Letters
Evidence lacking to support caps on damages
President Saichek's commentary, "Putting a Lid on Caps" (December
1996), courageously discusses the lack of evidence for dramatic changes
in our state's civil justice system.
More than 10 years ago, when this debate first began, former State
Bar President John Walsh took the position, "Wisconsin's civil justice
system deserves to be evaluated on the basis of solid research,
documentation, and its historical record." The State Bar prepared three
different reports on civil case filings and joint and several liability
in Wisconsin. The studies found civil case filings were not clogging the
courts, jury verdicts were modest and joint and several liability rarely
affected jury verdicts.
The State Bar's findings have been supported by studies ranging from
the U.S. government, the National Center for State Courts, the Rand
Institute for Civil Justice and the Wisconsin Institute for Legal
Studies. Contrary to these virtually unanimous studies, state
legislatures across the country proclaimed our civil justice system
"unfair" and proceeded to limit the rights of injured consumers.
What is baffling to me and many others is how the truth regarding our
civil justice system has been obfuscated and evidence ignored. As
lawyers, we have an obligation to ensure our legal system is not
attacked unjustly or incorrectly. We must speak out. President Saichek
persuasively does so.
William R. Wilde, President
Wisconsin Academy of Trial Lawyers
Oshkosh
Kranzush still controls insurers' duty of good faith
I write in regard to Mr. Shannon's letter in the December 1996
Wisconsin Lawyer ,in which he comments on "Offers of Settlement
and an Insurer's Potential Bad Faith," (October 1996), and Blank v.
USAA Property & Casualty Ins. Co., 200 Wis. 2d 270, 546 N.W.2d
512 (Ct. App. 1996).
First, on a point of clarification, I agree that an insurer has the
right to pay its policy limits in partial settlement of a claim against
its insured which may exceed policy limits. Such action fulfills the
insurer's obligation to indemnify and, if there is appropriate language
in the policy, its duty to defend. Novak v. American Family Mutual
Ins. Co., 183 Wis. 2d 133, 515 N.W.2d 504 (Ct. App. 1994).
I am troubled, however, by what I read as an implication that
Blank has created some enhanced duty to pay policy limits,
breach of which may be some sort of bad faith the claimant. If that is
what Mr. Shannon meant to say, I must take issue. I think that
Kranzush v. Badger State Mutual Casualty Co.,103 Wis. 2d 56,
307 N.W.2d 256 (1981), is still the controlling case on that point.
Kranzush makes it clear that the relationship between a
liability insurer and a third-party claimant is adversarial, and that
the duty of good faith runs only between the insurer and the insured. I
do not read Blank as changing the Kranzush rule in any
respect.
Second, with regard to the matter of holding policy limits "hostage,"
I believe that Mr. Shannon's characterization is inaccurate. If a
carrier does not have appropriate defense termination language in its
policy or chooses not to invoke it, I see little reason why the carrier
should pay its limits without a release of the insured, thereby funding
the continued prosecution of the case against the insured. Such action
could enhance the insured's exposure beyond the limits and increase the
carrier's cost of defense. Under those circumstances, offering policy
limits in exchange for a full release while continuing to defend makes
sense from the perspective of both the insured and the carrier. It may,
in fact, be the only rational choice for an insurer that does not have
the option of terminating the defense. Under Kranzush, it is
not only an appropriate but perhaps a necessary course of action if an
insurer is to carry out its obligation of good faith to its insured.
Bernard T. McCartan
Regional Claim Counsel
American Family Insurance Group
Madison
Clarifying life as a British Barrister; pardon me, English
Barrister
Having been called to the Bar of England and Wales as a barrister by
Gray's Inn in July 1995, I write in respect of David W. Simon's article
in the December Wisconsin Lawyer entitled, "Wigs, Robes and Learned
Friends: Life as a British Barrister." I very much enjoyed reading Mr.
Simon's article, which was waiting on my desk in chambers in London upon
return from my Christmas vacation in Iowa. I would like to clarify a few
points.
The title of Mr. Simon's article is somewhat misleading as there is
no such thing as "a British Barrister." There are English barristers who
practice English law in England and Wales, Scottish advocates who
practice Scots law in Scotland, and Northern Irish barristers who
practice Northern Irish law in Northern Ireland. The Inns of Court, the
Bar School, the pupillages, and the tenancies to which Mr. Simon refers
pertain only to call to and practice at the Bar of England and Wales.
Scotland has its own bar, and Scots law is based upon Roman law.
Northern Ireland has its own bar, and Northern Irish law is based upon
English law.
I was impressed that Mr. Simon grasped the difficulty an English
barrister-to-be has in obtaining pupillages and ultimately a tenancy.
However, it is more accurate to state that less than one-half of Bar
School graduates find pupillages and less than one-quarter of Bar School
graduates find tenancies. It is extremely difficult for an American
lawyer exempt from Bar School to find pupillages and a tenancy. I was
fortunate to be able to complete six months of pupillage in barristers'
chambers in London, three months of pupillage in the legal department of
the U.K. subsidiary of a Dutch multinational electronics company in
London, and three months of pupillage in a firm of Belgian advocates in
Brussels, although my 12 months of pupillage were not consecutive. Again
I was fortunate to be offered a tenancy in the Chambers of Marie-Claire
Sparrow on Chancery Lane in London, but only because I was an
experienced American practitioner.
Mr. Simon's article gives the impression that the vast majority of
work an English barrister performs is oral advocacy in court. This is
true. However, many barristers seldom go to court as their practices are
mainly paper-based. They provide advice in the form of a written
counsel,s opinion to solicitors or other professionals with direct
access to the bar on complicated legal matters or they draft complicated
litigious or nonlitigious documents for solicitors to use in their
clients' affairs.
The importance of maintaining close ties between American bars and
the English bar is that the latter provides access to the former to the
European Community. As an American attorney and an English barrister I
am able to provide the lawyer-client privilege in respect of European
Community competition (antitrust) law, which lawyers admitted only as
attorneys in the United States cannot provide to their American or
European clients either in the United States or the European Community.
I also enjoy the right to advise American clients directly without them
having to be referred by a solicitor, provided that litigation has not
been commenced in the courts of England and Wales; the right of audience
in all courts of England and Wales, including the U.K. House of Lords;
the right of audience in the Courts of First Instance and Justice of the
European Communities in Luxembourg; the right of audience in the
European Court of Human Rights in Strasbourg; and the right to plead,
with appropriate translations or interpretations, in all courts of all
15 member states of the European Community.
I am glad that Mr. Simon appears to have had a good experience as a
Pegasus Scholar in London and that from the perspective of an American
attorney he was able to see firsthand the upside of English legal
practice. Mr. Simon's article was a good summary of life as an English
barrister.
Michael Buxton Devine
Des Moines, Iowa
New York, New York
London, England
Thanks for the memories
Thank you for the nice job everyone did in putting on the State Bar's
50 years of service recognition luncheon. My father enjoyed it
immensely. He was a little skeptical of what he was getting into when my
mother talked him into attending. However, he had a great time and
remarked several times on the way home how much he enjoyed the luncheon
and how excellent the speakers were.
Thomas B. Hartley
Kenosha
Thank you for the wonderful reception, program and recognition that
the 50-year members were given on Jan. 24, 1997. As far as I was
concerned, it was a moving afternoon. I felt that I had attained a
milestone in my career, and the recognition was truly appreciated. All
of my guests, which included family and some employees, thoroughly
enjoyed the program, and I am looking forward to receiving the pictures
that were taken. They will be of extreme value to me. I enjoyed the
opportunity to see a number of my classmates and other friends that I
have not seen for some time.
Irving D. Gaines
Milwaukee
Wisconsin Lawyer