the majority opinion's "authorization of people to contract out of the State's traditional oversight role in the protection of children." is wrong.</div>
<div style="text-align: left;">
3) that custody and placement of children born of surrogacy should not have different rights and be treated differently from any other child. </div>
<div style="text-align: left;">
4) that the majority holding that "a Parentage Agreement is a valid, enforceable contract unless enforcement is contrary to the best interest of the child." is overly broad.</div>
<div style="text-align: left;">
5) that the trial court should adhere to the legislative directions in Chapter 767 since this is an action affecting the family and Chapter 767 addresses custody and placement.</div>
<div style="text-align: left;">
6) that any change in the law and the procedure regarding actions involving paternity, legal custody, and physical placement of a child when an alternative reproductive method and a surrogacy contract are implicated should not be undertaken by the Court; </div>
<div style="text-align: left;">
7) any change here is a task best left to the legislature.</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: center;">
Conclusion</div>
<div style="text-align: left;">
While the Wisconsin Supreme Court has finally addressed the issue of surrogacy contracts, it remains to be seen whether the Wisconsin Legislature will step into the breach and address the concerns set forth in both the majority and concurring opinions. Unless the Wisconsin Legislature does so, parties to a surrogacy contract will be free to set their own rules regarding how to address all of the very thorny issues surrounding surrogacy. This scenario is rife with problems which can contribute to great instability in the life of a child born of surrogacy. Only time will tell.</div>
<div style="text-align: left;">
</div>
<div style="text-align: left;">
<br /></div>
<div style="text-align: left;">
</div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com1tag:blogger.com,1999:blog-5077774759289052226.post-67324954297978195282013-07-02T15:49:00.001-05:002013-07-02T15:49:25.523-05:00Review of SCOTUS Decisions - End of 2012-2013 Term: Fisher v. University of Texas at AustinIn addition to SCOTUS addressing the Voting Rights Act of 1965 and the Indian Child Welfare Act in its final week, the Court once again addressed the issue of Affirmative Action. Today, I would like to look at and analyze <a href="http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf"><i>Fisher v. University of Texas at Austin, 570 U.S. ___(2013)</i><i>.</i></a><br />
<i><br /></i>
In a 7-1 decision (Justice Kagan took no part in the consideration or decision), The Court ultimately re-affirmed the viability of Affirmative Action but not without first making it perfectly clear that the demanding burden of strict scrutiny articulated in <i>Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) </i>and reiterated in <i>Grutter v. Bollinger, 539 U.S. 306 (2003) </i>must be adhered to and complied with without fail.<br />
<br />
The history of the case reveals that the petitioner, who was rejected for admission to the University of Texas, sued the University alleging that its consideration of race in admissions violated the Equal Protection Clause. The District Court granted summary judgment to the University and the Fifth Circuit Court of Appeals upheld the University's admission plan in light of <i>Grutter. </i><br />
<i><br /></i>
In the decision of the Court, authored by Justice Kennedy, the Court held that the Fifth Circuit did not apply the correct standard of strict scrutiny, its decision affirming the District court's grant of summary judgment to the University was incorrect and, as such, its decision is vacated that the case is remanded for a further hearing on whether the University improperly considered race in admissions.<br />
<br />
The Court takes a "walk down memory lane" in its discussion of previous cases dealing with Affirmative Action. <br />
<br />
The Court notes that in <i>Bakke, </i>Justice Powell, writing for the Court stated that "any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.'"<i> </i>Furthermore, Justice Powell stated that one compelling interest that could justify the consideration of race was the interest in the educational benefits that flow from a diverse student body. However, the interest in securing diversity's benefits was noted to be complex.<br />
<i><br /></i>
The Court also notes that in <i>Grutter </i>the Court reiterated that race may not be considered unless the admissions process can withstand strict scrutiny. Furthermore, <i>Grutter</i> sets forth that "to be narrowly tailored, a race-conscious admissions program cannot use a quota system, but must instead 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'" <br />
<br />
The Court embraces the principle in <i>Bakke </i> that strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose."<br />
<br />
Justice Kennedy clearly sets forth that the University must establish both that its goal of diversity is consistent with strict scrutiny and that the admissions process also meets strict scrutiny in its implementation. In other words, the University must "prove that the means chosen ... to attain diversity are narrowly tailored to that goal." Justice Kennedy, once again quoting from <i>Grutter</i> says "it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'" Furthermore, the court held that "narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications." In the concluding paragraph, Justice Kennedy writes "strict scrutiny must not be 'strict in theory, but fatal in fact." But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that 'encompasses a ... broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."<br />
<br />
Justice Thomas wrote a concurring opinion. He writes that he would hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.<br />
<br />
Justice Ginsburg wrote the lone, and brief, dissent. She would not return the case for a second look. She would find that the University's admissions policy flexibly consider race only as a "factor of a factor of a factor of a factor" in the calculus and that <i>Bakke</i> and <i>Grutter </i>do not require any further determinations.<br />
<br />
The Court's decision makes it clear that race can still be a factor, but in a very, very limited way. The question raised by this decision is whether it is a precursor to completely barring race as a factor in a future case; that is whether this decision is the <i>Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) </i>of Affirmative Action. Only time will tell.<br />
<br />
<br />John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com1tag:blogger.com,1999:blog-5077774759289052226.post-60765928616628350872013-07-01T16:11:00.000-05:002013-07-01T16:11:16.910-05:00Review of SCOTUS Decisions - End of 2012 - 2013 Term --- Adoptive Couple v. Baby GirlToday I would like to look at another one of the last decisions issued by SCOTUS in the 2012 - 2013 Term. It is a case which addresses three provisions of the Indian Child Welfare Act. The case is <i>Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013)</i>.<br />
<br />
The Indian Child Welfare Act (ICWA) establishes federal standards for state court child custody proceedings involving Indian children. Congress enacted ICWA to address the consequences of abusive child welfare practices that separated Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. see <i>Mississippi Band of Choctow Indians v. Holyfield, 490 U.S. 30 (1989).</i><br />
<i><br /></i>
There are three specific provision of ICWA that were addressed in <i> Baby Girl:</i> Section 1912(d), Section 1912(f) and Section 1915(a).<br />
<br />
Section 1912(d) requires that any party seeking an involuntary termination of parental rights to an Indian child under state law must demonstrate that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."<br />
<br />
Section 1912(f) sets forth that a state court may not involuntarily terminate parental rights to an Indian child "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."<br />
<br />
Section 1915(a) sets forth, with respect to adoptive placements for an Indian child under state law, that "a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."<br />
<br />
In <i>Baby Girl</i>, the father, who was a Native American with Cherokee heritage, provided no support for the birth mother, who was not Native American, nor did he provide any support for the child or make any meaningful attempts to assume parental responsibility. When the family selected by the mother to adopt <i>Baby Girl </i> gave the father notice of the pending adoption he did not initially object. However, before the adoption could be finalized he sought a stay of the proceedings and sought custody. Ultimately, a trial was held in a South Carolina state court when the child was two years old. The Family Court determined that the adoptive couple did not carry the heightened burden under 1912(f) of proving that <i>Baby Girl,</i> would suffer serious emotional or physical damage if the biological father had custody. The petition for adoption was denied and custody awarded to the biological father. At age 27 months, the child was handed over to the biological father whom she had never met. The South Carolina Supreme Court affirmed the Family Court's denial of the adoption and awarding of custody to the biological father. It found that the biological father came within the ICWA definition of "parent" and that the requirements of 1912(d) and 1912(f) were applicable and were not proven. It also stated that if it had decided to terminate the biological father's parental rights that the provisions of 1915(a) - the adoption placement preferences -- would have applied. SCOTUS granted certiorari and reversed the decision of the South Carolina Supreme Court.<br />
<br />
In the decision of the Court, Justice Alito, writing for the Court, indicated that neither 1912(f) nor 1912(d) bars termination of the biological father's parental rights in this case. <br />
<br />
With respect to 1912(f), Justice Alito wrote that 1912(f) requires as a condition precedent that the parent at issue have custody of the child in the first instance since 1912(f) sets forth that "no termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt ... that the <b>continued custody</b> of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (emphasis added). The Court held that the adjective <b>continued</b> is critical in the analysis and plainly refers to a pre-existing state. As a result, 1912(f) does not apply to an Indian parent who never had custody of the Indian child.<br />
<br />
With respect to 1912(d), Justice Alito wrote that 1912(d) requires "active efforts"... to prevent the breakup of the Indian family and that "breakup" refers to "the discontinuance of a relationship." Where a parent has no relationship, 1912(d) is inapplicable. Here, the Court found that there was no relationship to breakup and as such 1912(d) is not applicable to the biological father.<br />
<br />
Finally, with respect to 1915(a), the Court held that its rebuttable adoption preferences apply only when an alternative party has formally seeks to adopt the child. Here, since no alternative party had done so it is inapplicable.<br />
<br />
As a result, the Court reversed the decision of the South Carolina Supreme Court.<br />
<br />
In a lengthy dissent written by Justice Sotomayor, she writes that the majority has misconstrued the statutes and illogically reads the statutes at issue. She writes that the majority opinion turns section 1912 upside down and contrary to Congress' express purpose in enacting ICWA: that is, in preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with future citizens who are "vital to their continued existence and integrity." She concludes that "the majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone."<br />
<br />
Justice Scalia, in a brief dissent, writes "The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is "in the best interest of the child." It sometime is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."<br />
<br />
In the final analysis, if an Indian parent wants the protection afforded an Indian parent by sections 1912(d) and 1912(f), that parent must have a pre-existing custodial relationship with the child.<br />
<br />
<br />John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-59419700680111327642013-06-27T12:44:00.000-05:002013-06-27T12:44:29.005-05:00Review of SCOTUS Decisions - End of 2012-2013 Term - Shelby County v. HolderThe final week in each SCOTUS term is always very interesting in light of the fact that the Court announces its most important and "blockbuster" decisions at that time. Some say they "save their best for last." This year is no different. The Court released decisions addressing:<br />
<br />
Affirmative Action<br />
The Voting Right Act of 1965<br />
The Indian Child Welfare Act<br />
Same Sex Marriage<br />
<br />
The decision addressing Affirmative Action, <i>Fisher v. University of Texas at Austin, 570 U.S. ____ (2013),</i> is, in essence, a reaffirmation of the Court's holding in <i>Grutter v. Bollinger, 539 U.S. 306 (2003). </i><br />
<br />
The decision addressing the Indian Child Welfare Act,<i>Adoptive Couple v. Baby Girl, 570 U.S. ____ (2013),</i> in essence, clarifies when a heightened showing that serious harm to an Indian child must be established; when remedial efforts must be undertaken and when "Indian" placement must be given preference.<br />
<br />
The decisions addressing the Voting Rights Act, <i>Shelby County, Alabama v. Holder, 570 U.S. ____ (20130,</i> and Same Sex Marriage, <i>Hollingsworth v. Perry, 570 U.S. ____ (2013) </i>and <i>United States v. Windsor, 570 U.S. ___ (2013) </i> are considered more groundbreaking and from the discussion in the public domain may well have the greatest impact on the daily lives of Americans in both the near and distant future.<br />
<br />
Today, I would like to look at and analyze <i>Shelby County, Alabama v. Holder.</i><br />
<i><br /></i>
In a 5-4 decision, authored by Chief Justice Roberts, the Court addressed Sections 2, 4 and 5 of the Voting Rights Act of 1965 (VRA). <br />
<br />
In addressing Section 4, the Court held Section 4, which provides a "coverage formula" defining the "covered jurisdictions" -- States or political subdivisions that maintained tests or devices as prerequisites to voting and had low voter registration or turnout n the 1960's and early 1970's -- to be unconstitutional. In essence, the Court held that the extraordinary measures in the VRA (requiring "covered jurisdictions" to obtain preclearance from the federal government before enacting changes in voting procedures) to address the extraordinary problems in the 1960's in "covered jurisdictions" (racial discrimination in voting that was an insidious and pervasive evil) was no longer justified. <br />
<br />
In addressing Section 2, the Court held that Section 2, which bans any "standard, practice or procedure" that "results in denial or abridgment of the right of any citizen...to vote on account of race or color" remains constitutional and remains intact and in effect. It applies nationwide and is permanent. Section 2 provides the basis for any lawsuit against any State or political subdivision that enacts any such standard, practice or procedure that results in denial or abridgment of the right of any citizen to vote on account of race or color. <br />
<br />
In addressing Section 5, the Court held that Section 5, which provides that no change in voting procedures can take effect in those "covered jurisdictions" until approved by the federal government -- known as preclearance -- remains in effect. The Court issued no holding on Section 5 itself. However, unless and until Congress re-enacts Section 4 based on current data and establishes new "covered jurisdictions," the Section 5 preclearance requirement has no applicability.<br />
<br />
The rationale for the Court's determination that Section 4 is unconstitutional is that times have changed and the data relied upon to establish "covered jurisdictions" no longer supports the original designations. In other words, the current burdens imposed on "covered jurisdictions" are no longer justified by current needs. Furthermore, if the basis for the "covered jurisdiction " determination no longer exists, to continue the need for preclearance under Section 5 is unwarranted. While the Court does not directly say it, the Court seems to imply that given the lack of a current need for "covered jurisdictions" that a continuation of Section 4 amounts to an infringement on the power of the State to regulate elections under the 10th Amendment -- that Section 4 is extraordinary legislation no longer justified by exceptional conditions. In other words, what made sense almost 50 years ago no longer makes sense. The Court set forth that "There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago."<br />
<br />
The Court concludes the decision setting forth, "Congress may draft another formula based on current conditions. Such formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an 'extraordinary departure from the traditional course of relations between the States and the Federal Government.'...Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."<br />
<br />
Justice Thomas wrote a concurring opinion. In it he would find that both Sections 4 and 5 unconstitutional. He holds that these sections are "extraordinary" and "unprecedented."<br />
<br />
Justice Ginsberg wrote a dissenting opinion. She writes that the Court has found that the very success of Section 5 demands its dormancy and that the Court terminates the remedy that proved to be best suited to block that discrimination. She writes that the success of the VRA is due to the requirement of Section 5 preclearance in "covered jurisdictions. She sets forth multiple examples of discriminatory changes attempted in "covered jurisdictions" that were blocked by preclearance. She writes that "the Court strikes Section 4(b)'s coverage provision because, in its view, the provision is not based on 'current conditions.'...It discounts, however, that one such conditions was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways....Volumes of evidence supported Congress' determination that the prospect of retrogression was real.. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." She further writes that the record supporting the 2006 reauthorization of the VRA is also extraordinary. She concludes, "after exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution....That determination of the body empowered to enforce the Civil War Amendments 'by appropriate legislation' merits this Court's utmost respect.<br />
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Some people believe that this decision will allow States or political subdivisions to enact racially discriminatory voter suppression legislation with impunity. Such should not be the case. Any standard, practice or procedure that results in denial or abridgment of the right of any citizen to vote on account of race or color will still violate the VRA. What this decision does change is how alleged violations will be addressed. Instead of preclearance <b>before</b> enactment, the remedy now will be a federal lawsuit <b>after</b> enactment, under Section 2. It can be anticipated that the lawsuit will seek an injunction, preventing the implementation of law, until its constitutionality is determined. John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-33582977766850298592013-04-03T15:17:00.000-05:002013-04-03T15:17:20.251-05:00<div style="text-align: center;">
Class Action Lawsuits Under Wisconsin Law</div>
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By Judge John DiMotto</div>
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I recently had a conversation with my judicial colleague, Rock County Circuit Court Judge Michael Fitzpatrick, about Class Action law in Wisconsin. He sent me a copy of an opinion and order he authored with respect to a motion to certify a class. He suggested that it might be an interesting topic for this blog. After reading his opinion and order, it prompted me to look closer look at the Wisconsin statute governing Class Actions as well as Wisconsin case law that addresses them. I agree that it is an area of the law worth exploring and I thank him for his suggestion and his research which I have used extensively throughout this blog entry.</div>
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Wisconsin Statute Section 803.08</div>
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Section 803.08 of the Wisconsin Statutes addresses Class Actions in Wisconsin. It sets forth:</div>
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"When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, except that no claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state."</div>
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A cursory reading of this statute might give the impression that class action lawsuits can easily be brought. A reading of Wisconsin and federal appellate decisions tells us that nothing is farther from the truth. What is meant by "common"; what is meant by "general interest"; what is meant by "impracticable"; what is meant by "the benefit of the whole"; is subject to differing interpretations depending on your position in the case. As was stated in <i>Mercury Records v. Economic Consultants, 91 Wis.2d 482, 490-491 (Ct. App. 1979): "</i>There has been no real guidance given by our Supreme Court in the area of state procedural requirements for class actions." However, an examination of appellate cases that have addressed class actions do offer some direction.</div>
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Class Action Prerequisites</div>
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In <i>Hermanson v. Wal-Mart, 290 Wis.2d 225 (Ct. App. 2006)</i>, the court addressed 803.08 and set forth the four prerequisite to class certification:</div>
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1) There must be a common or general interest shared by all members of the class;</div>
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2) The named parties must fairly represent the interest involved;</div>
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3) It must be impracticable to bring all interested parties before the court; and.</div>
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4) The proposed class must be manageable.</div>
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The <i>Hermanson</i> court indicated that the trial court must determine whether the advantages of disposing of the entire controversy in one proceeding are outweighed by the difficulties of combining divergent issues and person. In essence, the trial court's decision regarding class certification is discretionary. Furthermore, in that exercise of discretion, the trial court must respect the fact that 803.08 does not trump the defendant's right to a jury trial. In that regard the manageability prerequisite must be carefully considered.</div>
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Common or General Interest Prerequisite</div>
In determining whether common or general interests are shared by members of the class, it is important to recognize that it is not necessary for all member to share all interests but only that they share a common interest. see <i>Hogan v. Musolf, 157 Wis.2d 362, 379 (Ct. App. 1990).</i> What is important is that all members of the class desire the same outcome of the lawsuit. see <i>Mercury Records, supra.</i> What is necessary is that there be a community of interest among them involving the general controversy. see <i>Goebel v. First Federal Savings, 83 Wis.2d 668 (1977). </i>Furthermore, class members can have distinct causes of action yet the class may be certified if the common issues outweigh separate issues. see <i>Schlosser v. Allis-Chalmers, 65 Wis.2d 153, 173 (1974).</i><br />
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Fair Representation Prerequisite</div>
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Adequate representation is the foundation which renders class actions consistent with due process. The criteria of adequate representation is whether class attorneys are qualified, experienced and able to conduct the litigation and whether the plaintiffs or attorneys have interests antagonistic to absent class members. see <i>Cruz, supra.</i> Before counsel undertakes a class action lawsuit, counsel must understand both the complexity of the issues and the time commitment to the action. Class action lawsuits are not for the "faint of heart" attorneys.</div>
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Impracticable Prerequisite</div>
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The question of impracticality addresses what Wisconsin case law talks about as "numerousness." see <i>Cruz v. All Saints Healthcare System, Inc., 242 Wis.2d 432 (Ct. App. 2001). T</i>his factor requires a showing only that joinder is impracticable but not impossible. Plaintiffs only need to show that joining all members of the class as named parties would be difficult. see <i>Morales v. Greater Omaha Packing Co., 266 F.R.D. 294 (D. Neb. 2010). </i>Judicial economy is an issue to be considered by the trial court in the exercise of discretion. <br />
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Manageability Prerequisite</div>
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The question of manageability necessitates an analysis and assessments of the benefits and the burdens of the class action. The court must weigh these competing interests in light of the issues in the case. An obvious benefit is the hope that one trial can address liability and damages. However, the right a a jury trial attends a class action lawsuit and must be a consideration for the trial court. see <i>Markweise v. Peck Foods Corp., 205 Wis.2d 207 (Ct. App. 1996). </i>A class action jury trial could cause nightmares for a trial judge with a heavy docket. 803.08 does not trump the right to a jury trial. see <i>Hermanson, supra.</i> Manageability deals with what is practical in the real world.</div>
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<span style="text-align: center;">The proper exercise of discretion is the paramount concern of a trial court when faced with the decision of whether to certify a class and allow a plaintiff to proceed with a class action lawsuit. The decision will have serious ramifications on all involved in the case. Discretion is properly exercised if the trial court examines the relevant facts, applies a proper legal standard and, in a rational process, reaches a conclusion that a reasonable judge could reach. Clearly, the utmost caution and care must be exercised if the court is to properly exercise its discretion.</span></div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-22404503703526855652012-10-29T15:23:00.000-05:002012-10-29T15:23:03.598-05:00Wisconsin's Good Samaritan Law<div style="text-align: center;">
By John DiMotto</div>
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Section 895.48(1) of the Wisconsin statutes sets forth that:</div>
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any person who renders emergency care at the scene of any emergency</div>
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or accident in good faith shall be immune from civil liability for his or her </div>
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acts or omissions in rendering such emergency care. This immunity does </div>
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not extend when employees trained in health care or heal care </div>
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professionals render emergency care for compensation and within the </div>
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scope of their usual and customary employment or practice at a hospital </div>
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or other institution equipped with hospital facilities, at the scene of any </div>
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emergency or accident, enroute to a hospital or other institution equipped </div>
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with hospital facilities or at a physician's office.</div>
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This statute is commonly referred to as a "Good Samaritan Law" and the intent of this law is to encourage people, particularly people with medical training and experience, to take action in an emergency situation to provide needed medical attention by providing them with immunity from civil, legal action.</div>
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One of the first appellate cases to discuss Wisconsin's Good Samaritan Law was <i>Mueller v. McMillian Warner Ins. Co., 287 Wis.2d 154 (Ct. App. 2005). </i>The decision addresses the critical words of the statute, giving them their ordinary meanings:</div>
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1) "Scene" is the "place of the occurrence or action" or "locale."</div>
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2) "Emergency" means "an unforeseen combination of circumstances or the resulting state that calls for immediate action" and "a sudden bodily alteration such as is likely to require immediate medical attention."</div>
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3) "Accident" means "a chance ... sudden event or change occurring without intent or volition ... an unexpected medical development esp. of an unfavorable or injurious nature."</div>
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4) "Care" is a general term whose definitions range from "suffering of mind" to "serious attention" to "custody...charge, supervision, management."</div>
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5) "Good faith" is a term which complicates the matter. It can mean "a belief in one's legal title or right." But it can also mean "absence of fraud, deceit, collusion, or gross negligence." It can be measured subjectively or objectively.</div>
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In the decision, the court reflected that the legislative intent of the law, which was first enacted for professionals in 1963, was to encourage those with medical training to respond to emergency situations outside of the professional environment. In 1977, the legislature expanded immunity to include any person who rendered emergency care in good faith at the scene of an emergency or accident.</div>
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While the statute grants immunity from liability, it does not prevent the filing of a lawsuit against a purported Good Samaritan. A lawsuit can still be filed and the purported Good Samaritan must still defend against the lawsuit. </div>
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In <i>Clayton v. American Family Mutual Insurance Co., 305 Wis.2d 766 (Ct. App. 2007)</i> the court held that if a lawsuit is filed and the party being sued claims the protection of the Good Samaritan law, the lawsuit can continue if there is a genuine issue of material fact as to whether emergency care was rendered, if the emergency care was provided at the scene of the emergency, or if it was provided in good faith. Normally, a motion for summary judgment will be filed by the purported Good Samaritan to determine if there is a genuine issue of material fact regarding the conduct.</div>
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Conclusion</div>
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The Wisconsin legislature has provided a safeguard for medical professionals and ordinary individuals who take action to help others in emergency situations by providing immunity from liability in the creation of 895.48(1). It is a legislative declaration that people who help people should have not suffer the indignity of being punished for their acts of kindness. </div>
John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com2tag:blogger.com,1999:blog-5077774759289052226.post-60119394787495354212012-08-30T15:44:00.002-05:002012-08-30T15:44:59.074-05:00Civil Discovery In Wisconsin<div style="text-align: center;">
By John J. DiMotto</div>
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Chapter 804 of the Wisconsin Statutes addresses the rules of civil procedure with respect to discovery in civil cases. It sets for what discovery can be sought, how it can be sought, the timing of obtaining the discovery as well as sanctions for failing to comply with discovery. As is the case with most statutes, while the language of the various discovery statutes may appear clear and obvious, nothing could be farther from the truth. A look at two specific statutory sections and case law discussing those statutes and discovery in general gives us an insight into what can be a mine field for the practitioner seeking discovery.</div>
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STATUTES</div>
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804.01(1) addresses discovery methods. They include depositions upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or property for inspection purposes; physical and mental examinations and requests to admit.</div>
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804.01(2)(a) addresses the scope of discovery in general. It sets forth that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Furthermore, it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.</div>
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CASE LAW</div>
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1) Wisconsin allows pretrial discovery to speed up trials. Pretrial discovery is a fundamental due process right. <i>State v. Maday, 179 Wis.2d 346 (Ct. App. 1993).</i></div>
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2) The right to discovery is an essential element of our adversary system. In order for it to effectively ensure the ability of litigants to uncover the truth and to seek and be accorded justice, it is the court's responsibility to render decisions that do no harm to the fundamental and important right of litigants to access courts. <i>Sands v. Whitnall School District, 312 Wis.2d 1 (2008).</i></div>
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3) Wisconsin's Discovery statute is a broad charter, consistent with the underlying purpose of pretrial discovery -- designed to formulate, define and narrow issues to be tried. <i>Ranft v. Lyons, 163 Wis.2d 282 (1991).</i></div>
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4) The utmost freedom is allowed in taking depositions. Restrictions are imposed upon their use. <i>State ex rel Dudek v. Circuit Court, 34 Wis.2d 559 (1967).</i></div>
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5) Preparing for trial on issues in question is a reasonable expectation. Discovery plays a vital role in issue formulation and limitation. there is the need for effective sanctions against those who abuse discovery process. <i>Michael A.P. v. Solsrud, 178 Wis.2d 137 (Ct. App. 1993).</i></div>
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6) Discovery is designed to eliminate surprise. <i>Meunier v. Ogurek, 140 Wis.2d 782 (Ct. App. 1981).</i></div>
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7) The purpose of discovery is the ascertainment of the truth. Broad discovery rules encourage thorough investigation and fosters revelation of objective truth. Privileged matter presents limited exception to the broad scope of discovery. <i>Crawford v. Care Concepts Inc., 243 Wis.2d 119 (2001).</i></div>
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8) Discovery is vested to the sound discretion of the trial court. <i>Borgwardt v. Redlin, 196 Wis.2d 342 (Ct. App. 1995).</i></div>
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9) Management of discovery is within the discretion of the trial court. <i>Cruz v. All Saints Healthcare System Inc., 242 Wis.2d 432 (Ct. App. 2001).</i></div>
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10) Discovery disputes are addressed to the trial court's discretion. <i>Braverman v. Columbia Hospital Inc., 244 Wis.2d 98 (Ct. App. 2001).</i></div>
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11) Court can be asked to do an in camera inspection of records to decide whether the records are discoverable. <i>Konle v. Page, 205 Wis.2d 385 (Ct. App. 1996).</i></div>
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12) If a party will not comply with a request discovery request, the aggrieved party can bring a motion to compel with the trial court. <i>State v. Hydrite Chemical Co., 220 Wis.2d 51 (Ct. App. 1998).</i></div>
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13) The trial court can issue a protective order for good cause under 804.01(3)(a). <i>state ex rel Robinson v. Town of Bristol, 264 Wis.2d 318 (Ct. App. 2003).</i></div>
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14) Because of the unique character of civil discovery, trial courts have substantial latitude to fashion protective orders. <i>State ex rel Mitsubishi v. Milwaukee Co., 233 Wis.2d 1 (2000).</i></div>
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15) Upon a showing of good cause, 804.01(3)(a) authorizes the trial court to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense in a discovery proceeding. <i>State v. Beloit Concrete Stone Co,, 103 Wis.2d 506 (Ct. App. 1991).</i></div>
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16) Under 804.12(2)(b), the trial court can order attorneys fees for discovery abuse. Determinations regarding what amount of attorneys fees were reasonably incurred as a result of discovery abuses are within the discretion of the trial court. <i>Hur v. Holler, 206 Wis.2d 334 (Ct. App. 1996).</i></div>
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17) The trial court can impose sanctions for discovery violations. If the conduct is egregious or in bad faith and without clear and justifiable excuse and if a party has been given notice of potential dismissal for discovery violations the court can order dismissal with prejudice. <i>Industrial Roof</i><i>ing Services Inc. v. Marquardt, 299 Wis.2d 81 (2007).</i></div>
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18) Egregious misconduct is extreme, substantial and persistent. <i> Selmer Co. v. Rinn, 328 Wis.2d 263 (Ct. App. 2010).</i></div>
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19) Because dismissal of a complaint terminates the litigation without regard to merits of the claim, it is an extremely drastic penalty that should be imposed only where such harsh measures are necessary. Conduct must be egregious or in bad faith -- both are not needed. Bad faith must be intentional or deliberate. Egregious conduct, though unintentional, it is so extreme, substantial and persistent that the trial court may dismiss the action. If the discovery sought is peripheral, this significantly reduces the severity of the conduct. <i>Hudson Diesel Inc. v. Kenall, 194 Wis.2d 532 (Ct. App. 1995).</i></div>
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20) The trial court has the statutory and inherent authority to punish a party for failing to comply with pretrial order to disclose expert witnesses. <i>Glaeske v. Shaw, 261 Wis.2d 549 (Ct. App. 2003).</i></div>
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21) Dismissing an action or striking pleadings are severe sanctions and should not be employed for violation of trivial procedural orders. <i>Geneva National Community Assn Inc. v. Friedman, 228 Wis.2d 572 (Ct. App. 1999).</i></div>
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22) Court's discretion to impose sanctions is not dependent on showing the opposing party has been actually prejudiced by the delay. <i>Sentry Ins. v. Davis, 247 Wis.2d 501 (Ct. App. 2001).</i></div>
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CONCLUSION</div>
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Discovery is an integral part of a lawsuit. It is of the utmost importance that litigants be given the opportunity to obtain information via discovery so that the "search for the truth" can be fostered. The rules regarding discovery must be followed and sanctions for violations must imposed if the integrity of the judicial process is to prevail.</div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com2tag:blogger.com,1999:blog-5077774759289052226.post-49296726103861416652012-08-16T15:42:00.000-05:002012-08-16T15:42:21.149-05:00Credibility of Witnesses<div style="text-align: center;">
By: John J. DiMotto</div>
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One of the most important functions of the "fact finder" in a judicial proceeding is to determine the credibility of the witnesses and the weight of the evidence. In a jury trial, the "fact finder" is the jury. In a court trial or when resolving motions, the "fact finder" is the judge. So, what does the "fact finder" have to do in order to decide credibility and weight? How does the "fact finder" make the determinations. What are the guiding principles with respect to the determination of credibility or witnesses and weight of evidence? A look at Wisconsin case law and the Standard Jury Instructions, Criminal (300) and Civil (215), gives us guidance and some answers.</div>
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CASE LAW</div>
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<i>Jezeski v. Jezeski, 316 Wis.2d 178 (Ct. App. 2008)</i></div>
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1) The fact finder has the responsibility to gauge the persuasiveness of the testimony.</div>
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2) The fact finder resolves conflicts and inconsistencies in the evidence.</div>
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3) The fact finder may believe some testimony of one witness and some testimony of another even though their testimonies, read as a whole, may be inconsistent.</div>
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4) Unless testimony is inherently incredible, an appellate court may not substitute its judgment for the fact finder's judgment.</div>
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1) The fact finder is the ultimate arbiter of the credibility of witnesses and the weight to be given to each witness' testimony.</div>
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2) This is especially true because the fact finder has the opportunity to observe witnesses and their demeanor.</div>
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1) In a court trial, weight and credibility to be given to testimony is uniquely in the province of the trial court.</div>
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2) The trial court has a superior view of the total circumstances of the witness's testimony.</div>
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1) A trial court has the responsibility, when acting as the fact finder, to determine the credibility of each witness and can properly reject even uncontroverted testimony if it finds the facts underpinning the testimony untrue.</div>
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2) Even when a single witness testifies, the trial court may choose to believe some assertions of the witness and disbelieve others. This is especially true when the witness is the sole possessor of relevant facts.</div>
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<i>Bretl v. LIRC, 204 Wis.2d 93 (Ct. App. 1996)</i></div>
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1) Credible evidence is that which excludes speculation and conjecture.</div>
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<i>State v. Lossman, 118 Wis.2d 526 (1984)</i></div>
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1) In weighing evidence the jury (fact finder) may take into account matters of common knowledge and experience in the affairs of life.</div>
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1) Jurors (fact finders) are not required to base their determinations of the weight and credibility of witnesses on the number of witnesses who testify in favor of or against the existence of a disputed fact.</div>
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<i>State v. Kienitz, 227 Wis.2d 423 (1999)</i></div>
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1) The fact finder is not bound by opinion of an expert, The fact finder can accept or reject the expert's opinion.</div>
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2) The fact finder may accept certain portions of an expert's testimony while disregarding other portions.</div>
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1) Conflicts in expert testimony goes to credibility not admissibility of the evidence.</div>
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<i>State v. Turner, 186 Wis.2d 277 (Ct. App. 1994)</i></div>
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1) Credibility of witnesses is determined by words, tonal quality, volume and speech patterns -- all of which give clues as to whether the witness is telling the truth.</div>
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<i>State v. Anson, 275 Wis.2d 832 (Ct. App. 2004)</i></div>
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1) The fact finder has no obligation to believe everything a witness says.</div>
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<i>Rohl v. State, 65 Wis.2d 683 (1974)</i></div>
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1) Incredible evidence is evidence that is in conflict with uniform course of nature or with fully established or conceded facts.</div>
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<div style="text-align: center;">
<i>Cogswell v. Robert Shaw Controls Col, 87 Wis.2d 243 (1979)</i></div>
<div style="text-align: left;">
1) When more than one reasonable inference can be drawn from credible evidence, an appellate court must accept the inference drawn by the fact finder.</div>
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<br /></div>
<div style="text-align: center;">
<i>State v. Kimberly B., 283 Wis.2d 731 (Ct. App. 2005)</i></div>
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1) It if the jury's (fact finder's) task to sift and winnow the credibility of the witnesses.</div>
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<br /></div>
<div style="text-align: center;">
<i>Olson v. Milwaukee Auto Ins. Co., 266 Wis.106 (1954)</i></div>
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1) Where testimony at trial conflicts, the court must recognize that it was for the jury (fact finder) to determine where the truth lies.</div>
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<br /></div>
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<i>Yates v. Holt-Smith, 319 Wis.2d 756 (Ct. App. 2009)</i></div>
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1) Determinations of subjective interest or motivation of witness are factual ad left to the fact finder.</div>
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<br /></div>
<div style="text-align: center;">
<i>State v. Krueger, 314 Wis.2d 605 (Ct. App. 2008)</i></div>
<div style="text-align: left;">
1) In the courtroom, during a jury trial, the jury is the lie detector.</div>
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<br /></div>
<div style="text-align: center;">
<i>State v. Scott, 234 Wis.2d 129 (Ct. App. 2000)</i></div>
<div style="text-align: left;">
1) A trial is a search for the truth and as such impeachment helps the jury to evaluate credibility.</div>
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<br /></div>
<div style="text-align: center;">
<i>Sturdevant v. State, 49 Wis.2d 142 (1970)</i></div>
<div style="text-align: left;">
1) Mental impairment alone is insufficient to affect credibility.</div>
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STANDARD JURY INSTRUCTIONS </div>
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While case law gives us guiding principles, the "nuts and bolts" of what the fact finder looks for is best set forth in the standard jury instructions, criminal and civil. The fact finder should consider:</div>
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1) Whether the witnesses has an interest or lack of interest in the result of the trial.</div>
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2) The witness's conduct, appearance and demeanor on the witness stand.</div>
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3) The clearness or lack of clearness of the witness's recollections.</div>
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4) The opportunity the witness had to observe and know the matters the witness testifies about.</div>
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5) The reasonableness of the witness's testimony.</div>
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6) The apparent intelligence of the witness.</div>
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7) Bias or any if any is shown.</div>
<div style="text-align: left;">
8) Possible motives for falsifying testimony.</div>
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9) All other facts and circumstances during the trial that tend to support or discredit the testimony.</div>
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<br /></div>
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These nine factors can be summed in six words: common sense and experience in life.</div>
<div style="text-align: left;">
There is no magic involved.</div>
<div style="text-align: left;">
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<div style="text-align: center;">
CONCLUSION</div>
<div style="text-align: left;">
In the final analysis, the determination of the credibility of witnesses and the weight of the evidence is solely within the province of the fact finder be it the trial court or the jury. </div>
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John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com7tag:blogger.com,1999:blog-5077774759289052226.post-51851252358583368892012-07-10T15:14:00.000-05:002012-07-10T15:14:13.110-05:00Court Competency To Act in Probate & Children's Court Actions There are many statutes that set forth time lines that must be met in order for the court to have competency to act and jurisdiction to proceed.<br />
In Chapter 48, there are time lines for both CHIPS (Children in Need of Protection or Service) cases as well as TPR (Termination of Parental Rights) cases. If their time lines cannot be met, they can be extended for "good cause" under provisions set forth in 48.315. Furthermore the failure of a party to object to a period of delay or a continuance waives any challenge to the court's competency to act during that time period. <br />
In Chapter 51, there are time lines for Involuntary Commitment cases. While there are strict time lines for timely conducting hearings, there are provisions for some limited extensions of time as well as the ability to waive of some of the time lines.<br />
In Chapter 938, there are time lines for delinquency cases. Similar to the provisions in Chapter 48, time lines can be extended upon consent or for good cause as set forth in 938.315. <br />
In Chapter 54 Guardianship cases and in Chapter 55 Protective Placement cases there are time lines holding the final hearings. However, unlike the time line provisions in Chapter 48, 51 and 938, there are no provisions for good cause extensions in Chapter 54 and Chapter 55. If the time lines in Chapter 54 and 55 are not met, the court loses competency to act and the case must be dismissed. In this blog, I would like to look some of the statutory provisions at issue.<br />
<br />
CHIPS cases<br />
<br />
1) When a CHIPS case is filed, a plea hearing must be held within 10 days of the filing of the petition if the child is in secure detention and within 30 days if not in secure detention.<br />
2) If at the plea hearing, the petition will be contested, a fact finding hearing must be held within 20 days if the child is in secure detention and 30 days if not in secure detention.<br />
3) If grounds for a CHIPS order are found after a fact finding hearing, a dispositional hearing is to be held within 10 days if the child is within secure detention or within 30 days if not in secure detention. The parties can stipulate to proceed immediately to the dispositional hearing.<br />
4) These time lines can be extended by consent or for good cause. see 48.315.<br />
<br />
TPR cases<br />
<br />
1) When a TPR petition is filed, the court shall conduct an initial appearance within 30 days.<br />
2) A fact finding hearing -- Jury or court trial -- shall be held within 45 days of the initial appearance.<br />
3) If grounds are established, a dispositional hearing should proceed immediately although it can be adjourned for up to 45 days.<br />
4) These time lines can be extended by consent or for good cause. see 48.315.<br />
<br />
Involuntary Commitment cases<br />
<br />
1) When an Involuntary Commitment petition is filed, the court shall conduct a probable cause hearing within 72 hours of the time the subject was detained. This time period may be postponed for up to 7 days from the date of detention upon request of the subject or subject's attorney.<br />
2) If probable cause is found and the subject is in detention, the final hearing must be within 14 days of the date of detention provided no jury is demanded or within 14 days where a jury is demanded within 5 days from date of detention. A final hearing must be held within 14 days of .a jury demand if the demand was made more than 5 days from the date of detention.<br />
3) If probable cause is found but the subject is not in detention, the final hearing must be held within 30 days of the probable cause hearing.<br />
4) With respect to final hearings, the court loses competence to act after the expiration of time limits. Time constraints cannot be waived. However, reasonable extension of 14 day deadline may be allowed where the extension is caused solely by the conduct and manipulation of the detained subject. see <i>County of Milwaukee v. Edward S., 247 Wis.2d 87 (Ct. App. 2001).</i><br />
<br />
Protective Placement cases<br />
<br />
1) A final hearing on a Chapter 55 petition for protective placement of an incompetent person must be held within 60 days of the filing of the petition. Upon request, the court can grant one 45 day extension.<br />
2) Failure to conclude the hearing within the 60/105 day time line deprives the court of competency to act. see <i>State ex rel Sandra D. v. Getto, 175 Wis. 490 (Ct. App. 1993)</i><br />
3) There are no provisions for any extensions by consent or even for good cause.<br />
<br />
Guardianship cases<br />
<br />
1) A final hearing on a Chapter 54 petition for guardianship must be held within 60 days of the filing of the petition if the ward is in a nursing home or community based residential facility under 50.06.<br />
2) If the person is not in a nursing home or community based residential facility under 50.06, the final hearing must be held within 90 days of the filing of the petition.<br />
3) Failure to conclude the hearing within the 60/90 day time line deprives the court of competency to act.<br />
4) There are no provisions for any extensions by consent or even for good cause. see <i>In re: Guardianship/Protective Placement of Elizabeth L. (unpublished Court of Appeals case released on June 5, 2012)</i><br />
<i><br /></i><br />
Conclusion<br />
<br />
1) Competency is the court's power to exercise subject matter jurisdiction. However, competence is a narrower concept than subject matter jurisdiction. see <i>Amy Z. v. Jon T., 272 Wis.2d 662 (Ct. App. 2004).</i> 2) Generally, a challenge to a court's competency to act is waived if not raised in the trial court. see <i>Village Trempealeau v. Mikrut, 273 Wis.2d 76 (2004). </i>However, the waiver rule does not apply to noncompliance with statutory time limits absent a statutory provision for extension or good cause.<br />
3) It is incumbent on the practitioner in Chapter 48, 51, 54, 55 and 938 cases to be aware of the case law and statutory provisions governing time lines in these cases.John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0tag:blogger.com,1999:blog-5077774759289052226.post-65601462036698624622012-05-29T08:53:00.001-05:002012-05-29T08:53:15.062-05:00The Five-Sixth Verdict Rule When a civil case is tried to a jury the "5/6 verdict rule" applies. The rule is set forth in 805.09(2). It reads as follows:<br />
VERDICT: A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five sixths of the jurors must agree on all the questions.<br />
The rule makes it clear that the interrelationship between the questions on each claim is what is critical. There must be consistency in the answers to each question on a particular claim. The rule does not require that the same five-sixths of the jurors must agree on all the questions on the verdict. They must agree on all the questions <b>necessary</b> to arrive at a verdict on the claim at issue. An examination of case law gives us guidance in the application of the rule.<br />
Five-Sixths Rule -- Black Letter Law<br />
The black letter principles of the five-sixths rule were set forth by the Wisconsin Supreme Court in <i>Giese v. Montgomery Ward, Inc., 111 Wis.2d 392 (1983)</i>. The court indicated that the five-sixths rule does not require that the same ten jurors must agree on every question. Rather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim. see <i>Scipior v. Shea, 252 Wis. 185 (1948). </i> The review is done on a claim by claim basis rather than as a whole. see <i>Krueger v. Winters, 37 Wis.2d 204 (1967). </i>Dissents which are important to one claim may be immaterial to another claim. see <i>Scipior, supra. </i>The rule applies the same whether the assessment of the rule is as to the plaintiff or the defendant. see <i>Augustin v. Milwaukee Electric Railway & Transport Co., 259 Wis.625 (!951).</i> Where there are not the same 10 jurors agreeing on liability and damages there is a five sixths rule violation and a new trial as to damages is warranted. see <i>City of West Allis v. WEPCO, 248 Wis.2d 10 (Ct. App. 2001.</i><br />
<i> </i>Case Law Examples of How to Apply the Five-Sixths Rule<br />
In <i>Augustin</i>, the jury determined that the defendant was not negligent, with two dissenting jurors. The jury also determined that the plaintiff was not contributorily negligent with respect to three or four theories of liability presented, with two different jurors dissenting on one of the theories. On appeal the Court held that since ten of the jurors found no negligence by the defendant that defendant was entitled to a judgment of dismissal since that finding was dispositive as to the defendant.<br />
In <i>Will v. Chicago, Milwaukee & St. Paul Railway Co., 191 Wis. 247 (1926)</i>, the jury, with one dissenter, determined that the defendant was not negligent but also determined, with two dissenters, that the plaintiff was contributorily negligent. The trial court found a five-sixths rule violation and ordered a new trial. On appeal, the Court reversed the trial court holding that the absence of negligence on the part of the defendant was dispositive because it was a complete verdict for the defendant.<br />
In <i>Nommensen v. Amreican Continental Ins., 239 Wis.2d 129 (Ct. App. 2000)</i>, ten jurors (#1-10) found no negligence on the defendant on the negligence question. Two jurors (#11-12) dissented. On the cause question, ten jurors (#3-12) found no cause. Two jurors (#1-2) dissented. On appeal, the plaintiff contended that since the two jurors that dissented from the negligence finding were not the same two jurors who dissented from the finding of no causation that there was a violation of the five-sixths rule. The court of Appeals held that there was no violation because the jury's finding of no causation, standing alone, resolved the issue. Juror #11-12, in their dissent to the negligence question, found that there was negligence and in finding no cause together with eight other jurors who found no negligence met the five-sixths rule.<br />
Conclusion<br />
When applying the Five-Sixths Rule, it is of the utmost importance that the analysis of the integrity of the verdict look toward what is essential to complete the verdict with respect to the claim at issue.<br />
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<br />John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com2tag:blogger.com,1999:blog-5077774759289052226.post-89370915974168857692012-03-21T08:22:00.005-05:002012-03-21T13:48:26.536-05:00Injunction Law in Wisconsin - An Overview<div align="center">By John DiMotto</div><br /><div align="center"></div><br /><div align="left">Chapter 813 of the Wisconsin Statutes addresses Wisconsin's injunction law and sets forth the various types of injunctions which people may obtain an against others as well as the circumstances, procedures and standards that must be met in order to comply with due process of law. Today, I begin a series on injunction law in Wisconsin by looking at what an injunction is and the types of injunctions that are available.</div><br /><div align="center">What is an Injunction?</div><br /><div align="left">An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a petitioner directed at a respondent forbidding the respondent from doing some act which the respondent is threatening or attempting to commit or restraining a respondent in continuance thereof, such act being unjust, inequitable or injurious to the petitioner and not such as can be addressed by an action at law. Once issued a judge can modify or vacate the decree as events may shape the need. see <em>State v. Odell, 193 Wis.2d 333 (1995)</em>. </div><br /><div align="center">When can an Injunction be issued?</div><br /><div align="left">An injunction can only be issued after a respondent has been given notice of the petition. However, a respondent may be restrained via a temporary restraining order (TRO) until the decision whether to grant or refuse the injunction is made after a hearing on the petition for injunction. see <em>813.05(1) and 813.08.</em></div><br /><div align="left">An injunction can be justified only in extreme circumstances. Accordingly, a court may not grant an injunction (ie. domestic abuse) unless it finds reasonable grounds that the respondent engaged in or may engage in abusive conduct (ie. domestic abuse) of the petitioner. see <em>Laluzerne v. Stange, 200 Wis.2d 179 (Ct. App. 1996).</em> </div><br /><div align="center">What Types of Injunctions can be issued?</div><br /><div align="left">There are three types of injunctions that can be issued: Temporary Injunctions, General Injunctions and Statutory Specific Injunctions.</div><br /><div align="center">Temporary Injunctions</div><br /><div align="left">1) When it appears from a party's pleadings that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure a party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. see <em>813.02(1)(a).</em></div><br /><div align="left">2) Factors to be considered and which the petitioner must show are:</div><br /><div align="left">a) reasonable probability of success on the merits,</div><br /><div align="left">b) an inadequate remedy at law, and</div><br /><div align="left">c) irreparable harm.</div><br /><div align="left">3) The terms of the temporary injunction are within the trial court's discretion.</div><br /><div align="left">see <em>Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990). </em></div><br /><div align="left">4) Temporary injunctions at to be issued only when necessary to maintain the status quo.</div><br /><div align="left">see <em>School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).</em></div><br /><div align="center">General Injunctions</div><br /><div align="left">Injunctive relief ("general" injunction) may be sought and obtained when a litigant generally shows that the injunction is necessary to prevent irreparable harm. </div><br /><div align="left">1) The purpose of a "general" injunction is to prevent future violations. </div><br /><div align="left">2) Past injuries are, in themselves, no ground for a "general" injunction. A "general" injunction is only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits.</div><br /><div align="left">3) There must be no adequate legal remedy available.</div><br /><div align="left"><em>see Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002). </em></div><br /><div align="left">Injunctions are not to be issued lightly. The cause must be substantial. see <em>School District of Slinger, supra.</em></div><br /><div align="center">Statutory Specific Injunctions</div><br /><div align="left">There are four statutory specific injunctions that may be obtained:</div><br /><div align="left">1) Domestic Abuse Restraining Orders and Injunctions -- <em>813.12.</em></div><br /><div align="left">2) Child Abuse Restraining Orders and Injunctions -- <em>813.122.</em></div><br /><div align="left">3) Individual at Risk Restraining Orders and Injunctions -- <em>813.123.</em></div><br /><div align="left">4) Harassment Restraining Orders and Injunctions -- <em>813.125.</em></div><br /><div align="left">With respect to each of these injunctions: </div><br /><div align="left">1) A temporary restraining order may be requested and shall be granted if the petition is legally sufficient and sets forth "reasonable grounds to believe."</div><br /><div align="left">2) The petition must be served on the respondent prior to the hearing on the injunction.</div><br /><div align="left">3) The hearing on the petition shall be held within 14 days of the filing of the petition with one 14 days extension if service is not effectuated prior to the first hearing date.</div><br /><div align="left">4) At the hearing, the burden of proof is on the petitioner to establish "reasonable grounds to believe" the allegations in the petition. All parties have the right to submit evidence. The Rules of Evidence apply at the hearing.</div><br /><div align="left">5) If the court finds that the petitioner has met the burden of proof, the injunction shall be issued for the time sought by the petitioner as allowed by statute.</div><br /><div align="left">6) The court cannot issue "mutual" injunctions where there is no stipulation to do so. see <em>Laluzerne, supra.</em></div><br /><div align="center">Foreign Protection Orders -- 813.128</div><br /><div align="left">Injunctions obtained in another state or country -- Foreign Protection Orders -- are given full faith and credit in Wisconsin if they meet the requirements of 806.247(2). That is:</div><br /><div align="left">1) The foreign protection order was obtained only after the respondent subject of the order was provided with reasonable notice of the action and opportunity to be heard sufficient to protect the respondent's right to due process. If the foreign protection order is an ex parte injunction or order, the respondent shall have been given notice and the opportunity to be heard within a reasonable time after the order was issued sufficient to protect the respondent's right to due process. This means that the court in the foreign jurisdiction had personal jurisdiction over the respondent. If the foreign jurisdiction's rules regarding service must give the respondent reasonable notice and opportunity to be heard in order for </div><br /><div align="left">Wisconsin courts to give the foreign protection order full faith and credit. </div><br /><div align="left">2) The foreign court that issued the order had subject matter jurisdiction.</div><br /><div align="left">Full faith and credit will not be given to a foreign protection order: </div><br /><div align="left">1) That is issued against the person who filed a written pleading with a court for a protection order if no written pleading was filed seeking the foreign protection order against that person or</div><br /><div align="left">2) Where a cross or counter petition was filed but the court did not make a specific finding that each party was entitled to a foreign protection order.</div><br /><div align="center">Conclusion</div><br /><div align="left">Injunction are an equitable remedy that provide redress for individuals where there is no adequate remedy of law. They provide protection from harm.</div><br /><div align="left">In my next blog, I will begin looking at the statutory specific injunctions and the procedures and standards that must be met in order to obtain such injunctions.</div><br /><div align="left"></div><br /><div align="left"></div><br /><div align="left"></div>John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com5tag:blogger.com,1999:blog-5077774759289052226.post-17579116396492691002012-02-11T10:22:00.001-06:002012-02-11T10:23:55.069-06:00Bench and Bar Experiences to Return SoonBy John DiMotto<div><br /></div><div>I have not posted in quite some time due to an illness in my family. I expect to begin blogging again in the next couple of weeks.</div>John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com1tag:blogger.com,1999:blog-5077774759289052226.post-4957333111263310592011-12-01T06:58:00.003-06:002011-12-01T07:58:04.716-06:00Juror Conduct During the Trial<div align="center">By John J. DiMotto</div><br /><div align="left">When a jury is selected to try a case, the trial judge has the responsibility to ensure that the jury's verdict is based on three things, and three things alone:</div><br /><div align="left">1) The facts as found by the jury from all of the evidence submitted during the trial.</div><br /><div align="left">2) The law as given to the jury in the jury instructions.</div><br /><div align="left">3) The jurors use of their common sense and long experiences in life in evaluating the evidence.</div><br /><div align="left">Prior to "the age of the internet and cyberspace," judges would instruct the jury that for the duration of the trial they should not:</div><br /><div align="left">1) Talk to people about the case.</div><br /><div align="left">2) Listen to news reports about the case on radio or tv.</div><br /><div align="left">3) Read any articles about the case in the newspaper.</div><br /><div align="left">4) Read any books or articles in magazines pertaining to the case or issues in the case. (eg. I would instruct the jury not to go to the public library or call "ready reference" at the public library for any information.)</div><br /><div align="left">These admonitions were very simple and, I believe, effective. It was my experience that jurors understood they, not anyone else, were to make the decision in the case and that they decision they made was to be based on what they learned via the evidence introduced.</div><br /><div align="left">Things are much different today. The internet has opened up the world to everyone and access to information is without bounds. People want more information regarding matters touching every aspect of their lives and they are used to getting it on their own. People do not want limits placed on their ability to learn. If what people are told does not seem sufficient for their purposes they then seek out more information. People don't like to be told to NOT seek out information. As a result, it is incumbent upon a trial judge to not only place limits on what jurors can and cannot do, but to make sure the jurors understand why there is the necessity for limits.</div><br /><div align="left">Prior to the introduction of evidence in a jury trial, I read the jury a detailed instruction pertaining to their conduct during the trial. I tell them:</div><br /><div align="left"></div><br /><div align="left">CONDUCT DURING TRIAL</div><br /><div align="left"></div><br /><div align="left">"As far as your own conduct during the trial, I must caution you that you are not to discuss this case either among yourselves or with anyone else during the trial.</div><br /><div align="left">You must not permit any third person to discuss this case in your presence, and if anyone does so, despite your telling them not to, you should report that fact to me. I understand that it is a normal human tendency to want to converse with people with whom one comes into contact; however, please do not, during the time you serve on this jury, speak, whether in or out of the courtroom, with any of the parties or their lawyers or any witnesses. By this I mean not only do not speak about the case but also do not speak at all even to pass the time of day. In no other way can all the parties be assured of the absolute impartiality they are entitled to expect from you as jurors.</div><br /><div align="left">In fairness to the parties to this lawsuit, you should keep an open mind throughout the trial, reaching you conclusion only during your final deliberations after all the evidence is in and you have heard the attorneys' closing arguments and my instructions on the law. You will then be in a position to intelligently and fairly exchange your views with other jurors as you deliberate upon the verdict to be submitted to you.</div><br /><div align="left">Since you will be deciding this case solely on the evidence received along with my instructions on the law, you must not make any independent investigation of the facts or the law.</div><br /><div align="left">Do not research any information that you personally think might be helpful to you in understanding the issues presented.</div><br /><div align="left">Do not investigate this case on your own in any manner, shape or form.</div><br /><div align="left">Do not read any newspaper reports or listen to any news reports on radio, television or on the internet.</div><br /><div align="left">Do not visit any locations discussed in the evidence in person or via the internet.</div><br /><div align="left">Do not conduct experiments.</div><br /><div align="left">Do not consult dictionaries, computers, websites or other reference materials for additional information.</div><br /><div align="left">Do not seek information regarding the public records of any party, witness or lawyer in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it.</div><br /><div align="left">Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury.</div><br /><div align="left">Do not use a computer, cell phone or other electronic device with communication capabilities to share any information about this case. For example, do not communicate by blog, email, text message, on twitter, facebook or other social network.</div><br /><div align="left">Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household or friends, but you may not do so. This case must be decided by you, the jurors, based on the evidence presented in the courtroom. people not serving on this jury have not heard the evidence, and ti is improper for them to influence your deliberations and decision in this case. After the trial is completed, you are free to communicate with anyone in any manner.</div><br /><div align="left">These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason t believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it would result in a new trial involving additional time and great expense. Furthermore, any juror who violates these rules may be found in contempt of court and may be responsible to pay the costs of the trial, may be subject to a fine and may even be subject to incarceration."</div><br /><div align="left">Yes, this is very detailed (some might even say "wordy") but I believe necessary to impress upon the jurors the awesome responsibility we have entrusted to them.</div><br /><div align="left">However, this is not the end of my admonition. Each and every time we take a recess and at the end of every day, I re-admonish the jury as follows:</div><br /><div align="left">ADMONITION TO JURY</div><br /><div align="left">"Do not discuss this case among yourselves or anyone else. It is premature to do so until this case is given to you for your final consideration during deliberations in the final phase of this trial.</div><br /><div align="left">This means you may not talk to anyone about the case face to face, by phone, by email, by text message or via any social network such as twitter, facebook, etc.</div><br /><div align="left">If you leave the jury room during the break, avoid contact with the lawyers, parties and witnesses and they know that they should avoid contact with you.</div><br /><div align="left">As I told you during voir dire and in my preliminary instructions, it is of the utmost importance that you not do any research or seek any information regarding issues in this case, any of the lawyers, parties or any of the witnesses. This means do not read any books or periodicals for any information. Definitely do not go on the internet for any information.</div><br /><div align="left">Do not do anything outside this courtroom in an attempt to assist you in performing your jury service. It will not assist you. Everything you need to do your job as jurors is being provided to you within the four walls of this courtroom. You will see and hear all of the evidence, here. You will be instructed on the principles of law that apply to the issues in this case, here. And, of course, you bring your common sense and long experiences in life with you, here.</div><br /><div align="left">If you do anything outside the courtroom, you will negatively impact the integrity of any verdict that you return and it will result in the necessity for a new trial in front of a different in the future at great expense to the public, and no on wants that to happen."</div><br /><div align="left">CONCLUSION</div><br /><div align="left">It is the responsibility of the trial judge to ensure that the integrity of a jury's verdict is beyond question or reproach. If the trial judge fully explains to the jury what their role is, what they can do, and, most importantly, what they cannot do, justice is served.</div><br /><div align="left"></div><br /><div align="left"></div>John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com1tag:blogger.com,1999:blog-5077774759289052226.post-21312058874501561312011-10-08T07:54:00.002-05:002011-10-08T08:00:26.428-05:00Bench and Bar Experiences to Return Soon<div style="text-align: center;">By John DiMotto</div><div style="text-align: center;"><br /></div><div style="text-align: left;">I have not posted to my blog in the last few weeks because my wife was recently diagnosed with cancer and life has been a bit hectic for your family. She is undergoing chemotherapy treatments with a surgery to follow. She is doing well. The doctors have given her a very good prognosis - a cure prognosis based on medical indications- and we hope and pray that it will come to pass. </div><div style="text-align: left;"><br /></div><div style="text-align: left;">My wife is blogging about her experiences in her cancer battle. It is very thoughtful and reflective. You might want to check it out to get a first hand feel for what it is like. Her blog is called "Cancer Light". You can access it at: http://cancerlight.blogspot.com.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">I hope to be back in full swing in the near future.</div>John DiMottohttp://www.blogger.com/profile/15521940768659333581noreply@blogger.com0