News & Pubs Archive

LGBTQ youth have unique issues that require attorneys to educate the court, particularly in family law matters. U.W. law student Renee Pasciak explains the need for this education and how to advocate for this population.

Divorce can be costly – an alternative is mediation. But what if the parties already must go through cultural mediation before a divorce? Chue Xiong discusses how to incorporate cultural mediation into your mediation practice – which may be the mosteffective way to obtain a divorce.

Individuals charged with a criminal offense are legally provided the presumption of innocence. However, those unable to post bond are subject to pretrial detention and the same treatment as those sentenced to confinement upon conviction. Nicole Muller explores the constitutional conflict between the presumption of innocence and pretrial detention in Wisconsin, and how attorneys can better advocate and protect the presumption of innocence.

A presumption against granting custody to an abusive parent can only be overcome with proof that the parent has completed treatment for batterers from a certified program or from a certified provider, the Wisconsin Court of Appeals has ruled.

A Wisconsin appellate court has ruled that a prosecutor who repeatedly argued that a victim’s testimony was “uncorroborated” violated the constitutional right of a criminal defendant who did not testify during the trial.

The state Department of Public Instruction (DPI) impermissibly inquired into religious doctrine in determining that two private schools in Washington County were affiliated with the Roman Catholic Church, a U.S. Court of Appeals has ruled.

For lawyers handling business acquisitions and divestitures, turning for help to outside professionals can lessen any issues that may arise. Eric A. Johnson discusses the types of professionals that can help lawyers smooth out complicated transactions.

A company that repossessed a car from an apartment building garage violated the Wisconsin Consumer Act (WCA), the Wisconsin Supreme Court has ruled.

The Wisconsin Supreme Court will hear oral arguments on a lawsuit filed over the decennial re-drawing of the state's congressional and legislative districts at 9 a.m. Wednesday, Jan. 19.

In Milwaukee, the state legislature granted municipal governments the right to build new land along the coastline. These projects on lakebed fill must accommodate the public. Sarah Martinez gives details about a recent CLE program that discussed issuessurrounding lakebed fill projects.

While the litigation surrounding the Occupational Safety and Health Administration's (OSHA) vaccine and testing emergency temporary standard continues, employers should nevertheless be ready to implement these standards. Janelle Schlosser discusses what employers need to know for their implementation.

Video gaming machines that allow players to preview the outcome of particular games are illegal gambling machines, the Wisconsin Court of Appeals District I has ruled.

Two retired Milwaukee police officers who were rehired by the city lost the right to begin receiving retirement benefits at age 57, the Wisconsin Court of Appeals has ruled.

Dec 28, 2021 – State law does not grant a municipality the right to file a writ of certiorari challenging a board of review’s property tax assessment, the Wisconsin Supreme Court has ruled.

Dec. 28, 2021 – The Wisconsin Court of Appeals has certified an appeal over a victims’ rights ballot measure adopted last year to the Wisconsin Supreme Court.

Dec. 28, 2021 – The decision of an administrative law judge (ALJ) that the Wisconsin Department of Natural Resources (DNR) failed to comply with state law in issuing permits for a frac sand facility was supported by substantial evidence, the Wisconsin Cou

Dec. 28, 2021 – A state appeals court has ruled that a trace amount of heroin found on a defendant provides a basis for the offense of narcotics possession, because a jury could have reasonably inferred from compelling circumstantial evidence of recent dr

A sentencing court is not bound by the mandatory minimum prison sentence if a defendant qualifies for safety-valve relief. Lee D. Schuchart discusses the provision and two recent cases that appear to disagree on whether “and” actually means “and.”

Dec. 23, 2021 – A man with a history of filing frivolous lawsuits gave up his right to sue in forma pauperis by violating the terms of a litigation bar order, the U.S. Court of Appeals for the Seventh Circuit has ruled.

Placing visible restraints on a criminal defendant absent a determination that specific circumstances related to courtroom security or escape warrant it violates the Fourteenth Amendment, the U.S. Court of Appeals for Seventh Circuit has r

Dec. 21, 2021 – Sovereign immunity does not bar a lawsuit filed by environmental groups against the Wisconsin Public Services Commission (PSC) and two of its commissioners, the U.S. Court of Appeals for Seventh Circuit has ruled.

In this article from the Marquette University Law School Faculty Blog, David Strifling discusses real-time control (RTC) or “dynamic” stormwater management systems that can help reduce the magnitude of outflows during storms and relieving other stresses on our stormwater systems.

There are many free resources available for Wisconsin attorneys – but do you know what they are and where to find them? Amanda R. Mayer talks about free tools and websites that can give your legal research a boost.

Parents with personal experience in the child welfare system can play a valuable role in many ways, including providing feedback and peer support. Heather Miller discusses how a lived experience voice is being incorporated in child welfare in Wisconsin.

The COVID-19 pandemic has impacted all aspects of business and commercial life – including leasing and subleasing office space. Joseph Mella discusses the new world of subleasing office space – and offers advice for lawyers who counsel would-be subtenants.

For nearly two years, health lawyers have been swamped with issues related to the COVID-19 pandemic. But the “new normal” means juggling those issues on top of more conventional ones. Amy Bradshaw highlights three recent non-COVID developments for her Wisconsin health law colleagues.

A medical records software company is not subject to statutory limits on fees for reproducing medical records, the Wisconsin Supreme Court has ruled.

It is important to maintain an ethical awareness when in the midst of mediation or legal negotiations, says James Mathie. He discusses ethics surveys of lawyers that have some surprising results, and provides several strategies to maintain your ethical awareness.

Wisconsin construction may soon need to comply with two different federal regulations aimed at combating COVID-19. Patrick Whiting summarizes the two new sets of rules affecting contractors with 100 or more employees and contractors entering federal contracts.

In 2020, the federal 340B Drug Pricing Program experienced an upheaval after some manufacturers cut the number of contract pharmacies obtaining drugs at a lower price and federal Health Resources and Services Administration Office of Pharmacy Affairs stepped up its enforcement authority. Richard Davis discusses the program, the surrounding litigation, and what’s next.

B Corps claim to be the gold standard for good business practices with respect to social and environmental performance, accountability, and transparency. Maureen O’Leary discusses the details of B Corps and benefit corporations in Wisconsin.

Prosecution misstatements about the elements of operating while intoxicated (OWI) and the omission of a paragraph from a standard jury instruction violated a criminal defendant’s due process rights.

A statute that exempts aircraft repair services from the state’s sales tax does not allow a company to deduct from the amount of sales tax it collects on an aircraft lease the portion attributable to repairs

A man convicted on four counts of fleeing or eluding an officer after leading police on a high-speed chase is not entitled to have three of the convictions vacated on grounds of ineffective counsel, because the three convictions were not multiplicitous

Rescheduling a final hearing on an involuntary commitment resets the 48-hour deadline for filing a jury demand, the Wisconsin Supreme Court has ruled.

The Wisconsin Supreme Court will redraw the existing voter redistricting maps, enacted in 2011 and litigated all the way to the U.S. Supreme Court, only where necessary to fix malapportionment between districts caused by population changes reflected in the 2020 census.

There are significant negative consequences from our unconscious assumptions. Lisa Derr provides seven steps to begin changing our unconscious bias and incorrect assumptions.

Private landowners may be asked to allow the public to use their land for snowmobiling and other recreational activities. Lindsey Kohls provides an overview of the protections for and risks to private landowners who let others engage in recreational activities on their property.

Four statutes authorize the recovery of attorney's fees for clients and lawyers in family law cases in Wisconsin. Karyn Gimbel Youso discusses the statutes, two of which apply generally to all civil cases and two that are specific to the family law statute.

Until the pandemic’s effects are greatly alleviated, construction supply chains will likely remain ambivalent and unpredictable. Saul Glazer discusses what owners, contractors, and suppliers can do to address the pandemic’s impact on supply chains.

A recent Occupational Safety and Health Administration notice requires that employers mandate that their employees either obtain a COVID-19 vaccination or undergo periodic COVID tests. Tom O’Day and Bethesda Zewdie review whether employers will be required to pay for COVID testing for employees who are not vaccinated.

Many businesses and industries are attempting to keep their workplaces as safe as possible due to COVID-19, including making vaccination a condition of employment.

Wisconsin law does not restrict a circuit court’s award of restitution for reasonable repair cost to the value of the property.

A man who served nearly 12 years in prison out-of-state after being sentenced in Wisconsin is not entitled to have that time credited against his Wisconsin sentences because it was not connected to the conduct underlying the Wisconsin sentences, the Wisconsin Supreme Court has ruled.

Legislation proposed in Wisconsin's Assembly and Senate can have an unexpected impact on your clients' payable on death (POD) designations. Jeff Goldman discusses the proposed bills, what that may mean for your clients' estate plans, and how to avoid unforeseen results.

Nine recent Wisconsin Court of Appeals cases discuss insurance coverage. Monte Weiss and Kristen Scheuerman provide a summary of the cases.

To offer securities or investment advice, broker-dealer agents have long been subject to continuing education requirements, but investment adviser representatives are not. That could change in 2022 or 2023. Deborah Fabritz discusses proposed educational requirements for investment adviser representatives.

The Fourth Amendment did not bar the admission of evidence discovered by a police officer who saw a dead body inside a garage after the garage owner called 911 to report a possible homicide.

State law does not allow the Town of Mentor to intervene as a matter of right in a case concerning the placement of a sexually violent person inside its boundaries, the Court of Appeals District IV has ruled.

A recent interim final rule from the Centers for Medicare & Medicaid Services requires health care providers and suppliers to establish COVID-19 vaccination requirements for all covered staff – and the vaccination deadline is fast approaching. John Rubin provides an overview of the rule, its required provisions, and the penalties.

A recent poll shows that the top reasons students enter law school are for a career in politics, government, or public service – yet only a small fraction of them become public interest lawyers. Jacob Haller discusses the reasons why, and offers a suggestion that can make a difference.

A current bill in the Wisconsin Legislature proposes a list of requirements and training that a potential guardian must go through before taking guardianship. Alexandra Evans discusses the requirements and their potential consequences for wards and guardians.

The Council of Environmental Quality (CEQ) proposed to restore the full breadth of reasonably foreseeable effects to be examined under the National Environmental Policy Act pursuant to the Biden Administration policy on climate resilience and environmental justice into the definitions of effects to accomplish the policies of the Biden Administration.

As the end of the London Interbank Offered Rate draws near, market participants should consider available alternative reference rates. The Bloomberg Short-Term Bank Yield Index (BSBY) is emerging as a contender. Patricia Lane, Louis Wahl IV, and Corrie Osborne discuss two possible replacements: the Secured Overnight Financing Rate and BSBY.

An action to compel a school district to turn over applications for a vacant school board position and applicants’ personal information will go forward under an opinion issued by the Wisconsin Court of Appeals District II last week.

What ethical limitations apply to a lawyer advocating systemic reforms? Chuck Stertz discusses the intersection of two aspects of the Supreme Court Rules of professional conduct: that they encourage attorneys’ active participation in efforts to improve the law and legal profession, while also requiring attorneys to zealously advocate for their clients and maintain client confidentiality.

A man who spent three years in jail awaiting trial and sentencing on armed robbery charges after his probation was revoked is entitled to 1,258 days’ credit against the armed robbery sentences, the Wisconsin Court of Appeals District III has ruled.

The ultimate hammer in the contractor’s bucket is to stop work. For the owner, it is to bar a contractor from a job. But there are significant potential downsides to taking such actions. Jim Dash identifies the risks of terminating a contract from either side.

A trial judge committed legal error when she sentenced a man to a five-year prison term for attempted robbery with threat of force without considering the gravity of the offense.

The increasing numbers of pumpkin patches, corn mazes, hay rides, and petting zoos prove that agritourism and other farm operations are growing in popularity. Matthew Beier explores liability concerns and protections for Wisconsin farmers who invite the public onto their property.

A man’s conviction on a charge of second-degree reckless homicide means that his homeowner’s insurance policy did not cover the death of his victim, the Wisconsin Court of Appeals District III has ruled.

Several proposed bills would significantly affect family law practice in Wisconsin. Emily Tercilla provides a brief overview of these legislative bills and their anticipated impact.

A man convicted on four felonies, two dismissed post-conviction on claims of ineffective assistance of counsel, can now pursue legal malpractice claims against his former defense lawyer for negligence as to two of the charges.

A recent National Labor Relations Board announcement updated guidance on whether student athletes at academic institutions are considered employees with the right to organize. John Rubin discusses the new guidance and gives practical suggestions for academic institutions in light of the announcement.

When one family unit becomes two, differing opinions on appropriate use of social media can arise. Ashleigh Hacker discusses the rise of “sharenting” and considerations for divorce attorneys in negotiating parental agreements.

Through Legal Aid Society’s EvictionFreeMKE, residents in Milwaukee County at or below 200% of the federal poverty level now qualify for free representation in an eviction case. Joe Riepenhoff discusses why this is a good start to stemming an overwhelming need.

The Wisconsin Supreme Court recently visited Ozaukee County as part of its “Justice on Wheels” program. Jacques Condon writes about their visit and includes excerpt from the remarks of Chief Justice Annette KingslandZiegler.

The intersection of Wisconsin’s workers’ compensation and safety regulations is more common than you may think. However, less common are those who possess the knowledge to handle the interaction of the two and determine who gets what. Matthew Lein gives the background on the intersection and examples that may help attorneys handle such a situation.

As mediators, we need to think about our presence. How do our attitudes and beliefs affect the mediation process? Paul Stenzel discusses how maintaining a positive attitude while acknowledging your biases strengthens your mediation skills.

As the human toll from climate change is becoming more and more apparent, human rights arguments are being increasingly used in climate change litigation. Arwen Bleksley discusses the increasing number of climate change litigation cases that use human rights as bases for their arguments.

The impeachment exception to the hearsay rule does not allow the state to use a defendant’s voluntary statement, obtained in violation of Miranda v. Arizona, during its case-in-chief, under a recent state supreme court decision.

What are the changes in the Emeritus status for senior lawyers? Michael May talks about the changes, who they apply to, and why he believes they were necessary.

The Wisconsin Supreme Court has issued another extension of a temporary order that allows court reporters to take depositions remotely.

The Court of Appeals District IV has reversed a circuit court ruling that a police officer illegally extended a traffic stop to administer field sobriety tests because he didn’t observe the driver driving, behaving or talking suspiciously.

A state appeals court has ruled that a restrictive covenant prohibits Door County landowners from converting their parcel into three, single-family units, concluding that the condominium declaration was an improper land division.

A recent Bureau of Justice Statistics study says that most former prisoners are reconvicted of a new offense or are returned to prison within 10 years of their release. Michael O’Hear outlines the study’s results, which also say that, for those who avoid rearrest in the first three years, recidivism rates drop sharply over time.

The First Amendment does not prohibit Congress from excluding businesses that offer live adult entertainment from the second round of the Paycheck Protection Program (PPP), the U. S. Court of Appeals for the Seventh Circuit has ruled.

Drones can be useful tools in construction. In this article, John Schulze outlines the laws that govern drone flying and offers advice for their use in construction.

There are many different ways to achieve a mediation agreement. Nancy Mills suggests alternative ways for both parties to achieve desired results.

The Supplemental Nutrition Assistance Program (SNAP) is an underutilized benefit, especially for older adults. In this Tip of the Month, Christine J. Huberty discusses how you can help promote and destigmatize Wisconsin’s FoodShare program for this vulnerable population.

Analysis shows that there are fewer Chapter 12 farm bankruptcies filed this year. But does that actually mean bankruptcies are down? David Krekeler discusses the issue – and the new form of Chapter 11 known as Sub V.

Our section is not diverse – yet. We want to do more to change that reality. Iris Christenson, past section chairperson and the new diversity and inclusion liaison for the section, talks about the section’s immediate and proactive steps toward improving the section’s diversity.

Physical property markers are powerful indicators of property law – and finding them is a hobby called “benchmarking.” Emily Kelchen points out how there are countless physical reminders of property law all around the U.S.

The Fifth Circuit Court of Appeals recently determined the Indian Child Welfare Act to be overall constitutional, although it struck down certain provisions. Bailey Holt provides an overview of the act, and discusses the case and its implications.

Although there may seem to be no neutral position when discussing recent U.S. troop withdrawal from Afghanistan, Ngosong Fonkem discusses an approach based on public international law principles.

OSHA recently updated its guidance for COVID-19 prevention plans in the workplace. Janelle Schlosser discusses the new guidance and outlines six of its recommendations.

A woman predicted that her husband might try to kill her. Then, she died by poisoning. The husband was charged with the killing. Could the wife’s accusation “from beyond the grave” be used against him at trial? Michael O’Hear discusses the case that required the Wisconsin Supreme Court to make sense of a messy line of U.S. Supreme Court decisions on the Confrontation Clause.

Property can change hands multiple times soon after a sale. Ryan M. Billings discusses a recent court of appeals decision that clarifies the circumstances under which a subsequent owner can sue the original seller for fraud.

While family law attorneys have access to discovery tools like basic interrogatories and requests for documents that are commonly used by civil litigators, there are other tools out there that can bolster a case. Jeff Raymond outlines the pros and cons ofthree tools typically underemployed in family law litigation.

While an errata sheet can be used to correct transcription errors, an errata sheet is not a panacea for a poorly given deposition. Erik Monson discusses case law and challenges surrounding use of errata sheets in making substantive changes to a depositiontranscript.

Is now the time to sell or gift a business before the end of the year? Maureen O’Leary discusses potential changes to gift, estate, and income tax laws, and why business owners might want to complete business transactions before the end of 2021.

In a recent Notice of Proposed Rulemaking, the U.S. Department of Labor proposed further changes to for tip regulations, an area that has been in flux for years. Justin Brewer provides an update on what’s going on with the 2020 Final Tip Rule.

To combat a shortage in certified private practice attorneys available to help Wisconsin’s youth, the State Public Defender Office (SPD) is offering training in juvenile justice practice. Diane Rondini discusses the SPD’s new project, Juvenile Rural Access to Training and Expertise (J-RATE).

With Wisconsin’s adoption of the Uniform Adult Guardianship and Protective Proceedings Act in 2018, transferring a guardianship to or from another state can be more efficient. Amy Greske discusses important factors in navigating the statute and successfully transferring a guardianship.

COVID-19 has brought many changes to the way mediations are conducted. Brent Smith discusses what mediation might look like, post-pandemic.

What happens when the State removes access to your clients’ property? That property’s value and use can be drastically and negatively impacted by the removal of access. Ryan Simatic discusses the remedy, inverse condemnation, and how it can be used to compensate property owners.

The State Public Defenders Office’s (SPD) goal to ensure that all clients are provided zealous and effective representation, regardless of the clients’ means, is a challenging one, especially in light of recent developments, like COVID-19. Katie York discusses the need for more attorneys willing to take SPD cases and ways that the SPD is using to close the gap.

In this article from the Marquette University Law School Faculty Blog, David Strifling, discusses an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward courts, the legislature, and the governor.”

Although pen-and-paper contracts are hardly extinct, the pandemic has accelerated the evolution toward electronic-only business transactions. Jennifer Budzien outlines the laws, requirements, and challenges of electronic records and signatures.

The Wisconsin Department of Children and Families recently promoted a new child welfare initiative that focuses on prevention and keeping families together. Azucena C. Guizar discusses the need to reach out to immigrant families in particular.