Dec. 20, 2023 – As the world left the COVID-19 pandemic in the rearview mirror, Wisconsin’s legal community turned its attention to criminal justice funding, a statewide court reporter shortage, and the rise of artificial intelligence (AI).

High-profile U.S. Supreme Court and Wisconsin Supreme Court decisions, a federal proposal to ban non-compete agreements, new rules regarding electronic transactions, cell phone discovery, rural practice shortages, criminal justice funding, and the Corporate Transparency Act gave Wisconsin attorneys plenty to think about.

State Bar of Wisconsin members continued to mark career milestones, give and accept awards, and volunteer with the State Bar’s 26 sections and 20 committees.

We look back on 2023 by highlighting the State Bar’s top 19 articles, in no particular order. The articles appeared in Wisconsin Lawyer™ and WisBar InsideTrack™.

The Top 19 Articles of 2023

1. Significant Supreme Court Decisions Still Pending (IT, June)

State Bar of Wisconsin communications director Joe Forward reviewed 25 U.S. Supreme Court pending cases in this June article.

Those cases included disputes over President Biden’s student loan forgiveness program, a challenge to a North Carolina Supreme Court decision on redistricting, and the Navajo Nation’s water rights to the Colorado River.

Forward also noted that the high court was considering a petition on an appeal from the Wisconsin Supreme Court.

The case involved a defendant who refused to consent to a blood draw after a preliminary breath test indicated that he was driving under the influence.

“[The defendant] … argued that the warrant failed to satisfy the oath or affirmation requirements of the Fourth Amendment to the U.S. Constitution and the Wisconsin Constitution,” Forward wrote.

2. ChatGPT Artificial Intelligence: Will it Replace Lawyers and Legal Staff? (WL, February)

Christopher Shattuck, then the State Bar’s practice management advisor, explained that ChatGPT artificial intelligence is a powerful tool to help attorneys be more efficient.

“ChatGPT can do much more than merely answer simple questions and is more powerful than Google,” Shattuck wrote. “For example, ChatGPT can generate client communications and legal arguments for use in brief writing and summarize legal content for marketing purposes (and it even helped edit the first draft of this article).”

Shattuck precited that artificial intelligence would be a boon to attorneys.

“The ability to automate the work product of attorneys and other legal professionals will undoubtedly result in the reduction of the total hours needed to complete tasks,” Shattuck wrote.

“These advancements should not be met with resistance or fear; they will present an opportunity for attorneys to have more time to focus on billable hours and the higher-level skills needed to best represent clients.

3. FTC Proposes Nationwide Ban on Non-compete Agreements (IT, July)

This article detailed a proposal by the Federal Trade Commission to ban non-compete clauses and other restrictive employment covenants.

Sally Piefer, a partner at Lindn​er & Marsack in Milwaukee, said that employers will have their work cut out for them if the FTC adopts the proposed rule.

“It’s really a matter of making sure from a drafting standpoint that you’re carefully drafting those restrictions, so they don’t cross the line,” Piefer said. “But at this point, we don’t know what that line is. The FTC has sort of left that vague, which is a concern.”

Laura Lindner, a partner at Lindner Law LLC, has practiced employment law for nearly 30 years. Lindner, who represents workers, doesn’t think the proposed FTC rule will become law.

“We haven’t had any federal law on this,” Lindner said. “I think it should be a matter of state law because different markets have different considerations. If you’re in a big metro area – New York, Chicago, L.A. – it’s going to be different.

“It’s not a one-size-fits-all situation,” Lindner said. “That’s always been the problem with these agreements – employers overreach and draft these very broad agreements.”

4. Seven Days in June: The U.S. Supreme Court and a Constitutional Revolution (WL, February)

University of Wisconsin Law School Professor Howard Schweber argued that the U.S. Supreme Court has, since the 1980s, been engaged in a revolution against the prevailing paradigm of substantive due process.

Schweber described that paradigm as “A long-established orthodox paradigm recognized substantive due process rights as contained in a broad conception of ‘liberty,’ and a challenging view proposed curtailing the scope of such rights by appeal to a principle of historical precedent and specificity.”

Schweber cited the Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization and New York Pistol and Rifle Association v. Bruen as examples of originalism, a constitutional rubric that focuses on whether a claimed right is “deeply rooted in the nation’s history and tradition,” in the words of Justice Samuel Alito.

In Dobbs, the court overturned Roe v. Wade and held that there is no federal constitutional right to have an abortion.

In Bruen, the court struck down a New York law that required an application for a concealed carry permit to show “proper cause” or a special need for the permit.

Schweber argued that the results in Dobbs and Bruen signal that a majority of the Supreme Court is willing to change the course of judicial lawmaking in the U.S.

5. Kelli Thompson: Devoted to the Office of the Public Defender (IT, October)

State Bar communications writer Shannon Green profiled State Public Defender Kelli Thompson, shortly after Thompson announced she was stepping down from the post.

Thompson, who was appointed State Public Defender in 2011, said the state public defender office was “the most critical part of the justice system, because we represent the individual against the government. We help protect individual rights and liberty, the Constitution, and due process rights.”

Thompson, daughter of former governor Tommy G. Thompson, said the support of her family, friends and colleagues was essential during her time in the role.

“You get to be phenomenal litigators with amazing support staff – you have these very smart people coming together to protect individual liberties, the Constitution, due process,” Thompson said. “What bigger privilege is there really, to be able say this is what I get to do?”

“But it’s exhausting. I hit my head against the wall every single day. I quit maybe once per week. We’re asking the criminal justice system to do way too much that it’s not equipped to do,” Thompson said.

6. 30-Days’ Notice Requirement: Making or Breaking Eviction Cases (WL, February)

A 30-days’ eviction notice requirement enacted as part of federal pandemic relief legislation in 2020 was the subject of this article by Legal Aid Society of Milwaukee, Inc. attorneys Nicholas Toman and Luke Dremel.

The notice requirement only applies to certain properties.

Some properties, the authors wrote, are listed in a searchable public database.

“In contrast, much more difficult to find are properties that are subject to the CARES Act because of receipt of federally backed mortgage loans for single-family rental homes of one to four units or because of rental assistance payments made to the property owner through ERA1 or ERA2 programs,” Toman and Dremel wrote.

“A person must make an appointment with the county register of deeds to confirm if any mortgage loans for single-family rental homes are federally backed.”

7. Corporate Transparency Act: Prepare for Compliance Now (WL, December)

In this article, Kent L. Schlienger provided a detailed overview of the requirements of the federal Corporate Transparency Act, which takes effect on Jan. 1, 2004.

The act requires most entities and closely held businesses in the U.S. to report to the federal government certain information about the entity, the persons who filed the formation or registration documents, and persons who have any direct or indirect control over the entity.

According to Schlienger, the act will have a broad and lasting effect on most attorneys’ practices.

“The comprehensive and pervasive scope of the CTA will require entities and their attorneys to quickly learn, adjust, and adapt to its requirements,” Schlienger wrote. “No longer can a newly organized entity’s ownership and governance issues be deferred for months and then resolved by documents retroactively dated to its formation.”

“Key officer resignations, removals, and appointments and significant ownership changes must occur in real time,” Schlienger said. “Entities must become familiar immediately with some of their owners’ and investors’ most sensitive personal information and monitor any changes to it.”

8. ‘Help Wanted:’ Highest Demand Practice Areas in Rural Wisconsin (WL, October)

An informal survey of judges in rural Wisconsin revealed that criminal law, family law, and child/juveniles in need of protection or services matters are the top three practice needs in rural Wisconsin, wrote Shari LePage Locante.

LePage Locante, who has practiced in rural Wisconsin for 37 years, said that criminal defense and family law matters occupied the bulk of her time as a young attorney.

But LePage Locante, who practices in Sparta, said that small-town attorneys are often called upon to help clients with a wide variety of legal needs. Meeting those needs, LePage Locante said, brings rich rewards.

“The clients of my small-town firm are very loyal, expressing pride over the duration of our attorney-client relationship,” LePage Locante wrote.

“I was fortunate to join a firm in operation for nearly 100 years, and many clients’ parents and grandparents also used our firm. This loyalty often results in the opportunity to represent a client in different matters.”

9. The Art of Advancing Wisconsin Constitutional Claims (WL, March)

Recent decisions from the Wisconsin Supreme Court instruct that litigants before the state’s high court should focus on constitutional text and evidence of how the text was understood when it was adopted, wrote Attorney Caleb R. Gerbitz.

“Once you identify the relevant text, the next step is to ask the question that will guide the rest of the analytical inquiry: What was this text understood to mean when it was adopted?” Gerlitz wrote.

“You should ask this question regardless of ideological preference or judicial philosophy,” Gerlitz wrote. “Focus your inquiry on how the constitutional text was understood when it was adopted because doing so positions you to find the most

persuasive evidence to support your constitutional argument (and score a win for your client).”

Among the sources of historical “evidence of meaning” cited by Gerlitz are notes from Wisconsin’s two constitutional conventions, the 1849 statutes, and newspaper archives.

10. Criminal Justice Crisis: ‘The Bill is Coming Due’ (WL, April)

This article on the criminal defense staffing crisis featured interviews with a district attorney, a private criminal defense attorney, and the lobbyist for the State Public Defender.

Outagamie County District Attorney Melinda Tempelis pointed out that the starting salary for an assistant district attorney was $54,000 – less than the starting wage for a mill worker.

“That’s just not sustainable for people who are coming out of law school with six-figure debt,” Tempelis said. “People get married, have children, want to buy a house, need a new car, need to pay their school debt. It’s not enough money to sustain a life that’s feasible, let alone glamourous.”

Adam Plotkin, the SPD’s legislative liaison, said that low pay had forced some public defenders to take on second jobs.

“It’s a pretty low starting salary, especially for a professional job with the responsibility and workloads that these folks have,” said Plotkin. “No one ever got into this work to become rich, but they do want to make a living wage.”

11. Unfunded Trusts, HIPAA Authorizations Are Common Estate Planning Issues (IT, November)

Attorneys must do more than fill in the blanks to help clients with estate planning needs, said two State Bar members interviewed for an overview of common estate planning issues.

Dera Johnsen-Tracy said estate planning attorneys often create a trust for a client but don’t follow through on funding the trust.

Johnsen-Tracy likens an effective estate plan to a completed jigsaw puzzle. Setting up a trust without funding it leaves the puzzle missing some pieces.

“When you have a trust and it’s not funded, well now we have to go through probate anyway to get the assets into the trust after death through the pour-over will, but the whole point was to avoid probate,” Johnsen-Tracy said.

According to John Horn, another common mistake is naming a relative with special needs as an heir in a will. That can cause problems if that relative is receiving government benefits, because the inheritance can imperil the relative’s eligibility for benefits.

“Then, we have to go into court after the fact and do a WisPACT trust or a third-party trust,” Horn. “But that’s much harder and more expensive and more stressful and the outcome is not guaranteed.”

12. Discovery from Cell Phones in Civil Cases (WL, January)

The ubiquity of smartphones has led to an explosion of litigation regarding the discovery of information contained in them, wrote Matthew C. Lein.

Lein, of Lein Law Offices LLP in Hayward, wrote that smartphone discovery is often critical in car crash cases.

“Smartphones, GPS systems, and other devices might contain or provide access to information about what happened before, during, and after a collision,” Lein wrote.

But smartphone searches must comply with state and federal privacy laws, Lein wrote.

“Wisconsin courts require any parties involved in a civil suit to obtain permission from the court before obtaining any cell phone records or other data pertaining to another party’s cell phone,” he wrote.

“This protects both the plaintiff and the defendant from any potential privacy violations during litigation. Additionally, individuals whose phones will be searched must be informed and told the reason for the search before a search is done.”

13. 50-year Member: Magistrate Judge William Callahan (IT, November)

U.S. Magistrate Judge William Callahan looked back on his career in this 50-year member profile.

Callahan, who grew up in Milwaukee, worked as a private litigation and an Assistant U.S. Attorney before being appointed to the bench in 1995. He said he relied upon his experience as a trial lawyer to be an effective jurist.

“I didn’t want to be the kind of judge that created more stress for them, because I knew what they were going through, so I tried to be as patient as I could be with the lawyers without letting them run roughshod over me,” Callahan said.

“I know how hard it is, especially in private practice. It’s hard to get work, it’s hard to do the work, and oftentimes it’s hard to get paid for the work.”

14. Emotional Intelligence and Cultural Competency: Keys to Being Effective In-house Lawyers (WL, June)

Mai Der Shaw, assistant general counsel for compliance at Harley-Davidson, wrote that to be effective, in-house attorneys must display emotional intelligence and cultural competency.

“Given today’s diverse workforce, the global economy, and the international footprint of many companies, developing cultural competency is crucial to providing effective counsel,” Der Shaw wrote.

“The ability to understand, appreciate, and interact with people from cultures or belief systems different from one’s own gets to the core of understanding what a business and its stakeholders are seeking when they engage the legal department for assistance.”

Der Shaw listed the qualities of an emotionally intelligent attorney.

“An emotionally intelligent lawyer is self-aware, able to identify social cues that might not be apparent, open to feedback and perspectives that might be different from their own, and able to adjust their approach to situations depending on the unique factors in each situation,” Der Shaw wrote.

15. Digital Court Reporting Offers Hope for Solving Stenographer Shortage (IT, June)

The switch to a hybrid approach to address the statewide shortage of court reporters was the subject of this feature.

A committee appointed by then-Director of State Courts, the Hon. Randy Koschnick, issued a report in 2023 recommending that courts move to using digital court reporters.

Unlike stenographic court reporters, digital court reporters make transcripts using a QWERTY keyboard while listening to recordings made on a digital audio recorder (DAR).

The use of a regular keyboard obviates the need for special training, opening the field of court reporting to more people.

Using a DAR also allows a court reporter to work in a different location than the court proceeding he or she is recording, as long as he or she is reporting from a court facility.

16. Wisconsin Legal Trends 2023 (WL, February)

Post-pandemic issues dominated the list of trends discussed in this article, compiled by Forward.

Britt Frank, marketing director at Gimbel Reilly Guerin & Brown LLP in Milwaukee, said that personal touches are one thing that can set a law practice apart.

“Our firm is a real place with real people, and I want everyone to see that,” Frank said. “It’s what makes us relatable and ties us to the community. We have advanced strategies and a lot of experience [and we have] a fun side.”

Lori Dorn, director of administration at Stafford Rosenbaum LLP in Madison, said that hybrid work arrangements are here to stay.

“The goal is to balance employees’ desire for flexibility with preserving firm culture,” Dorn said. “Office managers recognize having people work in the office at least two or three days per week helps maintain the firm’s culture.

17. A Practical Guide to Trauma-informed Lawyering (WL, July)

According to Kimberly A. Hardtke, effectively working with crime victims is a necessary skill for prosecutors and other attorneys who work with clients and witnesses.

Hardtke, the regional violence against women resource prosecutor in Brown County, wrote that attorneys should learn to recognize the signs of trauma in clients and witnesses, including depression, alcohol and drug use, and eating disorders.

“In practice, this means that attorneys might notice that a victim abruptly cancels or is a “no show” for scheduled phone calls, meetings, or court hearings,” Hardtke wrote. “It might seem as though the victim is unable to focus during a meeting or to retain information that is conveyed,” Hardtke wrote.

One of the most important skills of trauma-informed lawyering is listening, Hardtke said.

“Hearing what the victim says, and observing their body language and demeanor, can go a long way toward understanding what is most important to the victim at that time,” Hardtke wrote. “Being allowed to vent frustration or other emotions can help the victim process the traumatic incident and feel as though their input matters and is being taken seriously.”

18. Legal Opportunities Abound in Greater Wisconsin (WL, October)

In this article, three attorneys and a judge discussed the benefits of practicing in rural Wisconsin.

Tom Schumacher, a partner at Bakke Norman in New Richmond, said remoteness was no bar to landing complex and lucrative work.

“I’ve done between $5 million and $50 million deals with parties who are spread across the U.S. or not in the U.S. People from Madison and Milwaukee who believe that Wisconsin stops at the Dells are kind of surprised that that kind of work’s available up here,” Schumacher said.

Jackson County Circuit Court Judge Daniel Diehn said that young attorneys willing to set up practice in rural Wisconsin can write their own tickets.

“You pretty quickly develop a reputation, if you’re willing to work at it a bit,” Judge Diehn said. “It doesn’t take too long to build your own practice.”

“People are pretty friendly in a small town, they’ll help you. I think there are ways to be lucrative. The things that are present in a small town … I think you’d miss out on those if you went to a big-city law firm.”

19. A League of Her Own: Brewers Elevate Wronski to COO (IT, April)

State Bar member Marti Wronski became one of a handful of women executives among Major League Baseball’s 30 clubs when the Milwaukee Brewers named her as chief operating officer in December 2022.

Wronski, who previously served as the Brewers’ general counsel, is the only woman COO among MLB’s 30 clubs (women serve as president of business operations for the Seattle Mariners and the Miami Marlins).

She’s the highest-ranking woman executive for the Brewers since Wendy Selig-Prieb, who served as president from 1998 to 2002.

Wronski said she doesn’t dwell on the fact that she’s one of only a few baseball executives who are women. She’s never been comfortable in the spotlight.

“But at the same time, I get why it needs to be important and I’ve embraced that in the last couple of months because the goal is for that not to be as big a deal,” Wronski said.

“It should be about, ‘He or she or they is really good at what they’re doing and I think they contribute,’ and take out this whole ‘female piece’ – that ought to just be a given,” Wronski said.