State Bar of Wisconsin

President's Perspective – Computers for Africa

By Margadette Demet

In early March I had the privilege of traveling to Uganda with one of the founders of Computers for Africa (CFA) and several other individuals of diverse backgrounds to visit the schools and other beneficiaries of CFA. Ruth and Tim Leacock are the founders of Computers for Africa, an interesting and amazingly successful program. With the assistance of a league of volunteers, the couple brings quality used hardware and Internet connection to African schools. Computers are donated by businesses in the Omaha, Nebraska area; volunteers renovate these computers into complete labs, and the complete computer labs are then shipped to African schools. Beneficiaries pay $65 per computer, thus, the African schools have a stake in the computers. The $65 per computer fee covers the international shipping charges and about 25 percent of follow-up services. CFA’s four-step program is supervised by In-country Director Herbert Busiku. He qualifies beneficiaries, helps set up the labs, trains the computer teachers in PC maintenance and repair, and assists communities with Internet connection.

Internet Connection. Mr. Busiku, a native of Uganda, maintains the local office in Kampala. Two weeks prior to our visiting, he was helping 16 CFA schools establish an Internet connection that will bring email and research capability to isolated schools that possess few books or other educational resources. Relative to the United States, the Internet connection is slow. This situation, however, will soon improve dramatically in July 2009, when one of three projects to deliver fiber-optic cable carrying Internet to Uganda is completed. Bandwidth will then increase eight-fold for the same amount of money. Intermittent power is still a challenge; but electrical stability has greatly improved since CFA incorporated in 2002. To date, the non-profit organization has delivered computer labs to 177 schools in East Africa; 54 of the schools are in northern Uganda.

Northern Uganda. CFA is currently working in northern Uganda – really a country within a country. Up until recently, the northern region was isolated from the rest of the nation. It was brutalized by a war that sent almost 2 million people into Internally Displaced Persons (IDP) camps and kept them there for 22 years. Most of the students served by the CFA program are young people whose lives have been profoundly impacted by war, separation from their families, and orphan hood. For many of these young people education is delayed. Thousands are returning child soldiers who were kidnapped by the rebels and forced into service. In the case of the girls, in addition to soldiering, they were forced to act as sex slaves to their captors. Over 50 percent of the northern population suffers from Post Traumatic Stress Syndrome, one of the highest rates in the world.

As a new and fragile peace takes hold, IDP camps are slowly closing in the northern portion of the country. Efforts are being made to equip people with basic survival items such as seeds, hoes, iron sheets for roof material, so that they can be gradually sent back to their villages. The dependency mentality, which developed from years of life in the camps, is hard to overcome. Many are afraid to return home, or they feel that they will not be welcomed back. Most have lost their dwellings, their livestock, and all of their possessions and (without government and international aid) would have no provisions to start over. The World Food Bank is in the process of gradually terminating service to the camps in order to force the people to transition to village life. The largest camp we visited, Pabbo IDP Camp, still contains 30,000 people, 15,000 of whom are children under the age of 15. A year ago, this camp had a population of more than 60,000, so the transition to village life is progressing.

Everywhere one goes, there are the children of children. School personnel are not only trying to heal and educate their students, but also to lay the groundwork for a better life for the offspring of students. During the war, streams of children walked for miles each day to sleep on hospital, seminary, and school grounds where there was safety from the marauding guerillas. Come morning, these “Invisible Children” walked back to their villages. Over two decades of war, approximately 25,000 children were abducted by guerillas who were particularly interested in boys between the ages of 10 and 14. These young boys could be more easily terrorized into killing their friends, families, and neighbors, ensuring that they could never return home.

Signs of Hope and Healing. The northern Uganda infrastructure suffered severe damage during the war. Nonetheless, the major arteries for transport have been repaved and commerce to Sudan is now booming. Huge lorries regularly travel north and south with goods to trade. Where once darkness brought only a fearful silence, people now move about freely, conducting business all through the night. Village schools are being rebuilt. Fifty non-governmental organizations (NGOs) in the north are assisting with a myriad of issues from healthcare to education.

One of those NGOs, Mildmay AIDS Center, has a hospital in Kampala that dates back to 1860. We visited this British organization, which contracted with the Ugandan government to manage the hospital and to provide satellite clinics all over the country, including in northern Uganda, which has the highest HIV/Aids rate in the country. Efforts are under way to treat children at the earliest possible time and to encourage adult victims to get help before the disease progresses too far. Progress is slow. We also visited a general hospital in the Lira area. As is the African custom, the families of patients come to the hospital daily to feed loved ones and help with care not provided by the hospital.

The churches of the world contribute heavily toward the reconstruction of northern Uganda. Forty-one per cent of the Ugandan population is Catholic; thirty-five percent Anglican, twelve percent Muslim, and the rest of the population profess a variety of other religions. Every faith tradition works to help the people achieve a better life – and their efforts are appreciated by a people who refuse to give up, no matter the adversities they face.

Welcomed with Open Arms. Wherever we went, we were welcomed with open arms and were invited to share the small resources of the community. Students and faculty joyfully entertained us with music and dances, showered us with gifts, and opened their hearts to us. Though the facilities in many places were shockingly inadequate, the people were proud of what they had and accepted the inconveniences of life without complaint.

I found the trip inspiring and hopeful, in spite of all the difficulties. The attitude of the people and the enthusiasm of the volunteers are impressive. Africa is a land rich in resources and rich in the basic goodness of its people. Despite all of the destruction, the culture has not been destroyed. Hopefully, in the coming years Africa will, with help from the international community, be restored to its amazingly blessed and capable self.

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Attorney Jack R. DeWitt Receives 2009 Leonard L. Loeb Award

On Wednesday, May 6, 2009, at the Members’ Recognition Luncheon held during the State Bar Annual Convention, Margadette Demet, president of the Senior Lawyers Division (SLD), will formally present the division’s Leonard L. Loeb award to Attorney Jack R. DeWitt. The Loeb Award recognizes a lawyer who has improved the legal system and shown leadership in advancing the quality of justice for all.

Attorney Jack R. DeWitt is a senior civil litigator and a founder of the former DeWitt Porter law firm, which merged with Ross & Stevens in 1994 to become DeWitt Ross & Stevens.

In his letter of nomination, retired Wisconsin Supreme Court Justice William G. Callow, said, “There are many excellent attorneys in Wisconsin but there are very few great attorneys. Jack DeWitt is not only a great attorney, he is a great citizen.

“Jack’s community service cannot be matched by many Wisconsin citizens,” says Callow. “The reorganization of the Wisconsin court system was drafted by the supreme court while I was a member, and I know first-hand the importance of Jack’s leadership in accomplishing that milestone in that branch of the government.”

“I have had the privilege of knowing and working with Jack since I was a law clerk at the University of Wisconsin in 1990,” said DeWitt Ross & Stevens Managing Partner Stephen A. DiTullio. “Despite my ‘lowly’ status as a first-year law clerk, Jack took time out of his schedule during my first week at DeWitt Ross & Stevens to personally mentor me. Jack sets an outstanding example for younger attorneys starting out their careers.

“Jack has always been committed to helping and serving the legal community,” says DiTullio. “His work with the State Bar has resulted in improvement in our legal system. From his highly decorated military service to his involvement in community organizations and politics, our community, state, and nation, are the better for Jack’s contributions.”

Another long-time friend and colleague, Jon P. Axelrod said, “Jack became my mentor and imparted to me the values of our profession which I cherish. Throughout his legal career, Jack has set the standard as an outstanding civil litigator and legal scholar and extraordinary legal ethicist.”

In his nomination letter, the Hon. Gerald Nichol noted that as a senior partner DeWitt always reached out to help young lawyers. He also noted that more than 20 years ago DeWitt was one of the founders of the Dane County Bar Mediation program, “the first of its type in our state and for that matter in the country. We trained lawyers in mediation techniques and on a pro bono basis, they volunteered to help mediate cases. This was cutting edge in the civil practice at this time and it took patience and diplomacy to sell the bar and the bench to use this service. Looking back, what an impact the program has made, and Jack played a key role. Jack has sown much more than he has reaped and we are all richer because of his commitment and dedication to the profession.”

“From private practice to serving as Dane County District Attorney, to teaching with the University of Wisconsin Law School and Business School, Jack DeWitt has distinguished himself as one of the most respected leaders in our profession,” says Dane County Bar President Teresa Kobelt, “He has donated countless hours to the furtherance of the legal profession in the Madison area and throughout the state with his various community activities and volunteer work.”

A prominent civil litigator, DeWitt authored the interpretive commentaries in West’s Wisconsin Statutes Annotated and co-authored West’s Wisconsin Practice Methods. During his decades in practice, he has served as president and chair of the State Bar Board of Governors, president of the Dane County Bar Association; and trustee of the National conference of Bar Foundations. He is the recipient of the Charles L. Goldberg Award of the Wisconsin Law Foundation and the U.W. Law School Alumni Association Distinguished Service Award.

DeWitt has served as acting district attorney for Dane County, chair of the Advisory Committee of the State Department of Veterans Affairs, member of the Dane County Veterans Commission, and chair of the City of Madison Municipal Development Committee.

A WWII infantry officer who won the Distinguished Service Cross, British Military Cross, Silver Star, and Purple Heart, DeWitt retired as Brigadier General. He received his LLB in 1942 and B.A. in 1940 from the University of Wisconsin where he was a full-time member of the law faculty for four years.

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Leaving the Senior Lawyers Division Board

SLD Past President Don Heaney and Secretary Larry Phillips complete their terms of service on June 30, 2009. The division salutes these dedicated senior lawyers for their outstanding service on behalf of the division and the legal profession. Thank you.

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Ruminations on Senior Lawyers Division Involvement

By Larry Phillips, Secretary

My Senior Lawyers Division (SLD) Board service began four years ago, when I called Pat Kelly, who was then the State Bar staff liaison to the Senior Lawyers Division. The subject of the call was how to run for election to the Board. I asked when the election would take place. Kelly promptly replied, “You are now on the Board.” That response should have set off a major alarm, but the appointment turned out to an interesting and rewarding experience. Nonetheless, after serving two terms, the time has come to retire from the Senior Lawyers Division and to turn the opportunity over to a new member.

I soon will be replaced by Milwaukee attorney Hugh Braun of the firm Godfrey Braun and Frazier. Hugh is a graduate of Notre Dame University and the University of Michigan Law School. He has served on a number of charitable boards and written articles for the Wisconsin Lawyer™ magazine. His practice focuses on property condemnation. Hugh was a JAG in the U.S. Air Force, and he retired as a Colonel commanding a Selective Service Reserve unit.

The theme of the Senior Lawyers Division could be “Still Serving.” The Division recognizes lawyers who have given much of their time to the public and the Bar. Many members of the SLD know firsthand the difficulty of retiring from a small law firm practice, and it conducts seminars on making that transition as easy as possible. Another state bar calls such a program “Estate Planning for Death of a Law Practice.” Another recent SLD focus was on bringing the mature lawyer up-to-date on the use of computers in the practice of law, a topic that simply did not exist in our law school days.

It has been a pleasure serving on the SLD board and associating with top members of the profession. I am pleased that Hugh has agreed to be my replacement. His leadership and experience will be an asset to the Board.

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Senior Lawyers Division 2009 Slate of Officers

The following members will begin serving their terms on July 1, 2009.

Officers

President-elect: Joseph A. Melli, Melli Law SC, will serve a one-year term.

Secretary: Hugh R. Braun, Godfrey, Braun & Frazier LLP, will serve a two-year term.

Treasurer: Thomas G. Ragatz, Foley & Lardner LLP, will serve a two-year term.

Three directors: Don R. Herrling, Herrling Clark Law Firm Ltd., Maryann Scheftell Schacht, Schacht & Schacht, and Thomas J. Drought, Cook & Franke SC, will each serve two-year terms.

Fred Hollenbeck, Curran, Hollenbeck & Orton, S.C., was appointed to the position of director to fill a vacancy. His term will expire on June 30, 2010.

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What's Going On at the State Bar Convention May 6-8

There are many Annual Convention activities of interest to Senior Lawyers Division members. Here are the highlights:

Wednesday, May 6, 2009
11:30 a.m. Members’ Recognition Luncheon
        Senior Lawyers Division Leonard Loeb Award presented to Jack DeWitt.
Come and celebrate with your colleagues. Admission is $35 per person. Admission is not included in any convention packages. Only a small number of tickets will be available for purchase at the luncheon.

4:30 p.m. Opening Reception
        Take advantage of this event to get to know our variety of exhibitors, mingle in the exhibit area, and enjoy complimentary hors d’oeuvres, beer, wine, and soda. No admission ticket required.

6:00 p.m. Senior Lawyers Division Reception
        Join old friends and make new acquaintances at our Senior Lawyers Division reception. Attorneys and judges 60 years and older are cordially invited to attend. We look forward to meeting you, and we guarantee you will have fun!

Thursday, May 7, 2009
1:00 p.m. Professionalism Committee / Senior Lawyers Division Convention CLE Program
1:00 p.m. Elected Judges vs. Appointed – The Pros and The Cons
        Moderator: Chief Justice Shirley S. Abrahamson, Wisconsin Supreme Court, Madison
        Mr. William K. Johnston, Wisconsin State Journal, Madison
        Mr. David Newby, Wisconsin State AFL-CIO, Milwaukee

1:50 p.m. Judicial Recusal Standards—Should They Be More Rigorous?
        Moderator: Robert W. Swain, Attorney at Law
        Atty. Charles G. Geyh, University of Indiana Law School, John F Kimberling Professor of Law, Bloomington, Indiana
        Atty. James Sample, Brennan Center for Justice, New York University School of Law, New York, New York

2:55 p.m. McConnell v. FEC, 540 U. S. 93 (2003) and the Regulation of Third Party Ads in Judicial Elections 
        Moderator: Atty. Kevin Kennedy, Wisconsin Accountability Board-Campaign Finance & Election
        Michael McCabe, Wisconsin Democracy Campaign, Madison
        Mr. David Newby, Wisconsin State AFL-CIO, Milwaukee
        Atty. James Sample, Brennan Center for Justice, New York University School of Law, New York
        Atty. Brady C. Williamson, Jr., Godfrey & Kahn SC, Madison

3:45 p.m. What Constitutes Appropriate Judicial Campaigning?
        Moderator: Chief Justice Shirley S. Abrahamson, Wisconsin Supreme Court, Madison
        Atty. Charles G. Geyh, University of Indiana Law School, John F. Kimberling Professor of Law, Bloomington, Indiana
        Mr. William K. Johnston, Wisconsin State Journal, Madison
        Atty. Kevin Kennedy, Wisconsin Government Accountability Board-Campaign Finance & Election
        Michael McCabe, Wisconsin Democracy Campaign, Madison
        Mr. David Newby, Wisconsin State AFL-CIO, Milwaukee
        Atty. James Sample, Brennan Center for Justice, New York University School of Law, New York, New York
        Atty. Brady C. Williamson, Jr., Godfrey & Kahn SC, Madison

5:00 p.m. Presidential Swearing-in Ceremony
        President-elect Douglas W. Kammer of Portage will be sworn in as the 54th president of the State Bar of Wisconsin. Admission to the ceremony is included in your convention registration.

5:45 p.m. Presidential Swearing-In Reception
        You are invited to attend the President’s Swearing-In Reception honoring Douglas W. Kammer. Enjoy complimentary hors d’oeuvres, beer, wine, and soda. Admission to the reception is included in your convention registration

To register, or for more information about convention.

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The Potential Power of an "Individualized" Durable Power of Attorney

By Iris M. Christenson

The Durable Power of Attorney (DPOA) deserves more attention and perhaps should be elevated to the same level of importance we reserve for a person’s will or trust. This “minor” document can have a major impact, since it might be the sole means of protecting your assets from long-term care costs. If the document is tailored to your unique situation and conforms to the changes in the Medicaid regulations, your estate planning goals can be achieved, even if you lack capacity to handle your financial affairs.

It’s common to think of the DPOA as a means to name a trusted relative or friend to act as your agent in a few very basic financial matters, either temporarily or permanently. The agent is expected to handle tasks such as bill paying, depositing checks, transferring funds from one account to another, and perhaps, signing documents during a real estate transaction. The statutory DPOA form, found at §243.10, Wis. Stats., and other standard forms found online that meet the requirements of this same statute are adequate to accomplish this limited purpose. Understandably, the drafters of standard forms are concerned that powers such as the power to gift or change beneficiaries could become a license to steal (engage in self dealing), if a vulnerable adult appoints an unscrupulous agent. Those powers are specifically denied to an agent using these standard forms, because such forms are often signed without the assistance of legal counsel.

Before you decide to use the standard form, consider retaining counsel to draft a DPOA that gives your agent the authority to “fix” many problems that may occur if you require expensive long-term care. In the hands of the right person, a trustworthy friend or relative, or a reputable corporate entity, a well-drafted DPOA that contains clear directives can be an extremely effective life planning tool. The following three (3) examples illustrate the usefulness of a well-drafted DPOA. Of course, this short list of examples is not meant to be a complete list of all of the provisions that could be included to protect your property and carry out your estate planning objectives.

1. The power to gift (with limitations). The power to gift with limitations as to the recipient, the size of the gift, the timing of the gift, and the purpose of the gift, can be a very useful tool to transfer assets to the trustee of a Special Needs Trust for a disabled relative, continue a pattern of gifting and even carry out a plan to transfer assets before applying for government benefits. The power to gift can be effectively tied to other estate planning documents in several ways. The recipients can be limited to the beneficiaries named in your Will (or Revocable Trust). The size of the gift can be limited to a specific amount or a proportionate share that matches the share the person would have received as an inheritance. The power to gift can even grant your agent the power to transfer assets to a Special Needs Trust. The Special Needs Trust may be described in your Will or it may have been established as a separate document. Your agent could be given the power to declare the Special Needs Trust irrevocable, if it had not yet been funded. Transfers to a Special Needs Trust could be a method of “spending down” that meets the principal’s objectives and avoids divestment penalties.

2. The power to enter into a Caregiver Contract. The ability to enter into a Caregiver Contract has become necessary since the implementation of the Deficit Reduction Act of 2005 (DRA 2005) in Wisconsin on January 1, 2009. Transfers to caregiver relatives, even small transfers, will be evaluated carefully to determine if such transfers are merely disguised gifts. The best and perhaps only method of assuring that such transfers will not be considered gifts and cause a lengthy penalty period (a period of ineligibility) is to use a Caregiver Contract. An agent with this power could assure that caregiver relatives are paid for the many hours of services they provide. If the caregiver is the agent, a provision could be included in the DPOA to require that an alternate agent pre-approve the Contract.

3. The power to execute and amend a Marital Property Agreement. The power to execute or amend a Marital Property Agreement is useful AFTER a spouse is found eligible for Medical Assistance. Prior to eligibility, all assets, no matter how they are titled or classified by a Marital Agreement, are considered available resources. However, after eligibility has been determined, a community spouse may enter into or amend a Marital Property Agreement to reclassify assets as his/her individual property and exercise his/her power of appointment over the assets. If either the Medicaid Recipient or the Community Spouse does not have the capacity to amend a Marital Property Agreement or execute the new document, his/her agent could act on behalf of the spouse that lacks capacity. The Community Spouse (or his/her agent) could then create a Special Needs Trust for the institutionalized spouse and name the trustee of the Special Needs Trust as beneficiary of some or all assets and/or name others as the beneficiaries of the balance of the assets. Of course, certain limitations could be placed on this power such as requiring the pre-approval of an alternate agent, if the agent for the incapacitated spouse is the Community Spouse.

Provisions regarding changing beneficiaries, transferring assets to a revocable trust or an irrevocable trust, changing ownership of life insurance, amending or revoking a revocable trust, and creating a Special Needs Trust are additional provisions that could expand the agent’s ability to engage in “protection planning.” Of course, all of these suggestions are based on the assumption that the agent’s actions comply with the principal’s directions and estate planning goals.

So, before you fill in the blanks of a standard form to save on legal fees, consider using a more powerful and individualized DPOA to protect your estate and accomplish your estate planning goals.

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Finding a Better Way – A Collaborative What?

By Margadette Demet

Divorce is one of life’s emotionally charged and financially stressful events. Participants describe it as a death of sorts. Traditional litigation exacerbates stress. Parties enter the process in an adversarial mode. Anger and disappointment in the failed relationship escalate litigation. Contestants forget the impact on their children and on their own well being and focus only on winning their individual points at all costs. Frustration frequently turns upon their lawyers and other professionals assisting them. We have all experienced client backlash. A case can easily become an expensive free-for-all. Many lawyers will not even consider handling a family law case.

A number of years ago, a Minnesota lawyer, weary of trying to steer his clients through litigated divorce, decided there had to be a better way. The concept of collaborative divorce was born. The idea has since spread across the country and the world. Principles learned along the way can be applied to many other types of legal problems. A recent article in the Los Angeles Daily Journal talks about how collaborative solutions are being used in the housing slump when parties are separating and houses cannot be sold. Couples are arriving at solutions that, in an earlier time, they would not have even dreamed of. This is just one example.

The process works like this: Each party hires a trained collaborative attorney and other collaborative professionals as needed. Attorneys and parties work together in a cooperative and civil manner with the goal of achieving a mutually acceptable agreement. Initially the two parties and their respective attorneys sit down together in a four-way meeting. At the outset, they agree in writing to voluntarily disclose all financial and other relevant information, and to proceed respectfully and in good faith to negotiate a settlement of all issues. They agree to refrain from threatening or using litigation.

The four-way meeting is a key component. It creates a structured setting in which both the parties and the attorneys communicate face to face and negotiate directly with one another. The entire concept is a team approach with everyone working toward the same goal. If additional collaborative professionals are needed, mental health professionals, financial specialists, or child specialists, they are brought into the process. Because everyone involved has committed to voluntary disclosure of all necessary information, the formal discovery process is eliminated. There is no place for argument, or accusation. The parties retain control of and flexibility in their decision making. They do not go to court until the day of the divorce when all issues have been resolved.

The process consists of interest-based negotiation, a method of dispute resolution that redirects the parties to focus on their underlying needs, their children, their values, and their desired outcomes. Despite the contested nature of the issues, in this setting the parties are able to reach a solution without leaving their future in the hands of the judge. Instead, the parties consider issues and possible solutions with the assistance of the professionals and they craft solutions acceptable to both of them. They leave the process without the bitterness, anger, and frustration that traditional divorce can cause. They avoid post judgment battles. Attorneys who practice collaborative law are especially trained to help clients identify interests and manage challenges unique to family law disputes. They also have learned to identify professional team members that may be needed to resolve non legal issues. Mental health professionals serving as coaches for the parties, child specialists and financial specialists are trained and available to solve critical problems.

Trained collaborative lawyers know from experience the value of screening clients carefully to make sure that they can, and will, commit to a collaborative solution. Neither attorneys, clients, nor other professionals have incentive to leave the process once it has begun, because the clients start over in litigation with new attorneys.

The collaborative process exponentially increases the likelihood that parties will resolve their dispute while maintaining a positive relationship with the other party. Parties preserve a civil relationship between themselves, and avoid loss of valuable relationships peripheral to their family – in-laws, other relatives, friends, and colleagues. The positive impact collaboration has on children is well documented. Minimizing hostility and conflict connected with the divorce process changes the experience for children. Research has definitively proven that continued hostility between parents following divorce is damaging to children and this damage can continue well into their adult lives. Moreover, the hostility is damaging to the parties themselves. They must make decisions together about their children for many years after a divorce has taken place. Even after their children are grown, they continue to come in contact for the remainder of their lives at family events.

Clients frequently ask whether or not they can anticipate cost savings in the collaborative process. The process is not necessarily inexpensive, but it does focus all resources on activities that advance resolution. If the collaborative process is successful and results in a complete agreement, as most do, parties will be able to spend less overall in legal fees than they would in a contested process, and they will complete the process with a different outlook.

The International Academy of Collaborative Professionals and the Collaborative Family Law Council of Wisconsin list professionals in each field who are trained and ready to address the challenges which arise in family disputes. Wisconsin professionals are building an excellent track record in this state, and encouraging more of their peers to learn and use the process. It is as good for us in the legal profession as for our clients. Cohorts in Great Britain, Ireland, Canada, and other parts of the world are also convinced that collaboration is the better way.

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Innovative Initiatives and Creative Collaborations: 2009 Wisconsin Equal Justice Conference

The 2009 Wisconsin Equal Justice Conference will bring together all components of the community committed to ensuring civil equal justice for poor and disadvantaged people and communities in our state. This year’s sessions have been organized around a theme of Innovative Initiatives & Creative Collaborations. Join your colleagues on April 28 at the U.W. Pyle Center, 702 Langdon St. in Madison to learn more about what lawyers, courts, and other organizations are doing in Wisconsin and elsewhere to move us closer to equal justice under law. Cost of this full-day program is only $25. The program will be submitted to the Board of Bar Examiners for CLE credit.

Antonio Riley, executive director of the Wisconsin Housing and Economic Development Authority (WHEDA), will be this year’s keynote speaker. Riley was appointed to head the agency by Gov. Jim Doyle in 2003, and he is a member of the newly formed task force on the foreclosure crisis that was appointed by Assembly Speaker Mike Sheridan.

This year’s Wisconsin Equal Justice Conference features a “Rewired, Not Retired” session that is particularly interesting for Senior Lawyers Division members. Featured speakers include: Prof. Marc Galanter, who will be talking about the changing demographics of the legal profession and alternative ways to think about phasing out of active law practice into interesting but less demanding public interest work; Anita Cruise, Kids Matter Inc., who will be speaking about her organization’s new Second Acts project for senior lawyers interested in children’s issues, and Atty. Gerald Ortbals, Bryan Cave LLP, St. Louis, Mo., who will address issues raised by phasing out of a law firm partnership and doing pro bono work.

To register or for more information.

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Medical Mediation Panels: An Opportunity to Serve

By Randy Sproule

The Medical Mediation Panels, codified in Chapter 655 of the Wisconsin Statutes, were created in 1986. With limited exceptions, Chapter 655 requires all parties to a medical malpractice action to participate in the procedure described therein either prior to or immediately after the commencement of a court action. Although referred to in the statutes as “mediation,” the procedure can be more accurately described as early neutral evaluation. This procedure was established in order to provide “an informal, inexpensive and expedient means for resolving disputes without litigation.” Sec. 655.42(1), Stats. The system is funded by assessments against health care providers.

The Medical Mediation Panels were created to replace the Patients Compensation Panels – a nonbinding arbitration procedure that had been in effect since 1975. Over the years, the Patients Compensation Panels procedure had become an expensive, prolonged process. The average arbitration hearing lasted four days; some hearings lasted two or three weeks. The hearings required testimony from expert witnesses. The current format was the result of a concerted effort by the legislature to reduce the cost and length of the procedure used for resolving medical malpractice disputes.

The current statutory format contains the following features:

1. The procedure is nonbinding.

2. Initiation of the procedure is mandatory (although the parties have the authority to waive further activity after a request for mediation has been filed).

3. The procedure must be completed within 90 days after the initiating document (a request for mediation) has been filed unless all parties agree to an extension.

4. The procedure is informal. No physical examinations or productions of records may be ordered, no witnesses may be subpoenaed, no oaths may be administered and no stenographic record may be made of the proceedings. Formal discovery is prohibited during the 90-day period.

5. The procedure is presided over by a panel consisting of an attorney, a health care provider and a public member.

Pursuant to the Guidelines promulgated by the Administrator, the parties are required to submit written statements of the case in advance of the session. The statements explain when and by whom the patient was being treated and the nature of the treatment. Additionally, the statements discuss the propriety or impropriety of the treatment and the nature and extent of the patient’s damages. Finally, the statements indicate the amount, if any, for which the parties are willing to resolve the matter at that stage of the proceedings. The parties are also required to provide copies of the relevant medical records. The statements and medical records are sent to the three-member panel in advance of the session.

On the day of the session, the panel convenes one-half hour before the parties arrive and preliminarily discusses the issues presented in the statements. Upon the arrival of the parties, the claimant supplements the statement with a brief oral presentation of the case. The respondent follows with a similar presentation. The panel members often ask questions of the parties during the presentations.

After the oral presentations, the panel meets with the claimant outside the presence of the respondent, followed by a meeting with the respondent outside of the presence of the claimant. During these ex parte meetings, which are designed to induce more openness and candor than might otherwise exist, the panel discusses the strengths and weaknesses of the case and ascertains the “bottom-line” settlement positions of the parties. The panel continues to shuttle between the parties until the matter is resolved or until the parties reach an impasse, at which time the session is terminated and the panel provides the parties with their objective evaluation of the case. Sessions are typically one and one-half to two hours in duration.

This procedure is designed to fully resolve the less complex, relatively low damage cases. An examination of those cases in which the request for mediation is filed prior to the commencement of a court action and in which the claimant is seeking $25,000 or less indicates that the procedure appears to be accomplishing that objective. Of those cases, 24 percent have been settled at or shortly after and as a result of the session; 49 percent have not been “settled” (in terms of money changing hands) but have not subsequently been filed in circuit court and the statute of limitations has now expired; and in an additional 11 percent of the cases, a court action was subsequently commenced but the parties have indicated that the session nevertheless served a constructive purpose.

An examination of all of the cases in which the request for mediation was filed prior to the commencement of a court action (regardless of the amount of damages at issue) reveals that 8 percent of those cases were resolved at or shortly after and as a result of the session; 40 percent were not settled but have not been filed in circuit court; and 24 percent were filed in court but the parties have indicated that the session nevertheless served a constructive purpose.

The requests for mediation filed in conjunction with the commencement of a court action tend to involve the more complex, potentially higher damage claims. Because of the complexity of those cases and the prohibition against discovery, the defendants are usually unable to adequately evaluate the case in advance of the session. As one might expect, the procedure has been less effective for those cases: only 4 percent are settled at or shortly after and as a result of the session; in an additional 2 percent of the cases the parties were of the opinion that the session served a constructive purpose even in the absence of a settlement.

The mediation sessions are venued throughout the state. Attorney mediators are paid a $150 per diem for the day of the session and $70 per hour for time spent reviewing the medical records and case statements. Additionally, mediators are reimbursed for mileage. For more information about the Medical Mediation Panels or about being added to the roster of mediators, please contact Randy Sproule at (608) 266-7711.

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