Wisconsin Lawyer
Vol. 77, No. 12, December
2004
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 www.legis.state.wi.us
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,
tbh@kenoshalawyers.com
- Alan Marcuvitz, Milwaukee, (414) 225-4927,
ahmarcuvitz@mbf-law.com
- Kathleen Ptacek, Madison, (608) 266-0432,
ptacekkm@doj.state.wi.us
- Benjamin Southwick, Richland Center, (608)
647-4111, bsouth@mwt.net
- Harry Stein, Milwaukee, (414) 447-1491,
northbluff@sbcglobal.net
- Allison Swanson, Green Bay, (920) 448-3080,
allisonsw@ci.green-bay.wi.us
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 www.wicourts.gov
and will be published in the February Wisconsin Lawyer.
Wisconsin
Lawyer
