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    Wisconsin Lawyer
    December 01, 2004

    Legal News and Trends

    Wisconsin LawyerWisconsin Lawyer
    Vol. 77, No. 12, December 2004

    Legal News & Trends

    Act 227: expands deposition-taking prohibition

    By Attorney Jordan K. Lamb
    DeWitt, Ross & Stevens SC, Madison

    On April 12, 2004, Gov. Jim Doyle signed 2003 Wisconsin Act 227, which expands the list of persons who are prohibited from taking depositions in Wisconsin. Prior to the enactment of Act 227, Wis. Stat. section 804.03(3) prohibited a deposition from being taken before "a person who is a relative or employee or attorney, or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action."

    The new law maintains this prohibition but also clarifies that a party to the action may not take a deposition and expands the statute to prohibit depositions from being taken before "a person who has entered into a contract for court reporting services unless the contract is limited to a particular action or incident." Note, however, that this prohibition "does not apply to a person who records or transcribes depositions for a public agency" as defined in Wis. Stat. section 66.0825(3)(h).

    This statutory change ends the practice of entities who are frequent parties to litigation from entering into long-term contracts with court reporters or court reporting firms under which the parties receive volume discounts, priority status, early transcripts, and so on. To preserve court reporters' impartiality, under the new statute, if a contract for court reporting services is entered into for any deposition taken in Wisconsin, the contract with the person taking the deposition must be limited to a particular "action or incident." Many other states, including Illinois, Iowa, Michigan, and Minnesota, also have addressed this anticontracting issue through similar statutory or court rule modifications.

    The act, which became effective on April 27, 2004, is available at PDF 6 KB.

    Comments due by March 1

    Feedback sought on Wisconsin Jury Instructions

    In November, at the request of the Board of Judges, the Wisconsin Jury Instructions Committee formed a subcommittee to recommend revisions to the eminent domain series of jury instructions in Wisconsin Jury Instructions - Civil.

    The subcommittee, comprising six lawyers from throughout the state, plans to submit its recommendations to the Board of Judges by November 2005 and seeks feedback by March 1. Comments should be directed to one of the following subcommittee members:

    • Thomas Hartley, Kenosha, (262) 658-4800,
    • Alan Marcuvitz, Milwaukee, (414) 225-4927,
    • Kathleen Ptacek, Madison, (608) 266-0432,
    • Benjamin Southwick, Richland Center, (608) 647-4111,
    • Harry Stein, Milwaukee, (414) 447-1491,
    • Allison Swanson, Green Bay, (920) 448-3080,

    Since 1960, the U.W. Law School has joined with Wisconsin trial judges to develop uniform jury instructions for civil and criminal cases. This partnership has produced nearly 1,000 jury instructions to assist judges, lawyers, and, most importantly, jurors in understanding what the jury must decide at the conclusion of a trial. These instructions are published by the U.W. Law School.

    Supreme court adopts new code governing judicial elections

    The Wisconsin Supreme Court has adopted a new rule, effective Jan. 1, 2005, to guide the campaign activity of judges and candidates for judicial office.

    The court voted 4-3 to adopt the revised recommendation of the Commission on Judicial Elections and Ethics, which the court appointed in 1997 to examine judicial campaign ethics and judges' participation in partisan politics.

    Key parts of the new rule include campaign finance, campaign content, and political activities.

    Campaign finance

    • Judges, judges-elect, and nonincumbent candidates for judicial office will be prohibited from personally soliciting or accepting campaign contributions.
    • Campaign committees may solicit and accept lawful contributions to judicial campaigns from lawyers and other contributors. Contributions may not knowingly be solicited or accepted from litigants with matters before the court to which election is sought.
    • Membership on campaign committees or the choice of campaign consultants or managers will not be restricted.
    • Special rules on disqualification or recusal will not be imposed.
    • No new rule will set the timing of judicial campaign fundraising.
    • No special rules will govern the use of judicial campaign funds.

    Campaign content

    • The rules prohibit campaign rhetoric that commits or appears to commit a candidate for judicial office with respect to particular cases, controversies, or issues likely to come before the court. Campaign rhetoric concerning court rules or administrative practices and policies is not restricted.
    • The rules governing judicial elections explicitly prohibit misrepresentations by candidates, and rhetoric that is knowingly misleading or knowingly likely to confuse the electorate with respect to the proper role of judges and lawyers in the American adversary system.
    • No special rule will control campaign speech about decisions of a sitting judge or decisions of an appellate court.

    Other political activities

    • Judges, candidates for judicial office (including those seeking appointment to the bench), and judges-elect will be prohibited from:
      membership in a political party during the term of office or when a candidate or judge-elect; office holding or leadership of a political party during the term of office or when a candidate or judge-elect; and active participation in the affairs of a political party during the term of office or when a candidate. These prohibitions do not apply to an individual who is a candidate for appointment or election to the bench and who holds a public office that requires him or her to have a partisan political affiliation.
    • Order 00-07

    Court changes OLR suspension procedures

    On Nov. 19, the Wisconsin Supreme Court ordered amendments to Office of Lawyer Regulation (OLR) procedures in interim suspension situations. With regard to summary suspensions based on a criminal conviction (SCR 22.20), the amended rule will require the OLR to file the complaint in the underlying matter within two months of the summary suspension's effective date. The referee then must conduct a hearing and file a report within two months of when the OLR filed the complaint. The OLR will no longer be required to present these matters to the Preliminary Review Committee because the conviction is conclusive of whether the acts occurred and the supreme court reviews the matter before imposing a summary suspension.

    With regard to temporary suspensions for threats to the interests of the public and the administration of justice, the OLR must file the complaint within four months of the suspension; the referee must conduct a hearing and file a report within six months of the complaint. The Preliminary Review Committee will review these cases before a complaint is filed.

    The amendments give priority to cases involving interim suspensions and to protect respondent attorneys' due process interests against undue delay in the completion of underlying investigations and hearings, according to OLR Director Keith Sellen. There are no changes to the procedure for temporary suspension for willful failure to cooperate (SCR 22.03). The amendments are effective Feb. 1, 2005. The supreme court's order is available at and will be published in the February Wisconsin Lawyer.

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