Taking the Weekend Off

There will be no posts this weekend. It is time to relax. Next blog will be on February 1st.

Motions in Limine in Civil Cases

By John DiMotto

The most difficult pretrial motion that a civil judge must address is the motion in limine. This is a motion that is brought by lawyers to either limit, or preclude, the admissibility of certain evidence or to obtain a ruling that certain evidence, or a line of evidence, will be admissible.

Most judges would prefer to spend time prior to the commencement of the trial resolving admissibility issues in order to streamline the trial and not cause delays during the trial. We are very cognizant of how jury service is a big imposition on the lives of our citizens. They are taken away from their jobs, often without compensation by their employers. They are taken away from their families. Their ability to access news outlets is often restricted so jurors are not exposed to extraneous information that will jeopardize the integrity of their verdict. I judges can resolve evidentiary decision before the trial begins, the lawyers can better prepare their case and present it more efficiently.

Issues addressed via a motion in limine are varied.

In a personal injury automobile accident, a lawyer may seek an order of the court that evidence that a party received a ticket should not be admissible. Ordinarily, this motion is granted because the issuance of the ticket is an officer's opinion as to fault. Usually the officer makes his/her decision based on what he/she is told and not what the officer saw. It invades the province of the jury. The jury will hear from the witnesses to the accident and they will decide fault.

In a case involving expert testimony, a lawyer may seek an order of the court barring an expert from testifying. It may be based on lack of qualifications of the witness or perhaps the subject matter of the testimony is irrelevant or will not assist the jury or perhaps the topic is such that it is not scientifically recognized (polygraph testimony).

If a party or witness has a criminal record, before any questions are asked about convictions - this testimony may be admissible since it bears upon credibility - there must be a hearing outside the presence of the jury in which the judge rules on whether any questions about convictions may be asked.

While hearings on motions in limine can be time consuming, it is better to take the time before the trial rather than spend it during the trial. Having to deal with motions in limine during the trial is like watching a television show where you are stuck watching the commercials. It is frustrating and interrupts the story line.

In my next post, I will address motions after verdict in civil cases.

Judicial Preparation for Motions in Civil Cases

By John DiMotto

In my last post, I discussed how a judge prepares for and approaches a scheduling conference in a civil case. It is the first time the judge addresses the case with the lawyers. Usually, the next time the case is before the court is when various pretrial motions need to be resolved.

There are many different types of motions that will come before the court during the discovery phase of the case. These include a motion to dismiss, motion to compel discovery, motion for summary judgment, motion for judgment on the pleadings, motion for sanctions, motions after verdict, etc. In this post I will discuss some of the pretrial motions leading up to the trial itself.

A motion to dismiss is usually brought by the defense when they believe that the plaintiff's complaint fails to set forth a claim for relief, that is, does not set forth facts which support a cause of action. For example, if a Minnesota Vikings fan filed a lawsuit against Bret Favre for throwing an interception at the end of the NFC Championship game, Favre's lawyers would undoubtedly file a motion to dismiss because the law does not allow such a lawsuit. (Some might say it should but it does not.)

A motion to compel discovery is usually brought when a party believes that another party has failed to comply with Wisconsin's discovery statutes. The purpose of discovery statutes is to give every party the opportunity to discover what the case is all about. Discovery can be had via, written interrogatories (asking a party to answer a series of questions about the case); request for production of documents, requests to admit that certain facts are true, requests to test evidence and depositions (taking testimony from parties or witnesses about what they know about the case) just to name a few of the mechanisms for discovery. If a party refuses or neglects to provide information which is discoverable, relief can be sought from the judge. If the judge grants the motion, not only is the party entitled to obtain the discovery information but the prevailing party is entitled to be "compensated" by the defaulting party. This is in the form of a sanction. Usually, it is money but can be by the court putting restrictions on the defaulting party's evidence.

A motion for summary judgment is brought when a party believes that even if the evidence of the opposing side is true that the opposing party can not prevail and the moving party is entitled to judgment as a matter of law. An example would be in a case where insurance coverage is in issue. If the policy clearly stated that it did not provide coverage if A, B and C were present, and if A, B and C were, in fact, present - and there was dispute in this regard, a motion for summary judgment can be brought because there is not triable issue of fact. A party is not entitled to a trial if the facts are not in dispute.

A motion for judgment on the pleadings is brought when a party contends that a pleading by an opposing party does not "join issue." When a plaintiff files a lawsuit, he/she does so via a complaint. The defendant in the lawsuit must file an answer to the complaint. In essence, it must contain a denial of the allegations in the complaint or set forth affirmative defenses. If it gives an explanation but does not raise a defense or contain a denial, the plaintiff may bring a motion for judgment based on the fact that the facts in the complaint are not controverted. In such a case, the judge would undoubtedly grant the motion.

These are just a few examples of motions that can be brought to narrow the focus of the case so the trial will be streamlined.

In my next post, I will address one more motion which is much more substantive and which addresses the admissibility of evidence for the trial itself - the motion in limine.

Judicial Preparation for the Scheduling Conference in Civil Cases

By John DiMotto

When most people think about the work of a judge, they immediately picture a grey haired man wearing a black robe sitting on the bench acting snarly to everyone in sight. Nothing is further from the truth.

First, we are not all men.

Second, we are not all grey haired.

Third, generally speaking, we are not snarly to everyone in sight (just to some, sometimes).

Fourth, only part of what we do is done from the bench.

Much of our time is spent preparing for what we do on the bench. Just like students who must prepare for class, judges prepare for court. When we were elected, or appointed as the case may be, we did not become endowed with all knowledge. The law is like life - it has a high learning curve - and judges must work hard and prepare for each case in order to be ahead of the curve.

Every case is different and poses different issues and problems depending on the nature of the hearing. In civil cases, we start out with a scheduling conference, followed by motion hearings, followed by a final pretrial, followed by a motion in limine hearing to resolve loose evidentiary ends, followed by a court trial or jury trial, followed by motions after verdict Today, I would briefly like to discuss the scheduling conference.

The Scheduling Conference: Some might say this is a "nothing hearing" and there is no need to do any preparation - just sit down with the lawyers and put an order in place that will govern the course the case takes. I totally disagree. I believe that preparation for the scheduling conference is important. The involvement of the judge in the scheduling conference sets the tone for the case. When the lawyers sit down with me in chambers, I go over the facts of the case in detail and ask questions of the lawyers to clarify what the true issues are that must be addressed during the pendency of the action. This lets the lawyers know that I have taken the time to study and learn the case and that I expect them to be so invested in the case as well. As the judge goes, so goes the case. Having an understanding of the issues, and the lawyers (always an important consideration), I am able to put a scheduling order in place. This is an order that tells the lawyers what they must do and the time frame to do it in so the case will be properly prepared before it is set for trial. If the judge is fully prepared for the scheduling conference, it lets the lawyers know that the judge takes their case seriously and expects them to do the same. It raises the "professionalism" bar for both the bench and the bar.

In the final analysis, good preparation for the scheduling conference sets a positive tone for the ultimate resolution of the case in a manner that is fair to all involved.

In my next post, I will address the issue of motions and motion practice in the civil courts.

Judge's Responsibility to Encourage Juror Civility

By John DiMotto

There is a lot of talk about the need for civility among lawyers, particularly in the courtroom during proceedings.

There is a lot of talk about the need for judges to promote decorum in the courtroom and to dignify the legal process.

There is a lot of talk about the fact that judges need to remember that they have an ethical obligation to not only maintain decorum in the courtroom but to contribute to it via their own civility.

What there is not a lot of talk about, but should be, juror civility during deliberations.

During jury selection and in our jury instructions, we tell jurors about some of the things that we expect from them. We tell them not to discuss the case among themselves before deliberation. We tell them not to discuss the case with anyone. We tell them not to do independent research via the internet, etc. There is one other thing that we should tell them, but don't often emphasize is that they need to be respectful of each other and each other's opinions during deliberations

This is not to say that jurors should give up their positions just because someone disagrees with them. However, jurors need to listen to what other jurors are saying and intelligently address what is being said. Jury deliberations should not be a free for all. They should not emulate a WWE "Raw" television show. They should not be like the rantings and ravings seen and heard on numerous evening cable network shows on CNN, MSNBC, FOX, etc. Jurors should respectfully share their views and should not be obnoxious, abrasive or insulting to one another, It is the responsibility of the judge to convey this information to the jury early on, and often, during trial.

Everyone in the courtroom in every proceeding must be civil. This can be accomplished if the judge, who is in charge of the proceedings, sets the example and sets a high bar with respect to civility and decorum.

Substitution of Judge

By John DiMotto

In my last post, I discussed the procedure to remove a judge via recusal. Removal via recusal is dependent on the existence of a statutory impediment (757.19) or a statement by the individual judge that he/she does not believe he/she should be the adjudicator for the case for reasons certain. However, in Wisconsin every party has the right, for any reason or no reason, to have a judge assigned to the case removed via substitution.

In every type of case, a party may, if done in a timely manner, file a motion to substitute for a new judge. The right to substitute exists in every type of case and there are statutes which provide for the specific procedure.

48.29 - Children in Need of Protection or Services (CHIPS) case and Termination of Parental Rights (TPR) cases.

938.29 - Juvenile Delinquency cases.

971.20 - Criminal cases.

801.58 - Civil, Probate and Family cases.

I believe the theory behind Wisconsin's Substitution of Judge law is to give litigants one opportunity to have a judge removed from the case if the litigant just does not want the judge regardless of whether they have a good reason or not.

Most states require a litigant to file an Affidavit of Prejudice if a litigant wants a judge removed from the case. In other words, the litigant must have a good reason that the judge cannot be fair. However, the judge has the right to respond to the allegation and has the final word.

The Wisconsin Substitution Rule has been the subject of widespread criticism by people who think the rule allows judge shopping. However, efforts to repeal the law have been unsuccessful. In essence, the Wisconsin legislature has decided that litigants may seek one substitution if the litigant follows the statutory procedures for substitution.

In my experience, the use of a motion to substitute is usually based on a litigant's perception, rightly or wrongly, that a judge is too tough. Some judges are the subject to many, many substitutions and others almost none.

In the final analysis, litigants have something to say, in the first instance, as to who the judge will be on their case.

Judicial Recusals

By John DiMotto

In Wisconsin, as in all states, there are a number of circumstances when a judge must recuse himself/herself from handling a case. The issues of recusal, or disqualification of a judge, is addressed in Wisconsin Statute section 757.19.

There are 7 distinct instances that require a judge to recuse himself/herself from a case:

1) When the judge is related to any party, counsel or their spouses.

2) When a judge is a party or material witness.

3) When a judge has previously acted as counsel to any party in the same action.

4) When a judge prepared as counsel any legal document whose validity or construction is in issue.

5) When an appellate judge previously handled the case while a judge in an inferior court.

6) When a judge has a significant financial or personal interest in the outcome of the case.

7) When a judge determines that, for any reason, he/she cannot, or it appears he/she cannot act in an impartial manner.

Any disqualification that may occur under the above seven factors may be waived by the agreement of all parties and the judge after full disclosure on the record.

Of the seven factors, the seventh one is the most nebulous and a self-disqualification decision is subjective. Under the seventh one, disqualification is not required when a person other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner.

Practically speaking, if a judge does not believe he/she can be fair, it must be disclosed and the judge should recuse himself/herself.

The issue of recusal has been in the forefront of the news in Wisconsin of late. In fact the Wisconsin Supreme Court this past week set forth a rule involving recusal and campaign contributions. It was hotly debated and the rule that passed did so 4-3. Many people, including some judges, believe that the rule that was enacted will weaken and even jeopardize the independence of the judiciary. Some people believe it sends a message that judges are "for sale" in Wisconsin. The Wisconsin rule comes the same day as the United States Supreme Court ruling in the Citizen's United case which decimated the McCain - Feingold Campaign Contribution law which sought to put some order and limits on campaign contributions in elections in general.

The issue of when a judge should recuse himself/herself revolves around what is fair.