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  • Wisconsin Legislature Takes an Active Interest in Foster Care Issues

    The Wisconsin Legislature’s new Task Force on Foster Care represents an opportunity to make meaningful change to keep children safe and to help Wisconsin families be successful, writes Sarah Henery, who encourages those with ideas to get involved.

    Sarah Henery

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    On June 28, 2017, Speaker of the House Robin Vos announced the creation of the Task Force on Foster Care.

    In recognition of the increase in children in out-of-home care statewide, and of the large representation of children ages 2-4 and 14-16 in the system, the speaker has challenged the bipartisan committee with developing ideas to improve the foster care system.

    The co-chairs of the committee are Representative Patrick Snyder and Steve Doyle. Thus far, the task force has held public hearings in Marathon, Iowa, LaCrosse, and Milwaukee counties. A public hearing will likely occur in Green Bay in the coming weeks. The Wisconsin Legislature’s website has information on this new task force.

    The Speaker’s Task Force on Foster Care

    The creation of a task force to look at foster care issues in Wisconsin is timely.

    Last year, the United States Congress proposed the Families First Act, which would have been the most significant change to federal funding for child welfare spending since Adoption and Safe Families Act (ASFA).

    Sarah Henery gov sarah.henery wisconsin Sarah Henery, U.W. 2010, is an Attorney Supervisor with the Wisconsin Department of Children and Families, Milwaukee, where she provides legal advice and guidance on child welfare and administrative law to the Division of Milwaukee Child Protective Services.

    One of the most dramatic changes contained within that bill was a massive reduction in the provision of federal dollars for congregate care placements (in Wisconsin, group homes, and residential care centers [RCCs]). Two of the aims of that bill were to reduce the use of congregate care placements and instead allocate dollars to States for child welfare preventative services. Child welfare agencies would be challenged to not place children in congregate care facilities other than RCCs when necessary and only if those facilities were able to achieve a complicated federal accreditation.

    A Clear Signal

    Ultimately, that bill was not passed. However, the signal is clear that Congress is interested in finding ways to change the way that we do business in child welfare. There is no doubt that out-of-home care, and particularly congregate care, is a costly way of managing the welfare of children.

    There are many people who believe that we could spend those dollars better on preventing children from coming into foster care in the first place. In Wisconsin, the Department of Children and Families has recently increased funding to assist in implementing intensive in home services statewide. However, it will be a learning process for child welfare professionals to figure out how to shift limited resources to front-end intervention.

    Joining In

    Anyone with thoughts and ideas to improve the system should become part of the task force – or other stakeholder groups – to make meaningful reform in the child welfare system.

    Last year the New Yorker published an excellent piece on the cycle of scandal and reform in child welfare. It described how making changes in the wake of a tragedy can lead to long-term legislative policies that may prevent us from making meaningful change in our communities.

    The task force represents an opportunity to engage with the legislature on meaningful change at a different point in the process and to share ideas on how we can keep kids safe and make our Wisconsin families successful.




  • Welcome to the Children & the Law Section Blog

    The Children & the Law Section has established the Children & the Law Section Blog to provide its members with valuable information for attorneys who represent various parties including children, parents, and grandparents, as well as agencies that serve children.
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    Welcome friends, colleagues, and all other interested persons!

    The Children & the Law Section has established the Children & the Law Section Blog to provide its members with valuable information for attorneys who represent various parties including children, parents, and grandparents, as well as agencies that serve children.

    While our members usually pick sides on an issue, the blog submissions are intended to be neutral. We expect them to be of high quality and relevant to you. We also intend to keep them short – submissions should be 500 to 1,500 words.

    While members of the Children & the Law Board will aid in supplying content for the blog, we welcome submissions from other section members. More information concerning standards that apply to our content submissions can be obtained from the blog chair, com calinslaw gmail Christie Christie.

    We expect to post submissions on important topics such as changes in the statutes, important appellate and Supreme Court decisions, and family law, juvenile delinquency and child welfare proceedings. New content will be published at least monthly, so please visit our site for our new additions.

    Happy blogging!

    wi rebecca.kiefer da gov Rebecca Kiefer, section chair
    com calinslaw gmail Christie Christie, blog chair




  • Pay If Paid Clauses in Wisconsin: More Enforceable than You Think

    Construction involves plenty of risk to all parties involved. While Wisconsin has barred “pay if paid” clauses in some circumstances, it is by no means an absolute bar. James Dash and Bryce Cox advise not to assume that all such clauses are unenforceable – and to negotiate accordingly.

    James M. Dash, Bryce R. Cox

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    Think “pay if paid” clauses are unenforceable in Wisconsin? Not always, and if you read the statute too quickly, you may be misled.

    Often, construction contracts include conditional payment clauses, such as “pay if paid” or “pay when paid,” as a means to protect upstream (often general) contractors from the potentially crushing risk of having to pay its subcontractors out of its own pocket when the owner has not yet – and may never – pay the upstream contractor.

    Clauses and Variations: 'Pay When Paid' versus 'Pay If Paid'

    First, let’s make sure we are speaking the same language.

    James M. Dash com jdash carlsondash James M. Dash, Houston 1985, is a founding equity member with Carlson Dash LLC, Pleasant Prairie and Chicago. He has concentrated his practice in construction and land title matters for more than 30 years.

    Bryce R. Cox com bcox carlsondash Bryce R. Cox , Marquette 2011, of Carlson Dash LLC, Pleasant Prairie, focuses his practice on business and commercial real estate.

    When we refer to a “pay if paid” provision, we mean language in a contract between a contractor and a subcontractor that makes payment to the upstream contractor by its customer (usually the owner) an absolute condition precedent to the contractor’s obligation to pay its downstream subcontractor – that is, the upstream contractor has no legal obligation to pay its subcontractor unless and until the upstream contractor is paid by its customer for the subcontractor’s work. The credit risk is passed entirely to the subcontractor.

    On the other hand, a “pay when paid” does not contain language creating an absolute condition precedent to payment. Rather, it states that the upstream contractor’s obligation to pay the subcontractor is delayed until the upstream contractor is paid. In most jurisdictions, whether the contract says so or not, payment may be delayed only for a “reasonable period of time” when such a clause is present.

    Pay When Paid: A 'Reasonable Period of Time'

    Wis. Stat. section 779.135(3) expressly does not prohibit contract provisions that allow a prime contractor to delay payment to a subcontractor until the prime contractor receives payment from its customer. While there is no case authority in Wisconsin on this point, most jurisdictions hold that, in a pay when paid scenario, the upstream contractor has a “reasonable period of time” to make payment to the subcontractor, but may not withhold payment forever regardless of whether the contractor has been paid. Practically speaking, by the time litigation over the construction project has concluded, rest assured that a “reasonable” period of time, whatever that is, will have elapsed.

    Pay If Paid: Prohibited in Wisconsin?

    Depending on how they do business, many Wisconsin contractors may not use or see pay if paid clauses because there is a general belief that Wisconsin law prohibits them.

    Although Wisconsin law prohibits pay if paid clauses in some contexts, the prohibition is not absolute. Section 779.135(3) provides that any provision purporting to make the owner’s payment to a prime contractor a condition precedent to a prime contractor’s payment to a subcontractor, supplier, or service provider is void. But who is a “prime contractor?”

    Wis. Stat. section 779.01(2)(d) defines a “prime contractor” as:

    1. A person, other than a laborer, but including an architect, professional engineer, construction manager, surveyor, or other service provider, employed by the owner, who enters into a contract with an owner of land who is not personally the prime contractor as defined in subd. 2. to improve the land, or who takes over from a prime contractor the uncompleted contract.
    2. An owner of land who acts personally as prime contractor in improving such land.

    Again, there is no published case law from Wisconsin’s courts interpreting section 779.135(3).

    Appears to Apply Only to ‘Prime Contractor’

    However, the statutory language appears to be clear that the prohibition on pay if paid clauses applies only to payment by a “prime contractor.” The legislative history supports this narrow construction. In 2006, the legislature amended section 779.135(3) by replacing the term “general contractor” with the term “prime contractor.” This legislative change strongly suggests that the legislature intended to narrow the prohibition of pay if paid clauses based on the position in the chain of contract (prime versus sub), rather than by the scope of the contract (general versus trade).

    Consequently, pay if paid clauses may be enforceable in Wisconsin – even by general contractors – so long as the party seeking to enforce one is not a “prime contractor.” How would that happen? Let’s look at the traditional “design-bid-build” model in contrast with a “design-build” delivery system.

    Design-Bid-Build versus Design-Build

    In a traditional design-bid-build delivery system, an owner directly contracts separately with a design firm and a construction firm, each of which fits the definition of a prime contractor under section 779.01(2)(d). Any contracts that those “prime contractors” enter into with downstream parties – first-tier subcontractors – are subject to section 779.135(3). Contracts between subcontractors farther downstream, by definition, are not subject to section 779.135(3).

    In the design-build delivery system, an owner directly contracts with only one entity that is a single point of responsibility for both design and construction services, the “design builder.” In this model, the design builder is the prime contractor. Thus, any contract that the design builder enters into directly with downstream parties are subject to section 779.135(3). Typically, the design builder will contract the design services to a separate design entity and the construction services to a general contractor. In this scenario, the general contractor is not a “prime contractor” as defined by the statutes. Accordingly, any contracts that the general (now a sub) contractor enters into with trade contractors downstream do not appear to be subject to the prohibition against pay if paid clauses under section 779.135(3).

    Another Scenario

    Another possible scenario that is beyond the statute’s prohibition is where a general contractor subcontracts with an entity that it wholly or partially owns. It is not uncommon for larger general contractors to own separate companies that perform specific trade work (i.e., carpentry, concrete), and enter into subcontracts with one or more of its subsidiaries that then subcontract with other downstream trade contractors and/or material suppliers.

    There are legitimate business reasons for a general contractor to subcontract some of its prime contract to one or more subsidiaries – and nothing prevents a general contractor from subcontracting all of its prime contract to subsidiaries.1 Under these circumstances, any contract that a subsidiary entity enters into with a downstream party containing a pay if paid clause would fall outside the literal scope of section 779.135(3).

    Absent an adjudication that the first-tier subcontract with the subsidiary is some kind of a sham (and maybe even despite one), the pay if paid clause in the second-tier subcontract presumably would be enforceable because the subsidiary is not a prime contractor under section 779.01(2)(d).

    Mitigating Risk

    Construction involves plenty of risk to all parties involved. The risk that a prime contractor faces – potentially having to pay all of its subcontractors when it has not been paid – is a risk that it understandably would like to allocate to others and, for good reason, one that a subcontractor understandably would prefer not to assume. While Wisconsin has barred pay if paid clauses in some circumstances, it is by no means an absolute bar.

    One would be well advised not to assume that all such clauses are unenforceable – and negotiate accordingly.

    Endnote


    1 For example, a larger project on which we are working is joint-ventured among multiple contractors. The joint venture has subcontracts with each of the joint venture partners for legitimate business reasons.




  • Final Call to Enter the 2017 Golden Gavel Awards Competition

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    OCT. 20, 2017

    CONTACT:
    Kristen Durst
    State Bar of Wisconsin
    (608) 250-6025
    org kdurst wisbar wisbar kdurst org 

     

    Final Call to Enter the 2017 Golden Gavel Awards Competition

     

    Madison, WI   Did you broadcast or post a story that enhanced the public’s understanding of the justice system between July 1, 2016 & June 30, 2017?

    If you did, you’re invited to enter it in the State Bar of Wisconsin’s Golden Gavel Award competition. The deadline is Friday, October 27. There is no entry fee and submitting an entry is simple. All that’s needed is a link to your story or other material and a completed entry form.

    The State Bar sponsors these annual awards because we recognize that most Wisconsin residents rely on the media to keep them informed about important justice-related issues. Our goal is to improve the public’s understanding of the legal system by encouraging outstanding media coverage of those issues.

    A judging committee composed of lawyers, educators and media representatives will select winning entries based on informational value and educational merit, creativity, thoroughness, reportorial and other technical skills and impact.

    Two types of awards are presented, at the discretion of the judging committee: Golden Gavel Awards are presented for outstanding contributions to public understanding of our system of law and justice, and Certificates of Commendation are presented for entries judged to be noteworthy examples of public service messages or other activities that enhance the public’s understanding of the justice system.

    For more information, contact State Bar Public Relations Coordinator Kristen Durst at 608-250-6025 or via email at kdurst@wisbar.org




  • The Deadman’s Statute is (Mostly) Dead in Wisconsin

    On July 1, 2017, the longstanding Deadman’s Statute was repealed – but still may apply to certain pending cases. Jeff Goldman discusses the statute’s background, what it was, and why it may be only “mostly” dead.

    Jeff A. Goldman

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    The repeal of Wisconsin’s longstanding Deadman’s Statute – Wis. Stat. section 885.16 – became effective July 1, 2017.1 By doing so, Wisconsin joined the vast majority of states – and the Federal Rules of Evidence – which have either repealed, superseded, or never adopted the rule.

    The Deadman’s Statute: Prior Application

    The Deadman’s Statute commonly factored into many estate and trust disputes because it rendered a person with a legal interest in the outcome of a particular case “incompetent” to testify regarding a transaction or communication with a deceased person.

    A purpose behind the statute in Wisconsin was:

    to prevent parties to a transaction from obtaining an unfair advantage over another party who has since died. The lips of the one being sealed by death, the lips of the other are sealed by a rule of law which, though arbitrary, is made necessary to prevent greed and avarice from enabling the survivor to perpetrate a fraud.2

    Practically speaking, the Deadman’s Statute also had a chilling effect on interested parties’ claims against or relating to an estate or a decedent, because oftentimes such party’s claim was based solely on his or her own testimony about statements or a transaction with the decedent.

    Jeff A. Goldman com jag dewittross Jeff A. Goldman, U.W. 2002, is the chair of the Estate and Trust Practice Group at DeWitt Ross & Stevens, Madison. His practice focuses on trusts, estates, fiduciary litigation and administration, estate planning, and probate.

    Arguments in Favor of Repeal

    One common rationale against the Deadman’s Statute was that it favored the interests of the dead over the living:

    Are not the estates of living men endangered daily by the present rule which bars from proof so many honest claims? Can it be more important to save dead men’s estates from false claims, than to save living men's estates from loss by lack of proof?3

    Other rationales were that it added to the time and expense of litigation, and was sometimes applied inconsistently by courts. Because of its potentially significant effect on evidence that could be presented and admitted at trial, it was frequently litigated in pre-trial motions and objections at trial.

    Where Does Repeal Leave Us?

    In the absence of the Deadman’s Statute, persons with a legal interest in the outcome of a particular case are no longer incompetent to testify as a witness to transactions or communications with a decedent.

    The check on interested persons’ ability to testify is that another party can present evidence of the witness’s bias. This can be done through the long existing common-law bias rule.4 Very soon, it can also be done through the newly-created Wis. Stat. section 901.06 (effective Jan. 1, 2018):5

    906.16. Bias of witness. For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.

    For attorneys, this presents a new facet to preparing and analyzing a typical estate or trust dispute. It may affect available causes of action, strategy, written discovery, examination, and cross-examination of witnesses at deposition and trial, and objections.

    Instead of relying on the all-or-nothing effect of the Deadman’s Statute on transactions or communications with the decedent, attorneys seeking to limit the effectiveness of a particular witness’s testimony will now need to develop facts and evidence relating to bias, prejudice, interest, and other motives to testify falsely.

    Why It’s Only ‘Mostly’ Dead

    Although the repeal of the Deadman’s Statute was effective as of July 1, 2017, the statute may still apply to proceedings commenced prior to that date:

    this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies.6

    In limited circumstances relating to proceedings that were pending as of July 1, 2017, it is possible that the Deadman’s Statute may still apply.

    Endnotes


    1 Supreme Court Order No. 16-01 (Feb. 21, 2017), 2017 WI 13.

    2 In re Repush’s Will, 257 Wis. 528, 531-32, 44 N.W.2d 240 (1950).

    3 Long v. Molay, 46 Wis.2d 450, 458, 175 N.W.2d 254 (1970) (citation omitted).

    4 E.g., State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (“The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely. … The extent of the inquiry with respect to bias is a matter within the discretion of the trial court.”).

    5 Following a public hearing on Supreme Court Petition 16-02A on Sept. 25, 2017, on Oct. 11, 2017, the Wisconsin Supreme Court entered an order creating section 901.16, among other things (a copy of the order is available on wicourts.gov).

    6 Supreme Court Order No. 16-01, at 3 (emphasis added).




  • Members Only

    If you have moved, become a partner or an associate, or received a promotion or an award, let us know.
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    New Hires, Promotions, Partners

    Aneet Kaur, Marquette 2013, and Jennifer Luther, U.W. 2010 cum laude, have joined Axley Brynelson LLP, Madison, as associates. Kaur focuses in civil litigation, insurance defense, labor and employment law, and worker’s compensation defense. Luther focuses in commercial litigation, insurance claims and defense, and general civil litigation. Kaur and Luther previously practiced at other Madison firms.

    April Rockstead BarkerApril Rockstead Barker, Harvard 1995, has been elected a shareholder at Schott, Bublitz & Engel s.c., Waukesha. She practices in general civil litigation and also regularly advocates for clients in open records matters.

    Christopher R. ClayboughChristopher R. Claybough, DePaul 2012, has joined the State Bar of Wisconsin as an attorney editor. He recently relocated to Madison from Chicago, where he practiced in commercial litigation and represented owners of closely held businesses in matters ranging from breach of contract claims to trademark opposition actions. Claybough focuses on business law, intellectual property, and litigation.

    Judith A. Gundersen, U.W. 1987, has been promoted to president and chief operating officer of the National Conference of Bar Examiners, Madison. She previously was director of test operations and also has been a Dane County assistant district attorney.

    Brenda R. Mayrack, U.W. 2008, has become the managing director of Specialty Audit Services LLC, Narberth, Penn., which provides abandoned and unclaimed property auditing services to state governments.

    Hannah Renfro, U.W. 2004, has joined the Madison office of Rathje & Woodward LLC, a full-service law firm based in Wheaton, Ill. She previously was chief legal officer at the Wisconsin Economic Development Corporation and was instrumental in creating the organization and establishing its legal and compliance functions. Before joining the WEDC, Renfro was a litigator focusing on complex litigation in the areas of political law, antitrust, and intellectual property.

    Tison H. RhineTison H. Rhine, Minnesota 2010, has joined Group Health Cooperative – South Central Wisconsin, Madison, as a compliance attorney. He formerly was the manager of the State Bar of Wisconsin Law Office Management Assistance Program.

    Bethany C. WilsonBethany C. Wilson, U.W. 2017, has joined Haley Palmersheim S.C., Middleton, and concentrates in the areas of business law and business litigation. She previously clerked at a law firm in Shenzhen, China.

    Megan ZurbriggenMegan Zurbriggen, St. Thomas 2012, has become associate director of the U.W. Law School Career Services Office. She previously was program coordinator for law school outreach at the State Bar of Wisconsin.

    Mergers, Relocations, New Offices

    Aaron A. NelsonAdam P. NeroAaron A. Nelson, U.W. 1996, has opened Nelson Defense Group LLC, 811 First St., Suite 101, Hudson, a criminal defense law firm. Adam P. Nero, William Mitchell 2014 magna cum laude, has joined the firm and focuses on OWI and postconviction defense.

    Steimle Birschbach LLC has opened a satellite office in downtown Sheboygan, located in the Nemschoff Building at 909 N. 8th St. Steimle Birschbach is a boutique law firm whose attorneys practice in business, trusts and estates (and elder law), and real estate. The firm’s main office is in Manitowoc.

    Awards, Degrees, Honors

    Jerome F. Buting, North Carolina 1981, was the 2017 recipient of the Champion of Justice Legal Award from the National Association of Criminal Defense Lawyers. The award is bestowed upon those individuals who have staunchly preserved or defended the constitutional rights of American citizens and have fought to ensure justice and due process for persons accused of crime. Buting is a shareholder in Buting, Williams & Stilling S.C., Brookfield.

    In Memoriam

    Christ Alexopoulos, Marquette 1949, Milwaukee, Oct. 11, 1922 – Aug. 10, 2017.

    Scott L. Carey, John Marshall 1983, Chicago, April 6, 1952 – Aug. 14, 2017.

    Michael W. Clancy, Boston College 1998, June 29, 1959 – Aug. 24, 2017.

    Hon. Arlene D. Connors, U.W. 1957, Milwaukee, Feb. 6, 1929 – Aug. 20, 2017.

    Gregory B. Conway, Marquette 1970, Green Bay, Jan. 18, 1944 – Sept. 15, 2017.

    Emil Drobac, U.W. 1949, Madison, Feb. 12, 1924 – Aug. 23, 2017.

    Gerald R. Fox, U.W. 1995, Fairchild, April 20, 1961 – Sept. 4, 2017.

    David J. Hughes, U.W. 1960, Wauwatosa, June 9, 1931 – Aug. 27, 2016.

    Gary M. Socha, Marquette 1975, Appleton, Nov. 26, 1945 – July 18, 2016.

    How to Place your Announcement

    If you have moved, become a partner or an associate, or received a promotion or an award, let us know. Talks, speeches (unless they are of national stature), honors from other publications, and political announcements are not accepted. Notices about State Bar members in good standing are printed as space is available, and at no cost, must be submitted in writing, and may be edited. Questions: (608) 250-6139.

    Photo placement: Submit a professional-quality photo. If the photo is used, the State Bar will issue an invoice ($30 each). Group photos are not accepted. High-resolution electronic photos are preferred.

    Deadline: The first of the month preceding publication. For example, to place an announcement in the May issue, it must be received before April 1. Email to: org MembersOnly wisbar wisbar MembersOnly org. Include your State Bar membership number.




  • Shelf Life

    Verdict: Touchdown!  •  It's a Keeper  •  Not for Me, Maybe for You  •  A Tree Died for This?

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    The Fight to VoteVerdict: Touchdown!

    The Fight to Vote

    By Michael Waldman (New York, NY: Simon & Schuster, 2017). 400 pgs. $18. Order, www.simonandschuster.com.

    Reviewed by Craig R. Johnson

    The Fight to Vote, by Michael Waldman, is a detailed history of populist movements to expand the franchise in the United States, from the revolutionary period through the 2016 elections.

    Waldman is president of the Brennan Center for Justice at the New York University Law School; as a scholar-activist, he is clearly in favor of expanding voter participation. He starts by examining who was able to vote in the earliest elections of the new United States. He details the struggle to expand voting rights beyond those people who traditionally voted in the 13 original colonies – that is, property-owning white men.

    Resistance to expansion was widespread, as exemplified by John Adams in a letter addressing voting qualifications in a new constitution for Massachusetts: “There will be no end of it. New claims will arise. Women will demand a vote … and every man, who has not a farthing, will demand an equal voice with any other in all acts of state.” Nonetheless, they persisted – and slowly the franchise expanded.

    In later chapters, Waldman details the extension of voting rights through five separate constitutional amendments over two centuries – the 15th (guaranteeing the right to African-American men formerly enslaved), the 17th (direct election of U.S. Senators), the 19th (women), the 24th (outlawing poll taxes), and the 26th (18 year olds’ right to vote).

    One consistent theme is the swinging pendulum regarding which party or interest group backed expansion of the franchise. For example, in the early 1800s the Democratic Party fought to expand the franchise to help Andrew Jackson in his war against central banking and entrenched economic power. After 1865, of course, the southern-dominated Democratic Party led the fight against expanding electoral power to newly freed African Americans.

    Later chapters critique contemporary assaults on the Voting Rights Act and other efforts to limit the vote via voter ID laws and challenges to expanded hours at polling places. Waldman details efforts throughout the country to systematically curtail, for partisan gain, voter turn-out in communities in which many low-income and minority-group individuals reside. He notes the finding by the trial court in Wisconsin’s voter ID case, Frank v. Walker, that 300,000 registered voters lacked proper identification under the law – in a state Trump later carried by 27,000 votes. Waldman highlights Judge Posner’s dissent from the Seventh Circuit decision to reverse the trial court in Frank, noting Posner’s characterization of some evidence of voter fraud as “downright goofy, if not paranoid.”

    Waldman’s book is an information-packed and inspiring tale of efforts over two centuries to expand the franchise – the “fight to vote.” These efforts have run into trouble recently as populist movements, traditionally interested in expanding voting rights, have become a collective cudgel to beat them back. Nonetheless, despite the “unsettling new era of American politics” ushered in by the 2016 election, the fight to expand American democracy will continue.

    Craig R. Johnson, U.W. 1994, practices criminal defense and labor law in Milwaukee at Sweet and Associates.

    The Inequality EqualizerVerdict: It’s a Keeper

    The Inequality Equalizer: Want It, Claim It, Own It – and Maximize Your Career Success

    By Jena E. Abernathy (Chicago, IL: ABA Ankerwycke Publishing, 2016). 327 pgs. $22.50 (ABA members). Order, https://shop.americanbar.org/eBus/publications.aspx.

    Reviewed by Farheen M. Ansari

    The Inequality Equalizer caters to a very specific group of readers: young women entering the corporate business field. Abernathy starts each chapter with a short email to her mentee “Megan” to lay out the next topic. I’m not within Abernathy’s target audience, but I nevertheless found myself able to relate to many of the issues discussed and benefited from the lessons in each chapter. I was easily able to apply the corporate real-world examples to the legal world.

    Although this book is written for a younger audience just embarking on their careers, it can be as helpful for those who are years into the work world. People who have recently switched work environments or those who want to change their current circumstances may find it especially useful. To provide a personal example, I started my own solo law practice right out of law school. I worked with other lawyers occasionally and had interns and paralegals, but it was a huge adjustment for me to join a district attorney’s office years later. There aren’t law school classes on office politics and social etiquette (at least when I was in law school), so one of the best ways to learn is to read “self-help work” books such as these.

    For those lawyers who do not have access to a mentor at their firm or office, Abernathy steps into that role by talking directly to the reader. I have read numerous career guides throughout the years, and although I like some more than others, each book has brought at least one unique lesson or perspective. What was unique in The Inequality Equalizer was Abernathy’s overall theme of balancing your inner “junkyard dog” (the scrappy, hard-charging go-getter) with your “inner pedigree” (the polished, poised, advantaged professional). Young or new professionals might have great ideas to help their organization, but, Abernathy warns, if they are defensive and lacking practical skills to know how to present those ideas and how to act on them, it will be hard to be successful.

    This is a well-organized book that gives each lesson its own chapter, teaches the lesson through real-world examples, contains headlines to highlight important points, and lists bullet points to review the lesson at the end of each chapter. The organizational structure makes it easy to go back to the book and read about a particular topic without having to re-read entire chapters. In that aspect, it’s structured like a textbook. The easily skimmable format should appeal to busy lawyers. Particularly useful is the appendix “An A-to-Z List to Leveling the Playing Field,” a brief four-page summary of all the various lessons and advice provided in the book. I am glad to add this book to my library and plan on reading it again.

    Farheen Ansari, Marquette 2009, is an assistant district attorney in Harris County, Texas. She previously practiced criminal defense in Madison.

    Smart Gals’ Guide thru DivorceVerdict: Not for Me, Maybe for You

    The Smart Gals’ Guide thru Divorce: What Lawyers Don’t Tell You

    By Sara A. (Bloomington, IN: WestBow Press, 2017). 149 pgs. $13.46. Order, www.amazon.com.

    Reviewed by Rebecca L. Nelson

    This book is a compilation of tips from the perspective of a person who has gone through divorce but is not a lawyer. I thought this would be an interesting choice because a few people have asked me for referrals for divorce lawyers, and I thought knowing a little more about divorce would be useful. I like the fact that this book discusses the divorce process from beginning to end, including before hiring a lawyer and after the process is over. The writer discusses the “human” aspect of divorce, not just the legal component.

    This book gives insight from a layperson’s perspective, but I think it lacks some necessary sophistication. The text is written like a poem. The book’s stylistic components (layout, font) also are informal, which is distracting. However, the layout does provide space for notes, which may be helpful to some people using the book as a workbook. The book includes practical tips about staying organized, avoiding social media, being smart about finances, and parenting, which are considerations that might not be on a lawyer’s radar. Thus, this book provides good supplemental instruction for a person going through divorce who also has a lawyer.

    The Smart Gal’s Guide thru Divorce is written from a religious perspective, which shifted the emphasis away from nitty-gritty tips about divorce. If I were going to recommend a divorce guide to a friend, I might not recommend this book because of the style of prose and somewhat distracting emphasis on religion. Certainly, religion and spirituality can be a source of comfort to a person sorting through a traumatic and emotional time. As a lawyer, however, I think the religious emphasis makes the writer seem less credible with regard to legal divorce knowledge and more credible with regard to spirituality. Spiritual references might be best suited for a nonfiction book or a book devoted entirely to coping with divorce.

    I respect the effort of the writer, and it appears she is a motivational speaker, such that this book may be read best in conjunction with attending one of her presentations.

    Rebecca L. Nelson, Marquette 2015, is a worker’s compensation defense attorney in Milwaukee.




  • Fiscal 2017 State Bar Financials

    Fiscal 2017 Audited Financial Results At A Glance ... State Bar of Wisconsin, July 1, 2016 - June 30, 2017
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  • Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

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    Criminal Procedure

    Double Jeopardy – Jury Deadlock – Retrial

    State v. Alvarado, 2017 WI App 53 (filed 26 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The jury’s note indicating agreement that the defendant was not guilty on the charged offense was not a verdict of acquittal.

    SUMMARY: Defendant Alvarado was charged with second-degree sexual assault. The case went to trial, and the jury was instructed to consider both second-degree sexual assault and the lesser-included offense of third-degree sexual assault. After deliberating for several hours and sending several notes to the court, the jury sent a final note stating that all jurors “agree on not guilty for the second degree” but “are hung on the third degree.” The court concluded that the jury was deadlocked and ordered a mistrial.

    The state then sought to retry Alvarado, and he moved to dismiss the second-degree charge based on the double-jeopardy provisions of the U.S. and Wisconsin constitutions. The circuit court denied his motion, and the court of appeals granted him leave to appeal. He did not argue on appeal that the circuit court erroneously exercised its discretion in ordering a mistrial or that the court should have instructed the jury on a partial verdict. Rather, he contended that the jurors’ professed agreement on the second-degree sexual assault charge constituted a final verdict. In essence, he argued that the jury’s note “was a verdict in substance, even if not in form” (¶ 10).

    In a decision authored by Judge Hagedorn, the court of appeals affirmed. Said the court: “Simply put, the jury’s note was not, in form or substance, a resolution of some or all of the factual elements of second-degree sexual assault. Because the jury was free to reconsider its currently expressed view on the second-degree sexual assault charge, the jury’s note was not a verdict of acquittal. Therefore, retrying Alvarado on the second-degree sexual assault charge does not violate double jeopardy” (¶ 19).

    Sentence Credit – Conditions of Extended Supervision

    State v. Davis, 2017 WI App 55 (filed 12 July 2017) (ordered published 30 Aug. 2017)

    HOLDINGS: 1) The defendant was entitled to sentence credit from the date of his arrest in the present case until he was received at Dodge Correctional Institution to begin serving a revocation sentence for a prior conviction. 2) The circuit court reasonably imposed absolute sobriety as a condition of extended supervision.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: In this case the defendant argued that the circuit court erred in the calculation of sentence credit and in ordering him to maintain absolute sobriety as a condition of extended supervision. In a decision authored by Judge Gundrum, the court of appeals affirmed.

    On April 21, 2015, while on extended supervision for a 2011 felony conviction, defendant Davis made violent contact with the victim, with whom he had been ordered not to have contact as a condition of his extended supervision. Davis was arrested on that same date and charged with four criminal counts. His extended supervision in the 2011 case was revoked on July 8, 2015, at least in part due to his conduct in the 2015 case, and on July 31, 2015, he was received at Dodge Correctional Institution to serve his revocation sentence. He was sentenced in the new case on Aug. 26, 2015.

    One of the issues on appeal involved the defendant’s entitlement to sentence credit in his 2015 case. The court of appeals concluded that he was entitled to credit from April 21, 2015 (the date of arrest) to July 31, 2015 (the date on which he was received at Dodge to serve his revocation sentence). A convicted offender is entitled to credit “for all days spent in custody in connection with the course of conduct for which the sentence was imposed.” See Wis. Stat. § 973.155(1)(a).

    “[W]e hold that Davis’ sentence on his earlier conviction resumed when he was received at Dodge Correctional on July 31, 2015. With his reception at the institution, his custody was no longer ‘in connection with’ the course of conduct for which he was sentenced in this case; rather, his custody was then solely ‘in connection with’ his earlier conviction. This July 31, 2015 resuming of his sentence in the earlier case … severed the connection between the two cases. Thus, Davis is entitled to sentence credit from the time he was arrested until July 31, 2015” (¶10).

    The appellate court also concluded that the absolute-sobriety condition of extended supervision in the defendant’s 2015 case was reasonable and appropriate. “The postconviction court correctly noted what is common knowledge – that alcohol consumption ‘may impair judgment’ and is ‘often linked to violent or aggressive behavior’ – which behavior the record demonstrated is a significant problem for Davis. It was not a stretch for the court to conclude that Davis and the community will be better served by the absolute sobriety requirement” (¶ 16).

    Among other things before the circuit court was information indicating Davis has a history of substance abuse (see ¶ 15). Though Davis argued that the sentencing judge had no indication that alcohol was related to the 2015 offenses, the appellate court noted that “the law is clear that a condition of supervision need not be related to wrongful actions by a defendant in the particular case before the court” (¶ 16 n.5).

    Employment Law

    At-will Employment Agreements – Impact of Later-adopted Management Policy Regarding Procedures for Investigating Complaints Against Employees

    Bukstein v. Dean Health Sys. Inc., 2017 WI App 54 (filed 20 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The employer lawfully terminated the plaintiff pursuant to an at-will employment agreement entered into between the parties; the employer’s later adoption of a policy providing guidance on conducting investigations of complaints against employees did not modify the at-will employment agreement.

    SUMMARY: Dean Health Systems Inc. terminated the employment of physician-employee Bukstein “without cause,” pursuant to an “at-will” provision in a written employment agreement between Dean and Bukstein. Bukstein then sued Dean for breach of contract and breach of the duty of good faith and fair dealing in connection with the termination. The circuit court denied Dean’s motion for summary judgment, and Bukstein prevailed before a jury on both claims.

    In a decision authored by Judge Blanchard, the court of appeals reversed. It agreed with Dean that the case should have been dismissed on summary judgment, because the at-will provision of the employment agreement authorized Dean to terminate Bukstein without cause (see ¶ 3). Further, it agreed with Dean’s position that Dean was under no duty to terminate Bukstein only in good faith (see ¶ 41).

    Despite the at-will provision in the employment agreement, Bukstein argued that a management policy adopted by Dean after the employment agreement was signed modified the agreement; this policy provides guidelines for Dean investigations into allegations against physician-employees. Again, the court of appeals disagreed with Bukstein.

    “We conclude that case law teaches that a policy like the one here does not modify or take precedence over an at-will employment agreement because of what we will call the ‘only when’ rule…. The ‘only when’ rule provides that policies (whether denominated as a ‘policy,’ or bearing another label, such as ‘handbook,’ ‘manual,’ or ‘procedure’) alter an established at-will employment relationship ‘only when’ the policy ‘contains express provisions from which it can reasonably be inferred that the parties intended to bind each other to a different employment relationship’ than the established at-will relationship” (¶¶ 16-17).

    In this case nothing in the Dean policy shows an intent to abandon the employment-at-will relationship. “At best, the policy provides an alternative route that Dean may or may not pursue in addressing complaints” (¶ 27). Neither party signed the Dean policy; the policy makes no reference, explicit or implied, to the at-will provision of the employment agreement; and the policy generally uses permissive language with respect to Dean investigations (see ¶¶ 29-31). Accordingly, Dean was entitled to summary judgment on each of Bukstein’s claims.

    Torts

    Medical Malpractice – Damages Caps – Unconstitutional

    Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 2017 WI App 52 (filed 5 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The $750,000 cap on noneconomic damages in medical malpractice actions is unconstitutional on its face.

    SUMMARY: The plaintiff suffered severe injuries when the hospital allegedly left untreated her septic infection. Claiming medical malpractice and lack of informed consent, she sued various medical providers and the Wisconsin Injured Patients and Families Compensation Fund (the Fund). A jury found no medical negligence but did find for the plaintiff on the informed-consent claim. It awarded $15 million in noneconomic damages and $1.5 million for her husband’s loss of society and companionship.

    In post-verdict motions, the Fund moved to reduce those damages to the statutory cap amount, $750,000, set forth in Wis. Stat. section 893.55. The circuit court ruled that, while the statutory cap was constitutional on its face, it was unconstitutional as applied.

    The court of appeals affirmed on alternate grounds in an opinion authored by Judge Kessler. The court held that the $750,000 statutory cap was unconstitutional on its face based on the principles set forth in Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. “All of the conclusions reached by the supreme court in Ferdon continue to hold true today. The record before us does not support a finding that the legislative objectives articulated in Wis. Stat. § 893.55 are promoted in any way because the amount of the noneconomic damages cap is $750,000” (¶ 21).

    The court assessed data on physician retention rates, overwrought concerns about “defensive medicine,” the cost of medical insurance premiums, and the billion-plus dollars now sitting in the Fund. The holding centers on the $750,000 cap number, which the court found arbitrary and unsupported by the purported statutory goals.

    Statute of Repose – Evidence – Insurance

    Wosinski v. Advanced Cast Stone Co., 2017 WI App 51 (filed 11 July 2017) (ordered published 30 Aug. 2017)

    HOLDINGS: Judgment was affirmed in part and reversed in part on sundry issues such as the statute of repose, evidence, insurance coverage, pretrial settlement offers, and judgment interest.

    SUMMARY: One person was killed and several others injured when a concrete panel on a public parking garage fell and struck them. The plaintiffs sued various defendants, including the county, subcontractors, and insurers. A jury awarded more than $39 million in compensatory and punitive damages.

    The court of appeals affirmed in part and reversed in part in a long, fact-intensive opinion authored by Judge Brash that addresses numerous issues. The court rejected the argument by a subcontractor, ACS, that the action was blocked by the statute of repose; the court held that sufficient evidence showed the action fell within a statutory exception for concealment and misrepresentation by ACS (see ¶ 38). Nor did the trial court err by applying equitable estoppel to block ACS’s defense based on the six-year statute of limitation for contract actions against the county (see ¶ 43).

    The court also rejected several arguments premised on evidentiary rulings involving hearsay, drawings, and “other acts.” Moreover, the evidence supported the awards against ACS for punitive damages (see ¶ 74) and the deceased’s pain and suffering (see ¶ 98). The trial evidence also supported the breach-of-contract damages obtained by the county (see ¶ 105).

    Turning to the appeal by one insurer, Liberty Insurance Underwriters, the court agreed that there was coverage but reversed findings that Liberty had breached its duty to defend (see ¶ 122) and duty of good faith (see ¶ 132). It thus followed that Liberty was responsible only for its coverage, including punitive damages and emotional-distress damages, but not the entire amount of the damages as the trial court had ruled (see ¶ 139).

    Regarding the plaintiffs’ cross-appeal, the court held that a settlement offer tendered by one party was not valid under Wis. Stat. section 807.01 because it could not be fully and fairly evaluated (see ¶ 158). As to another party’s claim regarding interest on the judgment, the court ruled that the interest accrues only on the amount of damages, not damages plus taxable costs and interest (see ¶ 162).




  • Briefly

    Got a nugget to share? Send your ideas for interesting facts, trends, tips, or other bits and bytes to org wislawmag wisbar wisbar wislawmag org, or comment below.
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    Tech Tip

    Let’s Talk About Business Cards

    networking

    When you exchange business cards, it’s generally an invitation to build on the business relationship.

    Before you lose the business card, you’ll want to capture the contact information. But are you really going to go back to the office and manually enter the new contact information into your contact database? 

    No, and neither is the person who took your card. To cultivate your contacts, you need a better system to capture the contact information.

    Good news! There are apps for that.  Several apps allow you to create digital business cards, making it easier to save and retrieve the information. Just scan business cards through the app, and the app will capture and save the information automatically.

    Costs range from free to around $12 per month, with other features available. Examples of business card apps include:

    • CamCard (camcard.com)
    • Evernote (evernote.com)
    • ScanBizCard (circleback.com/scanbizcards)
    • PracBuilder (pracbuilder.com)

    4%

    –The percentage raise that Wisconsin judges will receive, under the biennial state budget that Gov. Scott Walker signed last month. Judges will get a 2 percent pay hike starting in September 2018 and another 2 percent raise beginning in May 2019.

    Wisconsin Supreme Court Chief Justice Patience Roggensack pushed for judicial pay raises, noting in last year’s State of the Judiciary address that increased salaries will help the state “attract and retain highly skilled and knowledgeable judges.”

    The chief justice said Wisconsin lost 24 judges in 2015 and 19 the year before. She noted that Wisconsin ranks 41st of the 50 states for circuit court pay, and Wisconsin judges are paid less than judges in neighboring states.

    Quotable

    “If traditional law firms used technology to automate tasks, drastically lower their prices and keep giving personalized advice to its clients, they’d have an undeniable competitive advantage over the online companies they’ve been complaining about.”

    digital gavel

    – Attorney Jeff Unger, founder and CEO of eMinutes, a niche law firm that invested $3 million to build a custom software system that ensures compliance with corporate recordkeeping and filing requirements for more than 20,000 companies.

    “Attorneys need to understand that their expertise, education and professional experience gives them the upper hand over legal tech companies. Law firms simply need something to level the playing field: a tech platform of their own.”

    Source: The American Lawyer

    On the Radar

    U.S. Supreme Court Hears Landmark Redistricting Case from Wisconsin

    Wisconsin district map

    The U.S. Supreme Court recently heard oral argument in a potentially landmark redistricting case from Wisconsin that has grabbed national attention and headlines in the last year.

    In Gill v. Whitford (argued Oct. 3), the U.S. Supreme Court will decide whether the Republican-controlled Wisconsin Legislature engaged in unconstitutional partisan gerrymandering when it drew Wisconsin’s voter district maps after the 2010 census.

    The case, which will have national implications, drew nearly 50 amicus curiae briefs prior to oral argument, including briefs from members of Congress and state legislators and governors from Wisconsin and other states. For instance, U.S. Senators John McCain (R-Ariz.) and Sheldon Whitehouse (D-RI) urged the court to “curb the rise of partisan gerrymandering” by affirming the district court’s decision, which struck down the redistricting maps as unconstitutional.

    A decision is expected in 2018, likely affecting the 2018 election cycle.

    Did You Know?

    Judge Richard Posner Retires

    Richard Posner

    Judge Richard Posner, appointed to the U.S. Court of Appeals for the Seventh Circuit in 1981 by President Ronald Reagan, announced his abrupt retirement last month, effective the day after the Seventh Circuit court announced the news. But why?

    In interviews, Posner said he had simply lost interest. But he also said he was frustrated when colleagues rebuffed his ideas related to pro se litigants. He said staff lawyers, not the judges, assess appeals from pro se litigants, and the court generally rubber stamps the recommendations. Posner wanted to start reviewing the staff attorney memos before they went to the judges.

    His new book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, will include more details.

    Sources: ABA Journal; New York Times, Chicago Tribune.

    Good Idea

    Solo but Not Alone

    2017 WSSFC logo

    As a solo practitioner, you have the flexibility and control to be your own boss. “This independence, however, can also lead to overwhelming solitude and isolation,” wrote Ellen Jernigan in the American Bar Association’s GP Solo Magazine.

    The feelings of isolation can intensify without colleagues around you. The good news, Jernigan says, “is that we can learn to manage and even change these feelings, and as a result, become happier and healthier, both personally and professionally.”

    How? Jernigan says there are multiple avenues to foster relationships. One of them is CLE classes and seminars.

    “Push yourself to attend an off-site CLE in your practice area,” she says. “If possible, attend a daylong or overnight conference that includes social events, such as luncheons or receptions; this will allow you to network with others in your practice area. Don’t let shyness or a lack of social confidence hold you back; these events often have a momentum of their own that will draw you in.”

    The State Bar of Wisconsin’s annual Solo & Small Firm Conference is a great opportunity to attend an off-site CLE conference with other solo practitioners.

    The 2017 conference is Oct. 26-28, at the Kalahari Resort in Wisconsin Dells. Check out the schedule at wisbar.org/wssfc.




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    John Doar: In Awe of His Courage

    This New Richmond lawyer is humbled and inspired by the historical significance of another local lawyer. John Doar, the first lawyer in the newly formed U.S. Department of Justice’s Civil Rights Division, courageously fought for school integration, voting rights, and prosecution of criminal violence throughout the South in the 1960s.

    John Doar escortes James Meredith

    John Doar (right) escorts James Meredith to the University of Mississippi admissions office in 1962. Meredith was the first African-American admitted to the university. The event is regarded as a pivotal moment in the history of the Civil Rights Movement of the 1960s.

    Library of Congress, Prints & Photographs Division, U.S. News & World Report Magazine Collection [reproduction number, e.g., LC-U9-15739, frame 18].

    By Gary L. Bakke

    Over the years I have buried my emotions pretty deep. Too deep without doubt; but last month they boiled to the top as I witnessed our local celebration of the legacy of New Richmond native and State Bar member John Doar. I actually choked up as I heard the personal stories about this exceptional lawyer. Prominent civil rights leaders from around the country convened to honor his legacy and recount many firsthand stories about John’s total dedication, leadership abilities, and personal courage. I am in awe.

    John Doar was a local, small-town, northern Wisconsin lawyer who received the Presidential Medal of Freedom. When presenting the award, President Obama noted that without the civil rights efforts of John Doar, he might not have been elected President. Wow!

    The event was New Richmond’s three-day celebration in late August to dedicate the John Doar History Trail, a walk along our riverbank with plaques that depict historic events in John’s life.

    I had met John on several occasions but cannot claim that I really knew him. I had the privilege of talking politics with his mother, and I practiced law for 20 years with his brother Tom Doar. Tom was a great storyteller, so I knew much of the story, but the historical impact of his extraordinary brother had not registered with me.

    Seven heroes from the front lines of the civil rights movement of the 1960s showed up to honor John. Another five speakers discussed his historic role as special counsel to the House Judiciary Committee during the impeachment inquiry of President Nixon.

    A Man with Legendary Courage

    After starting practice in New Richmond, John left the Doar & Knowles law firm of his father, brother, and cousin Warren Knowles to join the U.S. Justice Department under President Kennedy as the first attorney in the newly formed Civil Rights Division. His skill, dedication, and personal courage are legendary.

    He not only accompanied James Meredith, the first black student to enter the University of Mississippi, but also stayed with him in his dorm room and ate with him in the cafeteria. People were killed for lesser acts. John walked every mile of the Selma to Montgomery march with Martin Luther King Jr. and a host of other civil rights leaders. He had to brave the hostility directed at any white person who would dare march with blacks. The danger was real. Civil rights workers Andrew Goodman, James Chaney, and Michael Schwerner were killed after the march.

    A famous photo shows John, with his life on the line, alone in the middle of the street with bricks and bottles crashing around his feet, quelling hundreds of angry black marchers protesting the murder of Medgar Evers as they approached a phalanx of police officers whose  guns were drawn.

    The New York Times obituary says, “He was the face of the Justice Department in the South…. He prosecuted some of the most notorious cases of murder and violence in the South in the ‘60s, and was instrumental in changing the region’s pattern of race-based politics based on voter discrimination.”

    This short essay can only scratch the surface of John’s courageous fight for voting rights, school integration, and prosecution of criminal violence throughout the South in the 1960s. Note that he was joined in the Civil Rights Division by another New Richmond native and State Bar member, Arvid “Bud” Sather, now retired from his Madison law practice. Mary Lee Allen, also of New Richmond, was one of the legal assistants working with John’s civil rights cases.

    When John left the Justice Department for private practice in New York, he didn’t stay out of history-making for long. In 1973, he was retained by Peter Rodino as head legal counsel for the House Judiciary Committee during the impeachment inquiry of President Nixon. Again, the profession can be proud that Madison attorney Richard Cates represented the minority party on that committee. Forswearing all partisanship bickering, the two Wisconsin lawyers guided the committee to a fully bipartisan cooperation, a truly patriotic feat, considering the topic. Doar and Cates were also joined on that committee by a full law-firm size complement of attorneys that included my former law partner New Richmond attorney Tom Bell (whose office mate was Hillary Rodham).

    As an aside, John was a member of a truly amazing family. His cousin and law partner, Warren Knowles, was Wisconsin governor in the mid 1960s at the same time John was with the Justice Department. Their mothers were sisters. And, John was a cousin and great buddy of another New Richmond native, Johnny “Blood” McNally, who was a member of the first class inducted into the National Football League Hall of Fame and is in the Green Bay Packer Hall of Fame.

    Knowing John Doar and then being in the presence of others who also, at great risk and personal sacrifice, dedicated their lives to improving our country, was both humbling and inspiring.

    Gary L. BakkeGary L. Bakke, U.W. 1965, is a principal with Bakke Norman S.C., New Richmond, and a former State Bar of Wisconsin president.

    Pro Bono Portal: Better Way to Connect Lawyers with Pro Bono Opportunities Statewide

    Wisconsin Equal Justice Fund logoDespite the herculean efforts of civil legal aid providers in this state, many low-income Wisconsin residents are forced to make important decisions on life-changing legal matters without the benefit of legal advice. As noted in Jeff Brown’s outstanding March 2017 feature in this publication, “Moving the Needle: Serving Wisconsin’s Low-Income Residents,” the demand for no-cost legal help remains “far higher than the capacity to meet those needs without additional funding” for providers and volunteers.

    There is no shortage of Wisconsin lawyers who are ready, willing, and able to help. Our organization, the Wisconsin Equal Justice Fund, witnesses that public-minded generosity firsthand when seeking donations from lawyers and businesses for nonprofit legal providers in this state.

    But too often lawyers’ natural energy for serving the public good goes unused, particularly when it comes to pro bono work. Each of us has our own unique sets of skills and interests, but we rarely know where, when, or how they could best be put to use. Instead of hand-selecting the right pro bono matters for us, we become passive, waiting until a client, colleague, or other contact personally asks us to help. These direct appeals are effective but inefficient, and finding oneself doing the right work at the right time is often a matter of happenstance.

    There’s a better way to channel charitable spirit into charitable action. Over the past decade, state and local bar associations across the country have implemented pro bono “portals” – online programs that provide one-stop shopping for lawyers looking for volunteer work in their jurisdictions.

    With pro bono portals, legal services providers post volunteer opportunities, and lawyers can search postings by subject area, time commitment, or other fields. With a couple mouse clicks, potential volunteers can read about pre-screened pro bono matters in their communities, share them with colleagues, ask the sponsoring organizations for more information, and pick the right matters for them. From there, volunteers and sponsoring providers can use portals as case-management tools – allowing the providers to securely share relevant documents and helpful samples or templates with volunteers and allowing volunteers to seek guidance when they need it.

    The Wisconsin Equal Justice Fund knows that our State Bar members have a deep well of enthusiasm for public service. A statewide pro bono portal would be an efficient means of tapping it, ensuring that more low-income residents who need legal help are able to get it. Statewide pro bono portals are now being used from Alaska to Florida and many states in between, including our neighbors in Minnesota and Iowa. It is time for Wisconsin to join them.

    For more information about the Wisconsin Equal Justice Fund, visit www.e-justice.org.

    com mlynch foley Matt Lynch, Board President
    Wisconsin Equal Justice Fund

    To Bill or Not to Bill: That Is the Question

    couple by computer

    Including “no charge” for some services on lawyer invoices is a pet peeve of attorney Carolyn Elefant, a frequent presenter on solo and small firm practice issues. What, she wonders, do clients really think of the no charge (as opposed to what lawyers think clients think about no charges)?

    In “Why Lawyers Should Say No to ‘No Charge’ Invoice Items” (Wisconsin Lawyer, July/August 2017), Elefant explains a “no charge” is an entry on an invoice that describes the work that’s been done for the client, but that the lawyer has decided not to charge for. Why do lawyers “no charge”? Basically, she says, to make themselves appear generous by waiving the cost for something they ought never have billed for to begin with – and making sure that the client knows it. Elefant says if you’ve done work that isn’t worth billing for, then don’t put it on the invoice to begin with.

    We asked for your thoughts about “no charges.” Here are some sample responses posted to the article online.

    Reader: The author’s pet peeve is “no charge” entries on attorney statements. That’s fine. The problem arises when she posits that “clients” agree with her based on a sample set of one, a general counsel for a large commercial enterprise, who says “no charge” entries are an annoyance.

    I suspect – but also don’t have any research to back it up – that many less sophisticated consumers think all lawyers charge (too much) for every little thing they do. If that is the case, then an appropriate no or reduced charge entry may help disabuse a client of that misconception.

    Daniel Freund
    Christianson & Freund LLC, Eau Claire

    Reader: Because 90 percent of my work is done on a flat-fee basis, often with agreed-to monthly installment payments, I do line item nearly every activity with a $0.00 cost attached to it, then add my monthly installment or total flat fee owed. Sometimes I include the time for the tasks, sometimes I don’t – it depends on the type of work. I see my invoices as a way of memorializing the work performed for the client and communicating to them what I have been doing – whether it’s research, drafting, phone calls, emails, meetings, reviewing records, and so on. It keeps me accountable so that the work I’m performing matches up with the itemized listing in my representation agreement. I never thought of “no charge” items as a way of saying, “I’m giving you something for free.”

    Johanna R. Kirk
    Kirk Law Office LLC, Superior

    Reader: I don’t do flat fees, but for clients that are repeat fliers, I do sometimes “no charge” some of my time, in a way showing them I am giving something to them for free due to their loyalty. For some of my clients, I do more of that than others: I have one client in particular that seems to always want random advice and never wants to pay for it; I do track all my small little telephone calls and show him the “no charge” for them so as to entice him to understand that he is getting a great deal. Sort of depends on the client.

    Amy Strege
    Finn & Finn Ltd., Waukegan, Ill.

    Reader: I think the danger is that listing “no charge” will sound like, “You really owe me for this, but I’ve generously decided not to demand payment. Aren’t I great?” (I’ve received a bill for legal services myself that came across that way, in fact.) I appreciated the reminder that clients sometimes perceive things in a way a lawyer wouldn’t expect. That’s worth thinking about, especially when it comes to bills.

    Benjamin Wright
    Elder Advisors Law, Janesville




  • Lender Transfers Insufficient to Show Ownership of Auto Loan Debt

    Joe Forward

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    Auto Loan

    Oct. 17, 2017 – The last in a line of successive companies that acquired auto loan debt portfolios failed to establish ownership of a specific debt with sufficient evidence for summary judgment against the individual debtors, a state appeals court has ruled.

    Leroy and Roger Jones (Jones) purchased a used car in 2007, financing the purchase with a loan and security agreement establishing an installment payment schedule. Jones stopped payments, resulting in repossession and sale of the car in 2009.

    The finance company that owned the loan obtained a default judgment against Jones for a deficiency. In 2015, Gemini Capital Group LLC filed a lawsuit against Jones to recover on the default judgment obtained by the previous loan holder.

    To establish ownership of the debt, Gemini submitted an affidavit from its records custodian, Roger Neustadt, who listed the dates and names of companies involved in successive transfers of auto debt portfolios containing many individual debts.

    The circuit court in Sawyer County granted summary judgment to Gemini, concluding Gemini provided sufficient evidence to show Gemini owned the Jones debt.

    But in Gemini Capital Group, LLC v. Jones, 2016AP2123 (Oct. 17, 2017), a three-judge panel for the District III Appeals Court reversed, concluding Gemini’s evidence was not sufficient and summary judgment was not properly granted.

    “Gemini argues the documents attached to Neustadt’s affidavit establish its ownership of the debt,” wrote Judge Lisa Stark. “We conclude, however, that the documents attached to Neustadt’s affidavit are insufficient to establish Gemini’s ownership.”

    The panel noted that, aside from the first assignment, “none of the documents attached to Neustadt’s affidavit specifically reference Jones’ debt.” Records showed transactions involving auto loan portfolios without showing whether the Jones debt was part of it. That is, the transactions did not include reference to individual accounts or debts.

    “We believe it self-evident that, in order to make a prima facie showing that it is the owner of the debt, Gemini must present evidence showing that it is the owner of Jones’ debt. Gemini must present evidence that it owns that specific debt,” Judge Stark wrote.

    Evidence of a transfer of unspecified debts was “insufficient to make a prima facie showing that Gemini currently owns Jones’ debt, such that it is the real party in interest and has standing to obtain a deficiency judgment against Jones,” Judge Stark wrote.

    The panel also concluded that the record custodian’s affidavit, which averred that the Jones account was part of the portfolio transfers was insufficient. “We have already concluded those documents are insufficient to make a prima facie showing that Jones’ debt, specifically, was transferred between the listed entities,” Judge Stark wrote.

    “Because the documents themselves are insufficient to make a prima facie showing that Gemini owns the debt, Neustadt’s averments based on those documents are also insufficient.”

    Jones, through attorney Matthew Lein of Lein Law Offices in Hayward, also argued that summary judgment was improperly granted because Gemini did not show compliance with Wis. Stat. section 425.209(1), which says consumers are “not liable for deficiencies unless the merchant has disposed of the goods in good faith and in a commercially reasonable manner.” On this point, the panel also agreed with Jones.

    “[I]n order to make a prima facie case for summary judgment, Gemini was required to present evidence demonstrating that Jones’ vehicle was disposed of in a commercially reasonable manner,” Judge Stark wrote.

    “Because it is undisputed Gemini failed to present any evidence on that issue, we agree with Jones that the circuit court erred by granting Gemini summary judgment.”

    Finally, the panel agreed with Jones that a disputed issue of material fact still exists with respect to Jones’ last payment, which bears on whether Gemini timely filed the lawsuit within the six-year statute of limitations period.

    “[W]e conclude there is a genuine issue of material fact as to whether Jones consented to the July 29, 2009, payment being made on his behalf, such that the payment triggered operation of the partial payment doctrine and therefore tolled the statute of limitations.”




  • Do Good, Do Pro Bono: Free Training with Legal Action of Wisconsin

    The Volunteer Lawyers Project offers free CLE-approved training to lawyers who volunteer with Legal Action of Wisconsin. Register today – training begins tomorrow, Oct.19, in Madison, with additional training offered in La Crosse and Milwaukee through Nov. 17.
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    Oct. 18, 2017 – Attorneys who volunteer their time through Legal Action's Volunteer Lawyers Project (VLP) make a big difference for low-income residents of Wisconsin.

    The VLP offers free CLE-approved training to lawyers who commit to providing pro bono legal services to Legal Action of Wisconsin’s low-income clients.

    The 2017 VLP fall training series takes place Oct. 19-20 in Madison, Oct. 27 in La Crosse, and Nov. 15-17 in Milwaukee.

    Volunteers Needed

    Legal Action of Wisconsin needs volunteers to represent clients in:

    • Protection orders (domestic violence victims)
    • Family law cases (e.g., divorce and custody, etc.)
    • Evictions and other housing and foreclosure cases
    • Consumer cases
    • Small business startup and business assistance

    The organization is also seeking volunteers to provide advice during advice clinic times on:

    • Evictions and other housing law problems
    • Consumer and bankruptcy issues

    Free CLE-approved Training

    The annual series of seminars begins in Madison at the Goodman Community Center.  

    The seminars in Madison this week are:

    • Oct. 19 – Representing Clients in Bankruptcy
    • Oct. 19 – Estate Planning for Small Estates
    • Oct. 20 – Family Law

    The training seminar in La Crosse will be at the La Crosse County Courthouse:

    • Oct. 27 –  Guardian ad Litem and Family Law

    The training continues in Milwaukee at UWM School of Continuing Education:

    • Nov. 15 – Consumer Law
    • Nov. 16 – Unemployment Compensation and Tax Law
    • Nov. 17 – Eliminating Barriers to Employment

    The VLP offers this training to recruit and support lawyers who provide pro bono legal services to low-income residents of the 39 southernmost counties in Wisconsin.

    This is an especially important time to get involved in pro bono legal services while the number of people needing assistance increases and funding for legal services providers has been drastically reduced.

    More information about the VLP’s training program and the work of the Volunteer Lawyers Project is available on the VLP website or by calling (414) 278-7722 or toll-free at (888) 278-0633.




  • Witness a Live Computer Hack at Solo & Small Firm Conference Next Week

    Understand what it takes to defend your firm from cyber threats. Watch live as a “cybercriminal” hacks into a computer network and demonstrates common vulnerabilities.
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    Oct 18, 2017 – Ransomware, phishing, hacks via social media, and other data breaches are expensive cybersecurity lessons for solo practices and small firms.

    What does it take to defend your practice and your firm from cyber threats? Watch live as a “cybercriminal” hacks into a computer network – and learn where your vulnerabilities are. It's all part of the plenary session "Don’t Be a Target: Cybersecurity," with Joseph Granneman, founder and CEO of illumination.io, a cybersecurity consulting firm that focuses on defending, detecting, and preventing cyber attacks.

    The session takes place Oct. 26 at the 2017 Wisconsin Solo & Small Firm Conference at the Kalahari Resort in Wisconsin Dells, which runs Oct. 26-28.

    Granneman will show how quickly and easily a cybercriminal can get your information and demonstrate phishing, a web server attack, and how easily he can "crack" a password.

    Learn easy and no-cost tips to protect valuable information. From password strength to encryption to wireless considerations, you will come away with strategies you can use immediately.

    Strengthening Wisconsin’s Solo and Small-Firm Attorneys

    The Wisconsin Solo & Small Firm Conference helps you face unique challenges in your practice every day – from having to stay on top of changes (often to multiple practice areas) to running the business side of your firm.

    The conference is a chance to learn from fellow attorneys, share your successes and setbacks, swap stories, and establish referral relationships. Visit exhibitors at the Legal Expo for tools, services, and ideas to keep your practice thriving. Learn strategies for feeling better, working smarter, and reducing stress. And charge your devices while enjoying a break at the Practice411 Tech Lounge.

    Take the time to relax and unwind at the reception on Thursday evening. And make new and valuable connections by signing up for a dine-around with a conference speaker or planning committee member at a Wisconsin Dells restaurant.

    Earn Up to 15.5 Credits – and Up to 8 More Via Webcasts after the Conference

    Choose from CLE topics you won’t find anywhere else as you learn essential strategies and time-tested techniques for propelling yourself to success. Experience three days of CLE, plus access to recorded sessions after the conference ends.

    Earn up to 15.5 credits, as well as up to 9.5 EPR credits.

    New this year, the Wisconsin Board of Bar Examiners grants credit for lawyer awareness and understanding (LAU) and law practice management (LPM) credit. Choose from 15 different sessions to earn up to 6.0 LPM credits and up to 3.5 LAU credits.

    For more information on LAU and LPM credits, see the Notice on wicourts.gov and Your Guide to Earning, Tracking, and Reporting CLE in this issue of InsideTrack.

    As a special bonus, attendees will have the opportunity after the conference to watch webcasts of selected programs recorded at the conference – earning up to 8.0 additional credits at no extra charge.

    First-time Attendees Save $50 on Registration

    First-time registrant? Take $50 off the regular tuition rate of $349.

    Become an Ultimate Pass Gold subscriber and get free tuition, or use the Ultimate Pass Silver, which gives you 50-percent off tuition.

    To register:

    • Register on WisBar’s Marketplace (credit card or Ultimate Pass only)

    • Phone: (800) 728-7788 (credit card or Ultimate Pass only)

    • Fax: (608) 250-6020 (credit card or Ultimate Pass only)

    • Mail: State Bar PINNACLE Registrations, P.O. Box 7158, Madison, WI 53707-7158 (check, credit card, passbooks, or Ultimate Pass)

    At the Kalahari Resort

    Bring your family for a mini-vacation at the Kalahari Resort & Convention Center in Wisconsin Dells. Ideally located in the heart of Wisconsin, the Kalahari Resort features a 27-hole golf club, spa, dining, retail shopping, movie theater, and waterparks. To reserve your room, call (877) 253-5466.




  • Wm. Pharis Horton: A Strong Advocate for the Solo Attorney

    At age 83, he’s going strong – practicing as a solo attorney and mentoring the next generation of real estate attorneys. Wm. Pharis Horton is the 2017 recipient of the John Lederer Service Award -- he receives it next week at the Wisconsin Solo & Small Firm Conference.

    Shannon Green

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    Madison real estate attorney Wm. Pharis Horton, pictured here with his 8-year-old miniature poodle Nelly, is the 2017 recipient of the John Lederer Distinguished Service Award.

    Oct. 18, 2017 – A guide. A lawyer with a keen sense of language and turn of phrase. An advocate for the solo and small-firm attorney. And is going strong at age 83.

    Madison real estate attorney Wm. Pharis Horton will receive the 2017 John Lederer Service Award on Oct. 27 at the 2017 Wisconsin Solo & Small Firm Conference in Wisconsin Dells. The award is sponsored by the State Bar of Wisconsin Solo/Small Firm & General Practice Section.

    John Lederer, the award’s namesake, saw it as his mission to help solo and small-firm lawyers master skills and technology to build their practices. Lederer was a visionary when it came to implementing technology into the practice of law.

    Those chosen for the award show “continued, selfless service to solo and small-firm practitioners across Wisconsin,” says Nancy Trueblood, chair of the award’s nominating committee.

    “I feel greatly honored and totally awed,” Horton said about receiving the award. “So many other people have done so much for solo and small practice. I very much appreciate the honor.”

    A Guide, a Strong Advocate

    Horton is an attorney who never sought attention for himself, but whose work deserves recognition, says Lowell Sweet, a past recipient who nominated Horton for the award.

    He has volunteered many hours over the years helping other attorneys learn about real estate and condominium law.

    “He is a strong advocate for solo and small-firm attorneys,” Sweet said. “He is always willing to help other attorneys who contacted him.”

    Horton served for many years as a guiding member of the former Solo & Small Firm Committee – the precursor to the Solo/Small Firm & General Practice Section. He was there to step in and help when Trueblood, a “very new lawyer” at the time, took up the mantle of leading the Solo & Small Firm Committee, needing to quickly learn how to motivate volunteers and the ins and outs of the State Bar.

    “Pharis was one of my primary guides,” Trueblood said.

    His experience as a solo practitioner shaped the section’s initiatives, she said. “They still inform the section’s work today.”

    Living with Extremes

    Horton grew up in the Ozarks and later moved with his family to Minneapolis, and attended college and law school on the East Coast. He received his undergraduate degree from Dartmouth College, Hanover, New Hampshire, and his law degree from Georgetown Law School, Washington, D.C.

    After law school, he served as an administrative assistant to Congressman Tom Curtis of St. Louis, where he contemplated his future if he stayed in Washington, D.C.

    He was on a path to become a lobbyist, “which I did not want to do,” he said.

    Looking around for a place to start a practice, he decided to return to the Midwest. In January 1963, he interviewed with a firm in Madison – and it was minus 30 degrees. It was his first time in the city. “When I later came back to write the bar exam, it was 90 degrees,” Horton recalls.

    Those temperatures did not deter him. “I thought, OK, I’ve seen both extremes – I can live with that.”

    He worked 21 years at Murphy, Stolper and Desmond, where he began a practice in real estate, as well as work with trade associations. In 1984, he went solo.

    “Fortunately, I had a strong client base at the time,” he said. He felt fortunate that he had experience and clients when he chose to start a solo practice – rather than starting as a new lawyer straight out of law school. “I don’t know anyone braver than that,” Horton said.

    Service to the Profession

    Horton, in addition to practicing successfully as a solo attorney in real estate, was active in creating the Solo & Small Firm Conference, and was instrumental in shaping the State Bar’s annual real estate update CLE program from the early 1990s, acting as chair of the program and as a presenter for many years.

    org sgreen wisbar Shannon Green is communications writer for the State Bar of Wisconsin, Madison. She can be reached by org sgreen wisbar email or by phone at (608) 250-6135.

    Horton served on the committee that led to the creation of the Wisconsin Lawyers Mutual Insurance Company (WILMIC) – organized in 1986 by the State Bar in response to concerns regarding the cost and availability of professional liability insurance.

    He is an editor and contributing author for CLE books on real estate, including the Wisconsin Condominium Law Handbook from State Bar of Wisconsin PINNACLE®. He most recently contributed to the Real Property, Probate, and Trust Law Section’s blog.

    “I’ve enjoyed the relationship with the State Bar and the committees I’ve been on,” Horton said.

    Horton served on the Real Estate Forms Council of the Wisconsin Department of Regulation and Licensing, and has taught a variety of programs for attorneys and realtors. “A lot of the nonsense that one finds in real estate contracting and conveyancing is my fault,” he said, joking. The forms are very helpful for the practice. “You don’t have to start from ground zero,” he said.

    Practicing Solo

    Already an experienced real estate attorney when he transitioned to a solo practice, Horton was least prepared, he admits, to manage the business side of things. Thankfully, his wife, Carolyn, had recently earned an MBA. “She ran my office, and my life then became much easier,” he said.

    His recommendation for aspiring solo attorneys? “Marry an MBA,” he joked.

    Humor aside, he advises solo attorneys to:

    1. Understand and keep up with technology;

    2. Keep things as simple as possible; and

    3. Take advantage of what the State Bar has to offer.

    Look for CLE seminars aimed at the solo practitioner. “The State Bar does a marvelous job of keeping people up to date and giving them new ideas,” he said.

    And one more thing: “His sense of humor is priceless,” Sweet said.