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  • Circuit Split: Discharges through Groundwater Under the Clean Water Act

    The Circuit Courts of Appeal are split on whether the Clean Water Act regulates pollutants that travel through groundwater before reaching navigable waters. Ameya Gehi delves into key case law and examine both the historical and future impact of this split.

    Ameya Gehi

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    “Except as in compliance with (the Clean Water Act), the discharge of any pollutant by any person shall be unlawful.”1

    Although this definition of a Clean Water Act (CWA) violation seems broad and straightforward, it is less clear that the CWA regulates indirect discharges, like pollutants that travel through groundwater.

    Regulation of groundwater pollution is traditionally left to state government as the CWA focuses on point source pollution of the nation’s surface waters.

    The CWA Regulates Indirect Discharges: Maui

    In Hawai’i Wildlife Fund v. Maui, the Ninth Circuit held that CWA violations occur when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.”2

    In Maui, pollutants traveled through groundwater in wells before reaching the Pacific Ocean. The Ninth Circuit found a CWA violation because:

    • the pollutant itself was released from the [well], a point source,3 and
    • there was a direct connection between the [well] and the navigable water.4

    First, the court held that wells are point sources because wells are “discernible, confined, and discrete conveyances,” and are identifiable to a discrete source.5

    Ameya Gehi Ameya Gehi, University of Michigan Class of 2021, served as a summer 2019 law clerk at Midwest Environmental Advocates, Madison.

    Second, discharges into navigable waters do not have to be direct, but rather the pollution must come from a point source that has a connection to navigable waters, like the Maui wells and the Pacific Ocean. “[T]he pollution must come “from a discernible conveyance” as opposed to some unidentifiable point of discharge.”6 Congress limited the CWA’s jurisdiction to point sources to target identifiable sources of pollution.7

    To placate concerns about floodgates and expanded liability, the Ninth Circuit did not uphold the district court’s holding that CWA violations occur “when pollutants reach navigable water, regardless of how they get there.”8

    The court relied on Justice Scalia’s opinion in Rapanos v. United States,9 which held the “CWA does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”10

    Justice Scalia also noted that “the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates [the CWA], even if the pollutants discharged from a point source do not emit directly into covered waters, but pass through conveyances in between.”11

    Rapanos was a plurality opinion, which raises concerns about its precedential authority. However, “no Justice disagreed with the plurality opinion that the CWA holds liable those who discharge a pollutant from a defined point source to the ocean.”12

    Affirming Maui: Upstate Forever

    In Upstate Forever v. Kinder Morgan Energy Partners, the Fourth Circuit held that the CWA regulates pollutants that travel through groundwater before reaching navigable waters if a “direct hydrological connection between groundwater and navigable waters” exists.13

    Similar to Maui, the court in Upstate Forever relied on Rapanos to hold that “the CWA's definition of a discharge of a pollutant does not require a discharge directly to navigable waters, neither does [the CWA] require a discharge directly from a point source.14 Furthermore, the CWA’s text omits “direct” to qualify “the discharge of any pollutant.”15

    Moreover, the court sought to prevent loop-holing. The CWA’s purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”16 Not affirming Maui would undermine the CWA’s purpose by allowing polluters to escape CWA liability by routing their discharges so that they travel through groundwater before reaching navigable waters.

    Judge Floyd dissented and would have held there was no CWA violation because there was no ongoing addition of pollutants from a point source into navigable waters. Instead, “migration of pollutants through the natural movements of groundwater amounts to nonpoint source pollution,” which the CWA does not regulate.17

    Circuit Split: Kentucky Waterways

    The Sixth Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Company disagreed with the Ninth and Fourth Circuits.18 The court held that, for CWA violations,

    1) “the pollutant must make its way to a navigable water;"
    2) “by virtue of a point-source conveyance.”19

    In Kentucky Waterways, arsenic pollutants from coal ash ponds leached into groundwater before reaching navigable waters.

    There was no CWA violation because first, pollutants must directly come from point sources, rejecting the direct connection theory. The court relied on the CWA’s definition of effluent limitations: “discharge[s] from point sources into navigable waters.”20 The court reasoned that “[t]he term ‘into’ indicates directness … refer[ing] to a point of entry.”21 “[F]or a point source to discharge into navigable waters, it must dump directly into those navigable waters – the phrase ‘into’ leaves no room for intermediary mediums to carry the pollutants.”22

    Second, the court held that groundwater was a nonpoint source because it is a “diffuse medium,” not confined, discrete, or discernible.23

    Third, the court interpreted Rapanos to hold that “the absence of the word ‘directly’ from [CWA] … explain[ed] that pollutants which travel through multiple point sources before discharging into navigable waters are still covered by the CWA.”24 Rapanos did not concern pollutants that travel through nonpoint source intermediaries.

    For three main reasons, Judge Clay dissented in part and would have held that “the CWA prohibits all pollution that reaches navigable waters ‘by means of ground water with a direct hydrological connection to such navigable waters.’”25

    First, the majority mistakenly limited the CWA’s jurisdiction to “effluent limitations” because the CWA’s plain language shows that “Congress thus authorized citizen suits to prevent the “addition of any pollutant to navigable waters from any point source.”26 The case involved a citizen suit for violations of “effluent standard or limitation … a term of art [that] is wholly distinct from the term ‘effluent limitation.’”27

    Also, Judge Clay disagreed with the majority’s interpretation of ‘into’ to qualify discharges as direct discharges because “Congress did not hide a massive regulatory loophole in its use of the word ‘into.’”28 Like Upstate Forever, he sought to prevent loop-holing because “[b]ased on the majority's logic, polluters are free to add pollutants to navigable waters so long as the pollutants travel through any kind of intermediate medium.”29

    Second, Judge Clay disagreed with the majority’s holding that ash ponds are not point sources. The CWA lists ditches, wells, containers, and vessels in the “point source” definition. Employing ejusdem generis, “[t]he common denominator between wells, containers, ditches, and vessels is that each is a man-made, defined area where liquid collects … [which includes] man-made coal ash ponds. The interpretation that ‘a container can be a point source only if it is in the act of conveying something’ … ignor[es] that the statutory definition includes ‘any ... container ... from which pollutants are or may be discharged.’”30 This raises another issue: whether a point source can be stationery or must be in the act of conveyance.

    Third, Judge Clay disagreed with the majority’s interpretation of Rapanos because “the legal issue is the same: whether the CWA applies to pollution that travels from a point source to navigable waters through a complex pathway,” to which Rapanos answered yes.31 He noted that Rapanos favorably cited a case that held the CWA regulates pollution that traveled across fields before reaching navigable waters.

    Seventh Circuit Analysis

    The Seventh Circuit held in 1994 that the CWA does not regulate groundwater discharges that reach jurisdictional waters: “Neither the Clean Water Act nor the EPA's definition asserts authority over ground waters, just because these may be hydrologically connected with surface waters.”32

    A Wisconsin Court of Appeals explicitly upheld Oconomowoc in Maple Leaf Farms v. State Department of Natural Resources.33 The Central District of Illinois, which sits in the Seventh Circuit, more recently applied Oconomowoc in 2018 to hold that the CWA does not regulate groundwater discharges into navigable waters.34

    Looking Forward

    Without clear redress from the CWA to address groundwater pollution issues, individuals and groups will continue to pursue other legal avenues to potential relief.

    For example, the pollution at issue in Kentucky Waterways was coal combustion residuals (CCRs), which is a contaminant regulated by the Resource Conservation and Recovery Act (RCRA). This act exempts pollution that the CWA regulates. The Sixth Circuit might have been comfortable holding that the CWA did not regulate coal ash pollution because the RCRA regulated it.

    Nevertheless, Judge Clay’s dissent from Kentucky Waterways noted that the RCRA and CWA simultaneously regulate CCRs, stating that “RCRA regulates the way polluters store CCR, and the CWA kicks in the moment CCR enters a navigable waterway.”35

    More to Come

    In the meantime, decisions await from the U.S. Supreme Court, which granted Maui’s petition for certiorari on whether the CWA regulates pollutants that travel through groundwater before reaching navigable waters.

    Oral arguments will take place Nov. 6, 2019. It remains to be seen whether the Supreme Court will definitively resolve this circuit court split, and settle longstanding debate over CWA liability for groundwater pollution.


    1 33 U.S.C. § 1311(a).

    2 886 F.3d 737 at 749 (9th Cir. 2018)

    3 Id. at 746.

    4 Id. at 749.

    5 33 U.S.C. § 1363(14).

    6 Maui, 886 F.3d at 746 (citations omitted).

    7See U.S. v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993).

    8 Maui, 886 F.3d at 749 (citations omitted).

    9 547 U.S. 715, 126 S. Ct. 2208 (2006).

    10 Maui, 886 F.3d. at 748, quoting Rapanos, 547 U.S. at 743.

    11 Rapanos, 547 U.S. at 743.

    12 Maui, 886 F.3d at 748.

    13 887 F.3d 637, 651 (4th Cir. 2018).

    14 Upstate Forever, 887 F.3d at 650 (internal citations omitted).

    15 Id. at 651.

    16 33 U.S.C. § 1251(a).

    17 Upstate Forever, 887 F.3d at 662.

    18 Kentucky Waterways Alliance v. Kentucky Utilities Company, 905 F.3d 925 (6th Cir. 2018).

    19 Id. at 934.

    20 Id.

    21 Id.

    22 Id.

    23 Id. at 933.

    24 Id. at 936.

    25 Id. at 947.

    26 Id. at 940.

    27 Id. at 943.

    28 Id.

    29 Id. at 942.

    30 Id. at 942, note 2.

    31 Id. at 944.

    32 Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).

    33 2001 WI App. 170, 247 Wis. 2d. 96, 633 N.W.2d 720.

    34 Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 350 F. Supp. 3d 697, 705 (C.D. Ill. 2018).

    35 Kentucky Waterways, 905 F.3d at 945.


  • Post-filing Debts in Divorce: When Are They Divisible Marital Debt?

    When should post-filing debts be considered when establishing a balancing payment in divorce? David Kowalski discusses issues raised by a recent case.

    David S. Kowalski

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    Most temporary orders in divorce include a clause that debts incurred by a spouse after the filing are assigned to that spouse. The question, however, is not which spouse ultimately pays the debt but whether post-filing debts are considered when establishing a balancing payment.

    David Kowalski com david kowalskifamilylaw David Kowalski, Marquette 2007, is the founder of Kowalski Family Law LLC in Madison, where he concentrates his practice in family law.

    Gildersleeve v. Gildersleeve

    A recent case addressed this issue. In Gildersleeve v. Gildersleeve,1 the parties had such a temporary order, and the husband incurred two debts totaling about $45,000 afterward.

    There was no evidence of the purpose of these loans. The trial judge assigned the debts to husband, and included them in the calculation of the divisible estate. The Court of Appeals reversed, because the trial judge did not find when and for what purpose the husband incurred the debts before assigning them.

    The court’s reasoning is worth quoting:

    The issue is not merely whether [husband] failed to timely disclose these debts, but rather when and for what purpose [he] incurred these debts. If [he] incurred the debts after the temporary order was issued for an improper purpose—and [he] points to no evidence in the record that suggests otherwise—they were not properly included in the circuit court’s property division because they should have been [husband’]s sole responsibility, per the temporary order.2

    In two footnotes, the court added:

    We also note that, were we to accept his position, the practical effect would be to make a temporary order’s prohibition on parties incurring debt during the pendency of a divorce action meaningless … the purpose for which they were incurred is also important. For instance, if [husband] incurred these debts after the temporary order was issued for purely personal reasons (such as taking a vacation) the debts would be his sole responsibility. However, if he incurred the debts to pay a marital debt (such as a joint tax liability), then they would be properly considered in the property division.3

    This is rather extraordinary language, since no case law is cited for this sweeping ruling.

    It also may be inconsistent with statutory and case law. Per Wis. Stat. section 767. 61, all property and debt “subject to division includes all property of the parties acquired before or during the marriage, unless specifically exempted by statute” as gift or inheritance. … [A]ny language … suggesting that circuit courts have discretion to exempt property or debt from division upon divorce is both erroneous and non-binding.”4

    Waste of Assets

    Perhaps the Court of Appeals in Gildersleeve intended that post-filing debt incurred for an “improper purpose” should be assigned to only one spouse, under the theory of marital waste. Even if that were the intent, however, the trial court cannot ignore the debt. Instead, waste of assets can be considered as a “negative contribution” to marriage, as a factor to deviate from the presumption of equal property division.5

    Such debts cannot be ignored, or assigned outside of the property division, as the Gildersleeve decision seems to suggest, as one would do with a gifted asset.

    A New Standard?

    It is unclear if the court is suggesting a new standard for considering post-filing debts. Although Gildersleeve is unpublished, it can be used as persuasive authority. Therefore, it does not override Derr, etc., but there is certainly the opportunity for confusion.


    1 19 WI APP 21.

    2 Id.at ¶ 30.

    3 Id.at ¶ 30, fn. 5 and 6.

    4 Derr v. Derr, 280 Wis. 2d 681, 716 (Ct. App. 2005). 

    5 Anstutz v. Anstutz, 110 Wis. 2d 10 (1982).

  • Law in Flux: Uncertainty a Theme at Health, Labor, and Employment Law Institute

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    Houston attorney Phyllis Frye, the first (open) transgender judge in America, was the keynote speaker at the Health, Labor, and Employment Law Institute.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    Aug. 16, 2019 – From government regulation to litigation and legislation, from social policy to cultural competency, a major theme of this year’s Health, Labor, and Employment Law (HLE) Institute was the uncertainty of change and future trends.

    Approximately 200 attended this year’s two-day (Aug. 16-17) HLE Institute in Wisconsin Dells, and many health, labor, and employment law attorneys who spoke on a wide range of topics had similar advice: keep a close eye on the legal developments.

    Houston attorney Phyllis Frye, the first (open) transgender judge in America, was the keynote speaker at the HLE event. Known as the “grandmother of the transgender rights movement,” Frye came out as a transgender women in the 1970s.

    With a soft, Texas accent, Frye told her gender transition story and had a message to the many lawyers in attendance: speak up when you hear someone say something derogatory, even if it doesn’t apply to your religion, race, ethnicity, or gender.

    Don’t let it go because “you can’t do that anymore,” Frye said. “You’ve got to say something,” even if it’s a single word or gesture to signal your disapproval.

    Learn more about Frye’s transition story, and her decades-long struggle to attain equal rights for herself and the LGBTQ community, in this recent article in InsideTrack.   

    This remainder of this article highlights some tips and trends discussed at this year’s HLE Institute, a State Bar of Wisconsin PINNACLE® event held under the guidance of the HLE Institute Planning Committee and with the help of various co-sponsors.

    Trends in Health Care Delivery

    Health care is a consistent source of discussion in the legal, political, and innovation worlds. That’s why David Cade, an attorney and the CEO of the American Health Lawyers Association (AHLA), always has something new to say at the HLE Institute.


    Attorney David Cade, CEO of the American Health Lawyers Association, gave an annual health law update, from a national perspective.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    This year, Cade focused on data and technology in the healthcare world, and how those things will continue to impact the work of lawyers in the health care space. He also provided an update on the Affordable Care Act (ACA), still the subject of litigation.

    “One of the trends I highlighted was data and data breaches,” said Cade, a former deputy general counsel at the U.S. Department of Health and Human Services.

    “Data is here. We are collecting more, using it more, and there’s value in improving health care delivery through the proper use of data. Along with that benefit comes the curse of protecting it. As important it is to protect the data, we can’t lock it down.”

    Cade says lawyers can assist health care clients through training and education, and implementing up-to-date systems and processes to mitigate data breaches that can cost millions of dollars to fix. Cade also discussed technology in health care today.

    “It’s exploding,” he said. “We are moving farther and faster than I think anybody contemplated 10, 20, and 30 years ago in the area of technology. He said technology is allowing clinicians to reach remote areas, which provides expanded and faster care.

    “Artificial intelligence is the next technology wave,” said Cade, who noted the artificial intelligence (AI) won’t replace health care providers or lawyers. It will just allow them to be more efficient in what they do, and to create more opportunities upstream.

    Bullying in the Workplace

    Bullying isn’t just a problem in schools. Bullying in the workplace continues to create issues for employers and the employees affected by it, and lawyers are integral in helping to identify, investigate, and prevent workplace bullying and harassment.


    A Packed house for an opening plenary on bullying and harassment in the workplace, presented by attorneys Lisa Bergersen and Claire Hartley.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    Lisa Bergersen, of counsel at Buelow Vetter Buikema Olson & Vliet LLC in Waukesha and a former human resources director, said “bullying is unbelievably prevalent.”

    “Unlawful harassment is more measured because of administrative charges and litigation, so we have a pretty good sense of it,” Bergersen said.

    “But with bullying, we don’t have those kinds of measurements. We have to rely on what’s reported anecdotally. I think it’s probably more prevalent than we actually know.”

    Bergersen said there are preventative measures that lawyers can help employers implement. “But the end of the day, it’s about leaders and their commitment to the culture and the workplace, and how people treat each other,” she said.

    Lawyers can help leaders understand the importance of that commitment in providing advice, Bergersen noted. But when complaints of bullying do arise, lawyers must also be prepared to investigate the circumstances and come to a conclusion.

    Claire Hartley, a shareholder at Buelow Vetter and a former prosecutor, discussed techniques that lawyers can use to collect information in an investigation of bullying or harassment, including interviews with witnesses, the complainant, and the accused.

    Arrest and Conviction Record Discrimination

    Wisconsin’s arrest and conviction law governs what employers can and cannot do with respect to employment decisions, and define the rights of potential and current employees previously arrested or convicted of a crime.

    “Very generally, Wisconsin prohibits discrimination in employment on the basis of an arrest or conviction record, unless that arrest or conviction record is substantially related to the job that they are applying for, or the job that they hold if already employed,” said Warren Buliox, an employment lawyer at MWH Law Group LLP in Milwaukee.

    Buliox dove into the details of what it means for a conviction to be “substantially related” to the job, such that an employer could legally deny or terminate employment.


    Attorney Jared Prado, a police officer with the City of Madison, led an interactive examination of implicit bias, cultural competency, and the role that legal professionals can play in addressing systemic bias.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    Co-presenter Colin Good of Hawks Quindel S.C. in Madison, who represents employees, discussed how incarceration rates impact job prospects upon release, especially for persons of color, and how to protect rights against discrimination.

    “When I’m counseling someone who is applying for a job, we want to ensure they are being truthful in their application, including any pertinent arrests or convictions, and that they are taking contemporaneous notes as to who the interviewers are,” he said.

    In such cases where an applicant is qualified for a job and the arrest or conviction is not substantially related to the job, “oftentimes discrimination has occurred,” Good noted.

    Independent Contractors and Joint Employment

    In the growing “gig” economy, determining who is an employee or an independent contractor is no easy task. In addition, other employment arrangements, such as joint employment – one company provides staffing for another – are keeping lawyers busy.

    Caitlin Madden of Hawks Quindel S.C. in Madison discussed legal developments in the area of independent contractors. She noted there are different tests, under state and federal law, to determine how a worker should be classified, and they are changing.


    Attorneys Katelynn Williams (left) and Caitlin Madden discussed legal developments in the area of independent contractors and joint employment in the gig economy.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    “The gig economy and the types of employment that people are seeking out today is leading to a lot of questions,” Madden said.

    “For example, whether someone driving for a ride-sharing service is controlled sufficiently by that company to be considered an employee of the company.”

    Madden also noted the influx of job-sharing applications, such as TaskRabbit, which connects people with work in their own communities. “There’s a lot of questions as to who employs that person, which has implications … under a litany of laws,” she said.

    Katelynn Williams of Foley & Lardner in Madison joined Madden to speak on joint employment issues. These arrangements generally arise with a staffing agency that pays employees, but the employee is working offsite, say, for a manufacturing plant.

    “Both the staffing agency and the manufacturing plant could be considered to jointly employ that single individual,” Williams said. She said government agencies and courts use numerous different tests under different circumstances, but the common theme is the employer’s level of control over the daily activities of an individual worker.

    “Attorneys should be on the lookout for a lot of changes in this area,” Williams said. “Both the Department of Labor and the National Labor Relations Board currently have proposed rules out there. That will have a big ripple effect when those come out.”

    Look for Webcast Replays of the 2019 HLE Institute

    The above tips and trends only scratch the surface of the information that attendees learned at this year’s HLE Institute. But don’t worry. Selected sessions were recorded and will be replayed as webcasts Sept. 19-20 and October 15-16.

    Did you attend the event but miss a recorded session at the HLE Institute? Registered attendees have free access to the webcasts in September and October.

    Register for the HLE webcasts at the WisBar Marketplace.


    HLE Institute Planning Committee

    Doris E. Brosnan
    von Briesen & Roper, S.C.

    Carmen N. Decot
    Foley & Lardner LLP

    Daniel J. Finerty
    Lindner & Marsack, S.C.

    Sara J. Geenen
    The Previant Law Firm, S.C.

    Colin B. Good
    Hawks Quindel, S.C.

    Marybeth Herbst-Flagstad
    Associated Benefits and Health Risk Consulting

    Larry Johnson
    Hawks Quindel, S.C.

    Julie A. Lewis
    Lewis Law Office LLC


    Sarah J. Murphy
    Ascension Health

    Tom G. O'Day
    Godfrey & Kahn, S.C.

    Erica N. Reib
    O'Neil, Cannon, Hollman, DeJong & Laing, S.C.

    Leah J. Ruedinger

    Thomas N. Shorter
    Godfrey & Kahn, S.C.

    Jill Hamill Sopha
    Sopha Mediation LLC

    State Bar Staff:
    Erin V. Everett

    PINNACLE© Seminars Division


    HLE Sponsors and Exhibitors

    Godfrey & Kahn, S.C. (sponsor)

    Hall, Render, Killian, Health & Lyman (sponsor)

    Hawks Quindel S.C. (sponsor)

    Lindner & Marsack (sponsor)


    Professional Insurance Programs (exhibitor)

    Von Briesen & Roper S.C. (sponsor)

    Wipfli LLP (exhibitor)

  • WisBar's New Marketplace: 3 Tips to Find What You Need

    The new Marketplace – launched Aug. 20 – now has an easier, more intuitive shopping experience, similar to what you’ll find on other e-commerce sites.
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    unwrapping marketplace

    Aug. 21, 2019 – WisBar’s Marketplace not only has a new look, it’ll help you find what you’re looking for.

    WisBar’s Marketplace is your “one-stop shop” for finding State Bar of Wisconsin products and events, including PINNACLE® CLE programs, books and Books UnBound®, online forms, and State Bar CLE programs.

    With the new Marketplace, you’ll find:

    • an intuitive, mobile-friendly interface

    • improved and intuitive keyword searching, filtering, and navigation

    • more flexible registration options, including the ability to register multiple people for events

    • a clearer, more detailed registration process

    • product reviews and ratings

    • a way to opt in or out of auto-supplementation when purchasing books

    • ability to use multiple discount codes on different products in a single purchase

    As with other popular e-commerce sites, use search to find a general listing of available State Bar products, PINNACLE seminars, or other events. Here are a few tips to help you narrow down your results to find what you need.

    Tip #1: Start with a Search

    Know exactly what you’re searching for or want to see what's available on a given topic? Use a detailed keyword search to pull up your product or event.

    After a search, you’ll find thumbnail images of the products and events. To see detailed descriptions click on the thumbnail images. In the example below is a search for the terms "family law":

    marketplace search results

    The search yields 48 results that include nine books, 33 CLE seminars, a law office video, two online forms, and three publications. 

    Tip #2: Use Filters Effectively

    Want to narrow things down? Use the filters, a powerful tool to help you modify your results toward what you are seeking. Each time you add a filter, the list of results will be shorter. Be sure to give the filter time to display the new results.

    In the example below of the search for the words "family law," it is possible to narrow the results by clicking on the filters on the left. You can choose to include only books, CLE seminars, online forms, and/or other practice areas:

    marketplace filters

    Tip #3: Explore All the Menus

    You can use the new menu system to easily browse the menus: CLE Seminars, Books and Forms, Practice Area, Practice Management, and Browse All. Take a moment to become acquainted with the new system.

    Sort by 37 separate topics and practice areas like family law and criminal law, legal research and writing, attorney regulation, online forms, and more.

    In addition, you can find out what CLE seminars are coming up, including all live and webcast seminar dates, all on one page. In the example below, clicking on the "Practice Areas" menu opens a list from business law to real estate to "See All:"

    marketplace menu

    New Interface, Familiar Process

    When you’re ready to purchase, you’ll find an easier registration process. Be sure to log in to ensure all your applicable member discounts are reflected in your order. Once you log in, you will see the price information for the product, service, or event.

    For your protection, Marketplace does not store credit card information, and the new Marketplace continues to meet industry e-commerce security standards. It also meets or exceeds all payment card industry compliance standards.

    Where to Find Help with WisBar Marketplace

    The State Bar's Customer Service team will help with your orders or answer your questions from 8:10 a.m. through 5 p.m. Central Time. To contact them, call (608) 257-3838 or toll-free at (800) 728-7788, or feel free to send an email to service@wisbar.org.


  • BBE Proposes Changes to Bar Applicants’ Character and Fitness Inquiries and Requirements to Reactivate Law License to Active Status

    The Board of Bar Examiners (BBE) proposes two changes to its appendices. The first involves amending BA 6.02, which identifies those matters into which the BBE may further inquire before deciding whether an applicant to the bar possesses the necessary character and fitness to practice law. The second involves changes to CLE 3.015 regarding requirements to reactivate licensure to active status.
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    The Board of Bar Examiners (BBE) proposes two changes to its appendices. The first involves amending BA 6.02, which identifies those matters into which the BBE may further inquire before deciding whether an applicant to the bar possesses the necessary character and fitness to practice law. The second involves changes to CLE 3.015 regarding requirements to reactivate licensure to active status.

    The BBE is an office of the Wisconsin Supreme Court, as is the Office of Lawyer Regulation (OLR). According to the BBE website, lawyers seeking to practice law in Wisconsin must go through the BBE, which evaluates the skills, character, and fitness of lawyers and also writes and grades the Wisconsin Bar Examination.

    In addition to identifying people who should, and should not, be granted Wisconsin law licenses, the BBE helps protect consumers by monitoring lawyers’ compliance with rules for continuing legal education (CLE). The supreme court requires the BBE to suspend a lawyer’s license if the lawyer does not comply with CLE requirements.

    Submit Comments by Sept. 9, 2019

    Please submit comments regarding these proposed changes to the Board of Bar Examiners at gov bbe wicourts wicourts bbe gov on or before Sept. 9, 2019. Comments received will be considered at the next scheduled board meeting. The proposed changes will take effect Dec. 1, 2019.

    Proposed Change to BA 6.02

    In 2018, the BBE conducted a comprehensive review of its rules and procedures to determine its compliance with the Americans with Disabilities Act (ADA). To comply with the ADA, the BBE proposes amending BA 6.02 to include language that allows for further inquiry into an applicant’s conduct that is due to a mental or emotional impairment, or to drug or alcohol dependency. The current provision does not contain a specific reference to conduct as it relates to mental or emotional impairments, or to drug or alcohol dependency. This change is intended to limit inquiries into the problematic conduct rather than into the impairment or dependency itself.

    The proposed change is as follows:

    BA 6.02 Relevant Conduct or Condition. The revelation or discovery of any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law:

    (a) Unlawful conduct

    (b) Academic misconduct

    (c) False statements by the applicant, including concealment or nondisclosure

    (d) Acts involving dishonesty or misrepresentation

    (e) Abuse of legal process

    (f) Neglect of financial responsibilities

    (g) Neglect of professional obligations

    (h) Violation of an order of a court

    (i) Evidence of conduct due to mental or emotional impairments substantial enough to affect the applicant’s ability to practice law

    (j) Evidence of conduct due to drug or alcohol dependency

    (k) Denial of admission to the bar in another jurisdiction on character and fitness grounds

    (l) Disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction

    Proposed Change to CLE 3.015

    CLE 3.015 includes the requirements that are necessary to reactivate a law license to active status. These changes conform to existing practice and are intended to help lawyers better understand what CLE requirements are required to become reactivated. Only approved CLE activities that were completed during or after the last reporting period may be used to satisfy the 30-hour requirement. And only CLE activities that were completed during or after the last two reporting periods may be used to satisfy the 60-hour requirement. These requirements are no greater than they would have been if the lawyer had not been in inactive status or had not voluntarily resigned from the State Bar.

    The proposed change is as follows:

    CLE 3.015 (1) Lawyers who have been in inactive status for less than 2 years or have been voluntarily resigned from the State Bar for less than 2 years and who have not complied with the last reporting period, must complete 30 hours of CLE (including 3 ethics hours) prior to resuming active status. Only approved CLE activities that were completed during or after the last reporting period may be used to satisfy the 30 hour requirement.

    (2) Lawyers who have been in inactive status for more than 2 years or have been voluntarily resigned from the State Bar for more than 2 years and who have not complied with the last two reporting periods, must complete 60 hours of CLE (including 3 ethics hours) prior to resuming active status. Only approved CLE activities that were completed during or after the last two reporting periods may be used to satisfy the 60 hour requirement.

    (3) Except as found in SCR 31.05 (5) (d) and CLE 7.005, Llawyers may satisfy the requirements of the above subsections if they demonstrate to the board that, during the entire time they were in inactive status, (i) they were admitted to the practice of law in another jurisdiction that had mandatory continuing legal education requirements, and (ii) they were current in meeting those requirements.

    (4) Lawyers who resume active status must also satisfy the requirements of SCR 31.02 for the reporting period in which they are reactivated.

    (5) CLE requirements under this section shall not be greater than they would have been if the lawyer had not been in inactive status or had not been voluntarily resigned from the State Bar.

  • Ethical Dilemma:
    Office Clean Up: Considerations in Closed Client Files

    File cleanup: What do you need to know in storing and destroying old files from closed client cases? How long do you have to wait before destroying closed client files? And do you need permission of the former client before destroying them?

    Timothy J. Pierce

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    selecting file folder

    Aug. 21, 2019 – It may not be straightforward to do some office cleaning on your closed client files. Just how long do you have to wait before destroying old files? Should you destroy them at all? When do you need to notify the client?


    I was hired out of law school a few years ago to work for an older lawyer, with the idea that the older lawyer would retire and I would take over the practice. My boss is now getting ready to retire, and as part of the transition, I would like to do something about the firm’s old files. There are more than 40 years of closed files, and my boss is worried that it is improper to destroy the files without first obtaining the consent of the former clients, which would be a monumental task.

    Do I need the permission of my firm’s former clients before destroying their old files?


    A law firm’s responsibilities with respect to closed client files was recently addressed in Wisconsin Ethics Opinion EF-17-01. That opinion withdrew some older, outdated ethics opinions addressing file retention responsibilities. One of those older opinions was E-98-1, and while EF-17-01 agreed in many respects with the older opinion, it differed in one important way:

    While Wisconsin Ethics Opinion E-98-1 recognized that maintaining former clients’ files forever was not practicable and that lawyers should not be burdened by the attendant economic costs, it also recognized that certain safeguards should be followed before a file is destroyed. While we agree with most of the safeguards recognized in E-98-1, we do not agree with all of them. One of the safeguards with which we disagree required that “[a]bsent an express agreement with the client, the lawyer should at a minimum try to reach the client by mail at the client's last known address, should advise the client of the intent to destroy the file absent contrary client instruction, and should wait a suitable period of time (perhaps six months) before taking action to destroy the files.” Although some practitioners may choose to follow this or a similar practice, such a requirement, regardless of the age of the file or the type of the matter, is not required by the Rules of Professional Conduct, nor by any Wisconsin case and can be unduly burdensome.

    (footnote omitted)

    Tim Pierceorg tpierce wisbar Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by org tpierce wisbar email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    As the opinion notes, there has never been a requirement in the disciplinary rules that former clients be notified before old files are destroyed, and there is no instance of a Wisconsin lawyer being disciplined for failing to notify former clients before securely disposing of old files.

    That said, lawyers do have responsibilities with respect to closed files, which are set forth in the following guidelines from EF-17-01:

    1. The lawyer must preserve the file for a length of time sufficient to protect the client’s reasonably foreseeable interests. As discussed above, this should normally be a minimum of six years.

    2. The lawyer has specific responsibility to hold client property in trust under SCR 20:1.15, and important documents or other materials given to the lawyer by the client should not be destroyed without consent of the client. The lawyer must be satisfied that the files have been adequately reviewed or that the firm’s established procedures give reasonable assurance that the file does not contain client property. To do otherwise, such as a spot check, would run the risk that client property or original documents would be destroyed. Client property or original documents such as wills1 or settlement agreements ordinarily should not be destroyed.

    3. Lawyers should review their firm’s policies and ensure that the firm’s engagement letters and closing letters contain a statement informing the client of the right to the file and the firm’s file retention policy. While this is not explicitly required by the Rules, it is an important and relatively easy way to protect the client’s interests upon termination of the representation.2

    4. Likewise, the lawyer must take reasonable measures to ensure that the method by which closed client files are stored, whether the files are in physical or electronic format, protects the confidentiality of those files.

    5. Lawyers must take reasonable steps to ensure that closed client files are destroyed in a manner that preserves the confidentiality of the information contained in the files.3 This applies to files stored both physically and in electronic format. Normally, the retention of a professional shredding service that gives contractual promises of confidentiality will suffice for the destruction of physical files. With respect to electronic files, the lawyer must take steps to ensure that any information protected by SCR 20:1.6 is no longer retrievable from any hardware, software, or device that is no longer in the lawyer’s control.

    6. The lawyer should keep a record or index of files that have been destroyed for a reasonable period of time.4

      Lawyers are reminded that they must maintain records of trust account funds and property for at least six years after the termination of the representation.5

    The opinion thus provides guidelines for the safe retention and eventual destruction of closed client files.

    When confronted with the situation in the scenario – decades of closed client files – the law firm must make reasonable efforts to ensure there are no important original documents in the files, but then may proceed with the secure destruction of files over six years old without attempting to first reach the former clients.6

    Lawyers who have questions about what constitutes a client file and when the file must be surrendered to former clients or successor counsel should consult Wisconsin Ethics Opinion EF-16-03.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    • Job Negotiations and Conflicts, July 17, 2019
      Job searches can give rise to conflicts for lawyers. Just when do lawyers have to notify clients that they are seeking a new position?

    • Guardian ad Litem Work: Analyzing Potential Conflicts, June 19, 2019
      The unique role of guardians ad litem (GAL) pose challenges in applying the Rules of Professional Conduct for Attorneys, such as determining whether GAL work may conflict with your other cases. Tim Pierce, State Bar of Wisconsin ethics counsel, provides insight into one particular case that may help.


    1 For example, Wis. Stat. section 856.05(1) states that a person having the custody of any will shall, within 30 days after he or she has knowledge of the death of the testator, file the will in the proper court or deliver it to the person named in the will to act as personal representative. If a lawyer cannot determine whether the testator has died, the lawyer must deposit the original will with the register of the probate court pursuant to Wis. Stat. section 853.09(1).

    2 Such a clause need not be lengthy, and should state the firm’s policy in plain language, such as:

    [Firm] will retain your client file for ten years from the conclusion of the matter. After ten years, your file will be destroyed, without further notice to you, in a manner which preserves the confidentiality of your information. Should you wish to receive your file, please notify [Firm] before ten years have elapsed and we will promptly provide your file.

    3 See SCR 20:1.6(d).

    4 See ABA Informal Op. 1384.

    5 SCR 20:1.15(g)(1).

    6 This assumes the law firm did not have a longer file retention policy that was conveyed to clients. If so, files should be retained for the period of time stated in the policy.

  • West's Jury Verdicts, Bench Decisions, Settlements, and Arbitration Awards

    A selection of recent Wisconsin case verdicts.
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    Aug. 21, 2019 – A selection of recent Wisconsin case verdicts are shared below. The information is provided as a service to State Bar of Wisconsin members in cooperation with Westlaw's® West's Jury Verdicts – Wisconsin Reports, a Thomson Reuters business.

    Featured Cases

    McRae v. West Bend Mutual Ins. Co. (Wis. Cir. Ct. - Waukesha County)

    Vehicle Negligence - Verdict: $137,728
    T-Bone MVA Returns $137K

    Hale v. Selective Ins. Co. (Wis. Cir. Ct. - Waukesha County)

    Premises Liability - Settlement: $75,000
    Icy Fall Claim Settles for $75K

    Zollicoffer v. Haugen (Wis. Cir. Ct. - Milwaukee County)

    Vehicle Negligence - Verdict: Defense
    Defense Verdict for Bluemound Rd. Rear-Ender

    State Bar members can:

    • Request a full case summary, free of charge
    • Submit their own case results for online publication in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Order a paid online subscription to Westlaw’s® West's Jury Verdicts – Wisconsin Reports
    • Contact West: com west.juryverdicts thomsonreuters thomsonreuters west.juryverdicts com or (800) 689-9378

    For State Bar members submitting their own results for publication, West will:

    • Send each submitter a pdf of his/her published case as it appears online in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Consider featuring the case in the State Bar’s WisBar InsideTrack publication

    © 2019 Thomson Reuters/West. All rights reserved. Users may download and print extracts of content from this Web site for their own personal and noncommercial use only. Republication or redistribution of Thomson Reuters/West content is expressly prohibited without the prior written consent of Thomson Reuters/West.

  • Keep Up to Date with Probate: Revised Transfer by Affidavit Form Now Available

    If you use Wisconsin's transfer by affidavit procedure, you can now find an updated transfer by affidavit form and more on the State Bar of Wisconsin website, thanks to the State Bar's Real Property, Probate, and Trust Law Section.
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    Aug. 21, 2019 – Thanks to the State Bar of Wisconsin Real Property, Probate, and Trust Law Section, you can now find an updated transfer by affidavit form for estates of $50,000 or less, and it’s free on WisBar.org.

    Until recently, the Wisconsin Court System’s Records Management Committee (RMC) maintained a transfer by affidavit form used to transfer property of decedents with estates of $50,000 or less. However, because the form is not directly related to a court proceeding, the RMC is no longer maintaining the form.

    transfer by affidavit form

    You can now find updated transfer by affidavit form, as well as other addendum forms, on WisBar.org.

    RPPT Section Takes Over

    The State Bar’s Real Property, Probate, and Trust Law Section (RPPT), in conjunction with the Wisconsin Land Title Association and the Wisconsin Register of Deeds Association (WRDA), recently updated the transfer by affidavit form, the affidavit of heirship addendum, the affidavit of service OR waiver of notice addendum, and instructions.  

    The updated forms allow a nominated personal representative to serve as an affiant for property other than real property. A special notice to the heirs is required when real estate is being transferred.

    Please share this information with anyone who regularly encounters the transfer by affidavit procedure.

    Newly Revised: Wisconsin Probate System: Forms and Procedures Handbook

    For additional information on updates to probate law, be sure to consult the State Bar of Wisconsin’s newly revised (in 2019) Wisconsin Probate System: Forms and Procedures Handbook.

    This year’s updates include changes to the transfer by affidavit procedure, as well as

    • the effects of the Tax Cuts and Jobs Act;

    • e-filing instructions and tips; and

    • the newly combined Termination of Decedent’s Interest form (formerly the separate Application for the Termination of Decedent’s Interest (HT-110) and Transfer on Death to Beneficiary (TOD-110)).

    How to Order

    The Wisconsin Probate System: Forms and Procedures Handbook is available both in print for $219 for members and $269 for nonmembers, and online via Books UnBound®, the State Bar’s interactive online library.

    For more information or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.

  • Jim Baxter: A 'Giant' for Lawyer Wellness and Recovery

    Milwaukee attorney Jim Baxter was well known for his compassion and dedication to helping struggling lawyers. He was recently honored for more than 30 years of work as a volunteer with the State Bar of Wisconsin Lawyers Assistance Program.

    Shannon Green

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    Jim Baxter

    Aug. 21, 2019 – Jim Baxter is “a giant for wellness, healing, and recovery among lawyers,” says Chesley Erwin, a volunteer for the State Bar of Wisconsin Lawyers Assistance Program (WisLAP).

    A volunteer in the program for more than 30 years, James “Jim” A. Baxter is recipient of the 2019 WisLAP Volunteer Award.

    “Jim spent many hours in service to his peers as a mentor, educator, and recovery advocate, said Mary Spranger, WisLAP manager.

    WisLAP provides free, confidential assistance to lawyers, judges, law students, and their families in coping with alcoholism and other addictions, depression, anxiety, and other problems related to the stress of practicing law. The award honors a lawyer or judge who has provided confidential, meaningful assistance, educational outreach, or other volunteer service through the WisLAP program.

    The 2019 WisLAP Volunteer of the Year

    Baxter, 72, a retired shareholder at Von Briesen & Roper, S.C., passed away unexpectedly on July 17, 2019, before receiving the award. He was honored with a moment of silence at the annual WisLAP training CLE on Aug. 9.

    “Jim was an integral part of the effectiveness and longevity of the program,” Spranger said.

    Last year, Baxter reached out to Spranger, asking what he could do to benefit the program. “We asked for help with outreach,” Spranger said. “Jim recently completed four presentations to county bar associations.” Three more had been scheduled at the time of his death.

    Helping Colleagues

    Through his volunteer work, many lawyers learned about where to turn when they need help. Baxter was also involved in interventions for more than 50 attorneys – a process where lawyers who are struggling receive the help, guidance, and support they need to regain control of their lives and careers.

    “When mental health and substance use problems are unresolved, lawyers struggle with functioning at home and at work,” Spranger said. An intervention involves conversations that require both skill and empathy – which Baxter provided for his colleagues.

    “Jim was always willing to meet with a lawyer in need to offer support and guidance without judgment,” Spranger said. “We will forever appreciate Jim’s many hours spent providing compassionate service to his profession.”

  • How to Make Connections to Help Your Practice

    Attending a conference is about more than simply getting CLE credits. It's about building and strengthening your connections – creating a team of fellow practitioners you can turn to when the need arises. Timothy Cody shares how expanding your network expands your business opportunities.
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    Aug. 21, 2019 – Networking is an important aspect of business development, and Appleton attorney Timothy Cody encourages lawyers to get out of the office for traditional, face-to-face networking when they can.

    Cody, an attorney at Daniels & McAvoy S.C., was looking for ways to expand his practice. He turned to local bars to meet other lawyers who could help. “Then I started attending the State Bar conferences, large and small, and attended a lot of CLEs.

    “You can do that online, back at your office, so you don’t have to travel. However, you aren’t making those connections. To me, it became very important to go and get refreshed on the law but also meet practitioners, and try to make connections.”

    Cody, a presenter on building your practice at last year’s Wisconsin Solo and Small Firm Conference says finding mentors helps lawyers learn more quickly.

    “You can always learn on your own, but that’s a lot of time and effort. As we know, time and effort is what we get paid for, and you can’t charge the client to learn,” Cody said.

    Introverted attorneys may feel less comfortable with traditional networking. “Remember, we are all nervous when making that first introduction, whether it’s online or traditional. You just say, 1-2-3, let’s go, I need to invest, I need to learn, I need to meet people.”

    Cody says there’s no limit to the opportunities derived from making meaningful connections with other lawyers. “Whether it’s just great friendships, a great mentor, a working referral relationship,” Cody said. “I’ve only been practicing in Wisconsin for two years, and I’m speaking at the [State] Bar. All kinds of things can open up.”

    Looking for a networking opportunity? Attend the 2019 Wisconsin Solo and Small Firm Conference, Oct. 24-26, at the Kalahari Resort in Wisconsin Dells.

    Learn more about the 2019 WSSFC.

  • Attracting Young Lawyers to Rural Practice: Throwing Out the Rule Book

    Attracting young lawyers to smaller Wisconsin communities continues to be an uphill struggle. But some cities, such as Wausau, are ramping up the appeal.

    Paige Resch

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    Page Resch

    Paige Resch stands under the umbrella display in downtown Wausau. As a 3L in 2016, Resch participated in the State Bar’s Greater Wisconsin Initiative Bus Tour through Northern Wisconsin, resulting in a move to Wausau to work for Wisconsin Judicare.

    Aug. 21, 2019 – After work, William Baynard is laser-focused on the circular target a few yards away, hoping to earn his team some points, but he’s not playing darts. He and several other young attorneys from the Wausau area are learning to throw axes.

    For their monthly meetings, the Young Lawyers Division (YLD) of the Marathon County Bar Association, led by President Dena Welden, tries to mix things up.

    Their meetings have included new restaurants and distilleries and informal outdoor spots, but their outing at Blades and Boards of Wausau, where individuals and groups can learn to throw hatchets in a safe environment, was definitely a first.  

    “It was way easier than I thought,” Baynard said. “I’ll probably start throwing axes on my camping trips from now on.” (Disclaimer: Blades and Boards is an indoor facility with safety instructions and safety barriers. This author does not encourage amateur axe throwing in the woods and denies any liability if you try it).

    Holding nontraditional bar meetings is one way local bars are attempting to attract young lawyers to rural areas experiencing lawyer shortages.

    This article highlights what some rural communities are doing to attract young professionals, including lawyers, to assist the local individuals and businesses in need of legal help with fewer options as more lawyers retire from practice in those areas.

    William Baynard

    William Baynard tries his hand at axe throwing at a social gathering of Marathon County Bar Association young lawyers. Baynard landed a job in Wausau after a State Bar bus tour in 2016. He is also getting to know the fly fishing areas of northern Wisconsin. “Every other day, I wake up thinking there’s no better place in the world.”

    More Than Just Bars

    Not all of the Marathon County YLD events are lumberjack-themed, but many are definitely meant to expand beyond the traditional downtown scene.

    Paige Reschcom resch_paige63093 yahoo Paige Resch, U.W. 2017, previously worked on family and consumer issues under the Elder Rights Project of Wisconsin Judicare, Wausau. As a 3L in 2016, Resch participated in the State Bar’s Greater Wisconsin Initiative Bus Tour through Northern Wisconsin.

    “I do not prioritize going to new spots in town, and having a YLD event off the beaten path helps me explore new establishments,” says Welden.

    “We are trying to stray from just the typical downtown spots. This summer, I wanted to find more active activities to do, to enjoy the few summer months a little more.”

    In the entertainment space, smaller Wisconsin communities can’t compete with the nightlife in cities like Madison or Milwaukee. But the entertainment is different. You may be more likely to find attorneys meeting up at curling or hunting clubs than at bars.

    “If you like to fish or hunt, or just enjoy the outdoors, this is the place for you,” said Fredrick Fassbender, who also attended Axe Night with the YLD.

    But this may have more to do with more affordable, alternative entertainment options in many communities, and not a lack of traditional establishments.

    In fact, Wausau’s Downtown River District has plenty of traditional options. This district was recently named a “Great American Main Street” by winning an annual contest held by the National Main Street Center.

    This contest was focused solely on the Downtown River District, whose attractions include several restaurants, art fairs, and weekly summer concerts.

    It did not include the more-active attractions to the area like skiing, independent-league baseball, various trails and parks, and even Blades and Boards, which is located south of the main downtown area.

    Related Articles

    In Need of a Rural Family Law Lawyer – and Out of LuckWisconsin Lawyer (forthcoming September 2019)

    Going Rural: Insights from Park Falls to MonroeWisconsin Lawyer (2018)

    Up North: Young Lawyers Find Their Way to WausauInsideTrack (2017)

    The Road to Rural PracticeWisconsin Lawyer (2014)

    Deborah Richter

    Deborah M. Richter, Mitchell Hamline School of Law 2017, opened her own law office in Park Falls. She says, “Once you start helping a few clients in a small town, word spreads. If you are knowledgeable, helpful, honest, and nice, it spreads faster.” Photo: Norman Tesch

    Efforts Throughout Wisconsin

    Unfortunately, attracting young professionals to smaller and rural Wisconsin communities, including young attorneys, continues to be an uphill struggle.

    “I have reached out to Lincoln County and Portage County YLDs to see if we could do more joint events. Unfortunately, both those groups have dissolved due to lack of turnout and membership,” says Welden.

    However, Wausau is just one example of several smaller Wisconsin cities that have ramped up their downtown appeal to current and potential residents.

    Like Wausau, many have garnered recent praise as both professional and social hot-spots by competing in national and statewide competitions promoting downtown developments.

    Recently, Oshkosh, Sheboygan, and Wausau were identified as top-10 metropolitan areas in the country for millennials, based on a study by reviews.org.

    These rankings were based on “unemployment rates, high immigration flows, low housing costs, and low rates of property crime.” Several other Wisconsin cities also made the Top 25 in this study of more than 300 metro areas.

    And Downtown Ripon, offering perks like the original Marcus movie theater with $5 tickets, made the Top 25 in America’s Main Street Contest 2019.

    Further North, Hayward is a repeat-finalist in the contest in part due to its events like the American Birkebeiner cross country ski race. Ashland, the Historic Mural Capital of Wisconsin nestled on the shores of Lake Superior, is also a featured city.

    Back in Wausau, Welden continues to explore new experiences for YLD members. “There is a young professional community in our area and I hope to try and join forces to do some more activities together.”

    The State Bar of Wisconsin’s ongoing Greater Wisconsin Initiative encourages attorneys to consider joining these smaller communities, including dozens of counties not mentioned in this article.

    With revitalization projects, new businesses, and national competitions, it looks like several communities are making their own efforts to entice more professionals to their cities and towns.

    Brandon Evans

    Brandon Evans’ winding career path eventually led him back to Marquette, Mich., not too far from where he grew up. He had practiced for some time in Detroit and later in Green Bay but, as he sees it, practicing in a small city in a rural area has helped him to develop a broader range of legal skills. “A small-town practice has a lot to offer as a way to train a lawyer in the practical things you need to do and to be more confident in what you do,” he says. He’s now a shareholder of a 13-attorney firm, the largest in the Upper Peninsula. Photo: Scott Dupras, The L Gallery.net

    The Greater Wisconsin Initiative: Considering a Rural Practice? Need Advice? Want to Help Fill the Justice Gap?

    The State Bar’s Greater Wisconsin Initiative encourages attorneys to consider practicing in rural communities. In prior years, the initiative sponsored a bus tour that introduced interested members to rural communities directly and networking with local lawyers, judges, and community leaders.

    The State Bar’s commitment to help ensure residents in rural parts of the state have access to justice are stronger than ever. Efforts to serve lawyers transitioning out of practice, and potential lawyers interested in transitioning to rural Wisconsin will soon have access to more resources on the State Bar website, wisbar.org. In the meantime, contact the following for assistance:

    • org kburns wisbar Kim Burns for areas in Wisconsin needing attorneys or program suggestions on serving rural parts of the state;

    • Michelle Sherbinow (Ready.Set.Practice. mentoring program) on help for young lawyers looking to expand their professional knowledge and experience;

    • org mspranger wisbar Mary Spranger (WisLAP) for health and wellness support;

    • org cshattuck wisbar Christopher Shattuck (Practice 411) for practice management and technology information;

    • org akaiser wisbar Aviva Kaiser or org tpierce wisbar Tim Pierce (Ethics Program) for help with ethical issues related to starting or transitioning a law firm;

    • org jbrown wisbar Jeff Brown (Pro Bono Program) for opportunities to help fill the justice gap in rural areas, including through Wisconsin Free Legal Answers an online resource in which qualified consumers get answers to civil legal matters;

    • Lawyer-to-Lawyer Directory to access hundreds of lawyers willing to share their career and practice knowledge with other lawyers through free, brief consultations (sign up to be part of this peer network);

    • org kwilcox wisbar Katie Wilcox (Lawyer Referral Programs) for lawyers interested in expanding their client base and Wisconsin residents who are in need of legal help. 

  • State Budget and Legislation: State Bar Makes Progress on Policy Priorities

    The finalized biennial state budget includes an increase in the hourly rate paid to private bar attorneys taking public defender cases and pay increases for state prosecutors and public defenders. Learn more about the state budget bill and other legislation.

    Joe Forward

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    Wisconsin State Capitol at sunset/sunrise

    Aug. 21, 2019 – The Wisconsin Legislature will resume full-time activities next month as the 2019-20 session continues. At the same time, the State Bar of Wisconsin will continue to press its policy goals, building on momentum from a busy budget season.

    The State Bar reports significant progress in the areas of funding of our justice system, including a long awaited increase in the hourly rate paid to private bar attorneys who take public defender cases and new assistant district attorney positions.

    “Now let’s get to work building on our successes,” said State Bar President Jill Kastner, who will be leading the charge on other State Bar policy priorities, including increased funding for civil legal services for low-income Wisconsinites and building on strategies to encourage more lawyers to practice law in rural and underserved areas of the state.

    In addition, the organization (and sections) are monitoring and taking positions on legislative proposals of interest to the State Bar’s members and the clients they serve. This article provides a high-level overview of the State Bar’s current legislative activity.

    State Budget Addresses Lawyer Compensation

    A decades-long effort has finally resulted in success for private bar attorneys taking appointments from the State Public Defender’s Assigned Counsel office.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    The 2019-21 biennial state budget increases the compensation paid to private bar attorneys who take overflow and conflict cases on appointment from the state public defender’s office, from $40 to $70 per hour.

    The $40 hourly rate has changed little since 1978, when the hourly compensation rate was set at $35 per hour. Over the decades, the State Bar has repeatedly supported an increase. The pay rate was actually reduced from $50 per hour to $40 in 1995.

    The State Bar supports a rate of compensation on par with the rate for court-appointed attorneys, a rate set by the Wisconsin Supreme Court. Last year, the supreme court increased the rate paid to court-appointed attorneys from $70 to $100 per hour.

    The State Bar has also long supported adequate compensation to attract and retain experienced and qualified attorneys that work for the state, including assistant district attorneys and assistant state public defenders. Those attorneys are government lawyers who are compensated under merit-based pay progression plans.

    The biennial 2019-21 state budget includes a one-step pay progression increase for assistant district attorneys and deputy district attorneys and increased funding for the equivalent of 65 new assistant district attorney positions.

    The budget did not include public defender staff in the stepped pay progression, which creates a gap in salary parity between public defenders and prosecutors.

    The State Bar is hopeful that the legislature and the governor will work together to address this pay issue going forward in the 2019-20 legislative session.

    The State Bar also supports adequate funding for civil legal services. Civil legal aid finding helps ensure fairness for all in the justice system, regardless of income.

    Similar to the prior budget, the 2019-21 biennial state budget allocates $1 million in federal funds under the Temporary Assistance for Needy Families (TANF) Program for civil legal services to TANF-eligible survivors of domestic violence and sexual abuse.

    The State Bar will continue the ongoing effort toward an adequately funded justice system that promotes access to justice and the retention of qualified attorneys.

    In addition, the State Bar (and its sections) are closely monitoring the development of bills that impact the legal profession, State Bar members, and the clients they serve. Below is a status brief of bills that have been introduced in the current term.

    Bills of Interest: Board of Governors’ Activity

    The State Bar of Wisconsin’s 52-member Board of Governors represent the State Bar membership in 16 districts. Board members are elected to two-year terms. The board meets five times per year and oversees policy-making and organization operations.

    The board periodically takes official policy positions on bills of interest to the legal profession, which authorizes the State Bar’s government relations team to actively engage with lawmakers and legislative staff to advance the State Bar’s position. The board supports the following bills that are pending before the Legislature.

    AB 33 – Expungement of Records of Certain Crimes. Currently, persons who commit nonviolent crimes, including some felonies, while under the age of 25 can request expungement of the criminal record at the time of sentencing.

    Under this bill, which has already passed the Assembly, the age restriction would be lifted, and individuals could petition the court for expungement of their criminal record even if they did not request expungement at the time of sentencing. If a record is expunged, it is not considered a conviction for employment purposes.

    A companion bill, SB 33, passed out of the Senate’s Committee on Judiciary and Public Safety, and is available for a Senate vote.

    AB 25 – Allowing district attorneys, deputy district attorneys, and assistant district attorneys to engage in the private practice of law for certain civil purposes. The bill would allow prosecutors to provide pro bono legal services in their communities if there are no conflicts in providing the legal services. The Assembly’s Committee on Judiciary passed the proposal 9-0 in May.

    The State Bar’s Board of Governors supports the proposal, but other groups – such as the League of Women Voters of Wisconsin and the Wisconsin Civil Justice Council Inc. – oppose the bill on grounds that it could create conflicts or the appearance of conflicts.

    AB 145 – Creation of a prosecutor board and a state prosecutors office; funding for the department of justice, assistant district attorneys, the public defender, and the courts; Public Defender Board regulation, and making an appropriation. This bill would create an independent prosecutor board to oversee and set policies for a state prosecutors’ office. It also expands the Public Defender Board’s rule-making authority with respect to private bar certification, decertification, and recertification to represent indigent clients by appointment from the State Public Defender’s Office. The bill includes other measures already addressed through the state budget process, including appropriations to pay counties for court-appointed attorneys.

    The State Bar of Wisconsin’s Strategic Priorities

    The State Bar’s strategic priorities, adopted by the State Bar’s 52-member Board of Governors, guide its policy positions and the Government Relations Program. The State Bar has five strategic priorities:

    1. Make sustainable gains to increase access to justice for all.

    2. Advance public trust and promote a high functioning justice system through our advocacy for the courts, the profession of law, and the public.

    3. Ensure commitment to diversity and inclusion, aligning with our guiding principle to optimize the potential of all State Bar members as well as the public we serve.

    4. Drive competitive advantage for State Bar members and the State Bar of Wisconsin.

    5. Maintain strong financial management and drive long-term revenue growth to support our mission.

    Bills of Interest: Section Activity

    The 16 State Bar sections participating in the State Bar’s Government Relations Program are authorized to monitor and take policy positions on bills, so long as the section’s position is not in conflict with Board of Governors position.

    Section members authorize section board members to take policy positions, and engage the State Bar’s government relations team to help advance positions.

    AB 41 – Prosecuting a person under the age of 18 with committing an act of prostitution. The State Bar’s Children and the Law Section supports this legislation, which bars prostitution charges against minors (those under age 18). The legislation recognizes the victimization of children who are sex trafficked.

    The Assembly’s Committee on Children and Families unanimously (12-0) passed the bill, the first step before a bill can be considered by the full Assembly.

    AB 47 – Guardianships of children. This bill creates a new process and standards for appointment of a guardianships for minors. The State Bar’s Children and the Law Section supports the legislation, which had a public hearing before the Assembly’s Family Law Committee last May.

    AB 58 – Service of notice of claim against state officer, employee, or agent. The bill changes the requirements for service of a notice of claim against a state officer, employee, or agent. Currently, the notice must be served on the attorney general at the state capitol by certified mail. This bill would allow personal service or service by certified mail at the capitol or in the attorney’s general’s office at the Wisconsin Department of Justice. The State Bar’s Litigation Section supports the bill, which has passed the Assembly and awaits a final floor vote in the Senate.

    AB 59 – Service of certain pleadings and other papers by electronic mail. Currently, service of pleadings and other papers must be served by traditional methods unless a responding party has agreed in writing to accept electronic service or service by some other method. This bill would allow service by email, regardless of consent. The bill passed the Assembly in June. The Senate is now considering it. The State Bar’s Litigation Section supports the bill, which passed the Assembly in June and awaits Senate floor action this fall.

    AB 95 – Modifications to legal custody or physical placement contingent upon a future event. This bill authorizes a court to approve a stipulated agreement for modifications to legal custody or physical placement of children upon the occurrence of life events of the adult parties or child, or developmental and educational needs of the child, that are reasonably certain to occur within two years of the date of the stipulation. Currently, a court cannot modify, substantially, an order for legal custody or physical placement within two years of a judgment, unless a child would be emotionally or physically harmed without a modification. The State Bar’s Family Law Section supports the bill, which received a public hearing before the Assembly’s Family Law Committee earlier this summer. The July/August Wisconsin Lawyerdiscusses this bill, as well as other proposals related to child support and placement.

    AB 100 – Judicial notice of certain court records relating to domestic violence or child abuse. The bill allows a court in a family law action to take judicial notice of court records relating to domestic violence, including battery, stalking, sexual assault, damage to property, disorderly conduct, and other specified crimes. The State Bar’s Family Law Section supports the bill. The July/August Wisconsin Lawyerdiscusses this bill, as well as other proposals related to child support and placement. The Assembly’s Committee on Judiciary unanimously supported the bill last month.

    AB 166– Presumption and conclusive determination of paternity on the basis of genetic test results and orders that may be granted on the basis of genetic test results. The bill creates a new presumption of paternity and a “new way to conclusively determine paternity under the law using genetic testing.” Additionally, “the bill allows a court that determines that a judicial determination of whether a man is the father of the child is not in the best interest of the child to dismiss the paternity action with respect to that man, regardless of whether genetic tests have already been performed or what the results of those genetic tests were.” The State Bar’s Family Law Section supports the legislation. The Assembly’s Committee on Family Law is considering the bill, while the companion bill, SB 158, is scheduled for a public hearing before the Senate’s Committee on Universities, Technical Colleges, Children and Families later this month.

    AB 201 – Creating a nonrefundable individual income tax credit for certain adoption expenses and modifying eligibility for the adoption expenses tax deduction. The bill would create a state individual income tax credit for adoption expenses for those eligible for the federal adoption expense credit. The State Bar’s Children and the Law Section supports the bill, which is pending before the Assembly’s Committee on Ways and Means.

    AB 209 – Mandatory parenting classes. This bill would require courts to order parties to attend parenting classes in actions affecting the family in which a minor child is involved or in an action to determine paternity of a child. The State Bar’s Family Law Section opposes this bill, which is pending before the Assembly’s Committee on Family Law.

    SB 98 – Modification of bail in a criminal action. The bill, introduced by the Joint Legislative Council, “requires a court to review the bail of a defendant within 72 hours of initial appearance if the defendant remains in custody as a result of his or her inability to meet the bail. Thereafter, the court must review the bail every 7 days. The bill requires the court to set forth the reasons for requiring the continuation of the bail, unless the bail is adjusted and the defendant is released. The bail review requirement only becomes effective if an amendment to Article I, section 8 (3) of the Wisconsin Constitution, the provision relating to pretrial detention, is ratified.” The bill is pending before the Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

    SB 99 – Pretrial detention. The bill, introduced by the Joint Legislative Council, would allow court commissioners to conduct pretrial detention hearings, expand the criteria for pretrial detention decisions, and make other changes with respect to pretrial detention procedures. The bill is pending Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

    SB 101 – Use of a pretrial risk assessment when setting conditions for pretrial release. The bill, introduced by the Joint Legislative Council, allows courts to consider the results of a validated pretrial assessment in imposing bail or other pretrial release conditions. It is pending Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

    Senate Joint Resolution 13– Release of a person accused of a crime prior to conviction (first consideration). The resolution, introduced by the Joint Legislative Council, is a proposed constitutional amendment to “allow the legislature to authorize circuit courts to deny release prior to conviction. It replaces all of the requirements the Wisconsin Constitution currently specifies the legislature must include in a pretrial detention law with three requirements.” Under the resolution, any law authorizing circuit courts to deny release prior to conviction must: “(1) specify the circumstances under which an accused may be denied release prior to conviction; (2) limit the period of time an accused may be denied release prior to conviction; and (3) require that the court conduct a pretrial detention hearing. The joint resolution also removes language from the Wisconsin Constitution that prohibits the legislature from enacting a law requiring courts to deny release to a defendant prior to conviction.” The State Bar’s Criminal Law Section is actively monitoring this resolution.

    Other State Bar sections participating in the Government Relations Program include: Business Law; Bankruptcy, Insolvency and Creditors’ Rights, Civil Rights and Liberties; Construction and Public Contract; Dispute Resolution; Elder Law and Special Needs; Health Law; Indian Law; Public Interest Law; Real Property, Probate and Trust Law; and Taxation Law.


    As of Aug. 12, 2019, there were 355 bills introduced in the Assembly, 343 in the Senate. Eighteen bills have been signed into law in whole or in part. Five bills were vetoed.

    The Wisconsin Legislature is not expected to come back into session until October, reserving the months of August and September for committee activity. Beyond October, the legislature has floor periods scheduled every month through April 2020, except for December.

    Have questions for the State Bar’s Government Relations Program? Contact the State Bar’s Advocacy & Access to Justice Director Lisa Roys by org lroys wisbar email or by phone at (608) 250-6128.

  • 10 Tips to Maximize a Positive Result with Mediation

    Proper preparation can help you maximize results for your clients during their mediation session. Jill Sopha shares her favorite tips for advocates in mediation.

    Jill Hamill Sopha

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    In my experience of 20-plus years as an employment attorney-advocate, three-plus years as an employment attorney-mediator, and in teaching Mediation Advocacy and Negotiation at Marquette University Law School, I’ve put together my top favorite tips to help lawyers prepare their clients for mediation.

    Here are my top 10 tips to maximize results for your clients during their mediation session:

    1) Decide the Best Time to Mediate. Consider mediation when you have enough information to adequately advise your client and, if possible, before attorneys’ fees are a significant impediment to settlement.

    2) Strategically Choose Your Mediator. In order to be effective, your mediator must be able to quickly build trust with the parties and counsel. Consider what mediator personality, experience and style will resonate with your client and the other side’s client and attorneys.

    Jill Hamill Sopha com jill sophamediation Jill Hamill Sopha, U.W. 1996, is an employment attorney mediator at Sopha Mediation LLC in Milwaukee, where she focuses her practice on workplace dispute mediation. She also teaches mediation advocacy at Marquette University Law School.

    3) Work With Your Mediator. Make sure your mediator is familiar with the key legal and factual parts of your case, any settlement discussions, and the parties (and personalities) attending. Consider sharing as much information as possible with the other side before the mediation session. In many cases, the more time the other side has to consider that there is real risk to proceeding with litigation, the better. Let the mediator know in advance any issues that may help or hinder your client’s (and the other side’s) willingness or ability to settle the dispute. 

    4) Educate Your Client. Talk to your client about the cost, risk, time, and stress associated with litigation; the factual and legal weaknesses in the case; and about how mediation is different from litigation – i.e., that in mediation, the mediator is not a decision-maker, and that the parties (and counsel) will work together to find a resolution that everyone agrees is preferable to litigation.

    5) Be Strategic With Your Negotiation. Start with a number that is aggressive but can be reasonably justified. A starting number that is viewed as highly unreasonable may discourage the other side from participating in mediation. Your starting position should also allow you to make a big enough move at the beginning so you can match or reduce the size of your moves as you proceed. Be sensitive to the “pace” of the negotiation.

    6) Use Your Mediator’s Expertise. Encourage your client to talk to the mediator. This will be their “day in court,” and in many cases, being heard is an important part of moving toward resolution. Use your mediator as a negotiation partner – ask their advice and trust their judgment. For example, let the mediator use their expertise and judgment on how to best position offers and demands. Along those lines, let the mediator be the “bad guy” (or back you up when you need to be the “bad guy”). The mediator can reinforce to your client the weaknesses or risks in their case and of proceeding to litigation.

    7) Get Creative. Generally, avoid take it or leave it offers or demands, as they are rarely well-received. Rather, if negotiations appear truly stalled, work with your mediator to jump-start negotiations – in many cases, putting something – anything – on the table can serve this purpose.

    8) Avoid Surprises. Frequently, employment matters involve much more than the legal case. If there is something you or your client will need to resolve the matter, disclose it to the mediator sooner than later (especially if it may be unexpected by the other side). Your mediator can help advise you as to when and how to raise the issue.

    9) Get Your Final Number on the Table. This is your client’s opportunity to find out their best option for settlement at this time. Each side should be sure that they did everything in their control to try to reasonably resolve the matter at the mediation session.

    10) Have Patience with the Process. The parties are at mediation because they are at an impasse, so both parties will need to change – which takes time and can be very difficult and stressful. The vast majority of cases resolve at mediation, even if the parties feel discouraged at one or more points during the day. Encourage your client to stay engaged, and not to give up!

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.

  • West's Jury Verdicts, Bench Decisions, Settlements, and Arbitration Awards

    A selection of recent Wisconsin case verdicts are shared below.
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    Aug. 7, 2019 – A selection of recent Wisconsin case verdicts are shared below. The information is provided as a service to State Bar of Wisconsin members in cooperation with Westlaw's® West's Jury Verdicts – Wisconsin Reports, a Thomson Reuters business.

    Featured Cases

    Ernst v. State Farm (Wis. Cir. Ct. - Waukesha County)

    Vehicle Negligence - Settlement: $150,000
    Vehicle Collides With Building; Injures Office Worker

    Jamerson v. Braegelman (Wis. Cir. Ct. - Dane County)

    Vehicle Negligence - Settlement: $125,000
    Verona Rd. Rear-Ender Results in $125K Settlement

    Radtke v. International Products Supply (Wis. Cir. Ct. - Milwaukee County)

    Product Liability - Settlement: $40,000
    Lack of Protective Wrapping on Window Causes Lacetration

    State Bar members can:

    • Request a full case summary, free of charge
    • Submit their own case results for online publication in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Order a paid online subscription to Westlaw’s® West's Jury Verdicts – Wisconsin Reports
    • Contact West: com west.juryverdicts thomsonreuters thomsonreuters west.juryverdicts com or (800) 689-9378

    For State Bar members submitting their own results for publication, West will:

    • Send each submitter a pdf of his/her published case as it appears online in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Consider featuring the case in the State Bar’s WisBar InsideTrack publication

    © 2019 Thomson Reuters/West. All rights reserved. Users may download and print extracts of content from this Web site for their own personal and noncommercial use only. Republication or redistribution of Thomson Reuters/West content is expressly prohibited without the prior written consent of Thomson Reuters/West.

  • Building a Solo and Small Firm Dream Team

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    Aug. 7, 2019 – Solo and small law firms may focus on several areas of law. But what if a client has questions or projects in areas outside the firm’s purview? Through networking and partnering with other firms, solo and small firms can cover all the bases.

    For instance, Ogden Glazer + Schaefer is three-attorney firm that focuses exclusively on intellectual property, food and beverage, and business law.

    “We work a lot of other firms because we are specialists, but that also means we don’t have a lot of specialties,” said Erin Ogden, co-founder of the firm. “We need to be able to work with other firms to help our clients. With that, we had to build our team of people that we knew we could call on when we had questions about things like labor law or litigation, and have them be able to call us when they had questions about trademarks.”

    In this way, the firm is able to meet the client’s needs, even if the services are performed by another firm. But how do you develop that team?

    Ogden does it by attending conferences, such as the Wisconsin Solo and Small Firm Conference (Oct. 24-26, 2019 in Wisconsin Dells). She talks to different lawyers to see if there are areas of collaboration that is mutually beneficial.

    Ogden’s firm is also very active on social media, including LinkedIn and Facebook. "We use our social media to a lot of content-driven marketing, showing both other attorneys and other clients that we know what we are talking about, that we have expertise,” she said.

    Ogden maintains a blog that she pushes out on social media, and she has been experimenting with doing short videos to help people get a feel for her personality.

    More on the Wisconsin Solo and Small Firm Conference

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    The Wisconsin Solo and Small Firm Conference (WSSFC) attracts solo and small firm lawyers from around the state to learn, network and have fun. This year, the WSSFC will be held Oct. 26-29 at the Kalahari Resort in Wisconsin Dells.

    With four tracks on substantive law, practice management, technology, and quality of life/ethics, there’s something for everyone. Check out the schedule and register now!

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