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