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    Supreme Court Adds Three Cases, One Involving Legal Malpractice Insurance

    Aug. 26, 2014 – The Wisconsin Supreme Court will hear two more criminal cases and one case involving a dispute over legal malpractice coverage in the next term. The previous term ended June 30, 2014, but the court is back in action after Labor Day.

    Attorneys may be particularly interested in Anderson v. Aul (2013AP500), which is expected to have “a substantial statewide effect on the cost and availability of legal malpractice coverage in Wisconsin,” according to an information release from the court.

    The case arose from a real estate transaction. Attorney Thomas Aul represented Melissa and Kenneth Anderson in the acquisition of business property from a limited liability company that Aul owned. The Andersons complained about the representation.

    Aul had a legal malpractice insurance policy with Wisconsin Layers Mutual Insurance Company (WILMIC). The policy covered claims made first made against Aul and first reported to WILMIC for a one-year policy period between April 2009 and April 2010.

    This policy was a so-called “claims-made” policy that covered claims first made and reported during the policy period. WILMIC said that Aul first learned of the potential claim during the policy period but did not report the claim until after the policy term expired.

    The circuit court ruled in favor of WILMIC, concluding that Aul had ample opportunity to report the potential claim but failed to do so.

    A three-judge panel for the Wisconsin Court of Appeals reversed, concluding that the circuit court erred because it did not determine whether WILMIC was prejudiced by the untimely notice. It noted statute statures requiring a determination of prejudice, and determined that WILMIC was not prejudiced by Aul’s untimely notice of claim.

    “A decision by the Supreme Court could clarify terms of coverage for legal malpractice under certain circumstances and policy types,” the court’s information release states.

    Criminal Cases

    The supreme court also added to criminal cases to the docket. In State v. Anthony (2013AP467-CR), the court may decide the limits of a circuit court’s authority to deny a defendant’s right to testify. In State v. Griep (2009AP3073-CR), the supreme court may decide whether the Confrontation Clause prohibits surrogate witnesses.

    In Anthony, the trial court denied defendant Eddie Anthony’s right to testify. Anthony, was charged with first-degree intentional homicide, and was going to testify that he had three prior convictions. But one was a wrongful conviction.

    The circuit court judge did not want Anthony, who was going to argue self-defense, to testify about the wrongful conviction and determined that Anthony may be a disruptive witness. Thus, it ruled that Anthony could not testify in his own defense.

    Anthony wanted to explain that he had a fear of police, which stemmed from his wrongful conviction. That was Anthony’s explanation for fleeing to Illinois after he killed his live-in girlfriend, who Anthony claimed was the aggressor the night of her death.

    The appeals court affirmed, concluding the circuit court properly denied Anthony’s request to testify at trial.

    The Griep case examines whether the Confrontation Clause prohibited a crime lab chief who did not personally conduct or observe lab work from testifying regarding a lab analysts procedures and conclusions regarding blood testing for alcohol.

    Summaries derived from full summaries on the Wisconsin Court System website,  

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