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    Wisconsin Lawyer
    March 01, 2004

    Legal News and Trends

    Wisconsin Lawyer
    Vol. 77, No. 3, March 2004

    Legal News & Trends

    Former State Bar President Truman McNulty's contributions spanned more than 50 years

    Truman McNulty

    Truman McNulty, former State Bar president

    Former State Bar President Truman Q. McNulty passed away on Jan. 26. A member of the Whyte Hirschboeck Dudek S.C. law firm in Milwaukee, his career spanned more than 50 years. McNulty was 82.

    "Truman's passion and love of the law is evident in the way he lived his life," said long-time friend and colleague Charles C. Mulcahy, Milwaukee. "His commitment to this passion is borne out in his many contributions to the profession, the public, and the community."

    McNulty was devoted to advancing and maintaining the integrity of the profession's responsibilities, and his scope of commitment to the legal profession led to positions of leadership and involvement in various activities in the State and American bar associations, the Wisconsin Law Foundation (WLF), and in service to the public.

    "Truman was a model for what every lawyer should strive to be," said State Bar President George Burnett. "He was proud of his profession, dedicated to his clients, loved his family, and committed to his community."

    "Truman was a remarkable person," said Nathan Fishbach, Whyte Hirschboeck Dudek S.C. "He had clients for decades. He was their attorney, their trusted adviser, and most importantly, their friend."

    In May 2001, McNulty received the WLF Charles L. Goldberg Award, which recognizes lifetime achievement of individuals in the legal profession with a record of service to the profession and to the public.

    "Truman was an active and caring member of the Wisconsin Law Foundation for many years," said WLF President Cheryl Furstace Daniels. "He believed in the mission of supporting law-related education and public service projects for Wisconsin citizens. We will miss his dedication to the cause."

    McNulty served as State Bar president in 1978 - 79, and served three terms on the Board of Governors and one year as an Executive Committee member. He began his leadership career in the State Bar in 1960, serving four years as chair of the Post-Graduate Education Committee. This led to the development of the State Bar's CLE program and the adoption of mandatory CLE in 1977.

    McNulty was involved at a comparable level of activity in the American Bar Association. A member since 1956, he was appointed to the Standing Committee on Ethics and Professional Responsibility, the Professional Discipline Committee, and the ABA Standing Committee on Continuing Education to the Bar. The ABA House of Delegates elected him to the Board of Governors.

    McNulty, Marquette Law School 1948, also was active in alumni activities. He served as president of the Wisconsin Law Alumni and the All University Alumni Association and as a member of the University's President's Council.

    McNulty served as a member and president of the mayor's Advisory Council in Milwaukee. Gov. Warren Knowles appointed McNulty to the State Board of Health and Social Services, where he served for six years, including two years as chair.

    At the time of his death, McNulty was WLF Fellows Board of Trustees past president, WLF Fellows member, and Fellows Finance Committee member.

    McNulty leaves his wife, Emily; four children, Mark, Mary Kay, Brian, and Erin; and four grandchildren.

    Memorial contributions can be made to:

    The Truman Q. McNulty, Ethics in the Law Award Fund, Marquette Law School, Attn: Christine Wilczynski-Vogel, Sensenbrenner Hall, P.O. Box 1881, Milwaukee, WI 53201-1881.

    Senate supports Daubert; bill moves to Assembly

    A proposal is advancing in the state legislature that would change the basis on which Wisconsin courts would determine the admission of lay and expert witness testimony. Approved by the Republican-controlled Senate on a party-line 18-15 vote, Senate Bill 49 would adopt the Daubert standard, codified in the Federal Rules of Evidence, requiring judges to assume a significant "gatekeeper" function in keeping from the jury scientific evidence the judge deems unreliable.

    Under current law, if a witness is not testifying as an expert, the witness's testimony is limited to those opinions that are rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony or of a fact at issue in the case. SB 49 adds the additional limit that a nonexpert's testimony may not be based on the witness's scientific, technical, or other specialized knowledge. Current law also allows the testimony of an expert witness if that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue in the case. SB 49 limits the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principles and methods, and that is based on the witness applying those principles and methods to the facts of the case.

    While Wisconsin courts do not make a direct determination as to the reliability of the scientific principles on which the evidence is based, as proposed in SB 49, they do play a limited gatekeeper function. Under state law, courts may exclude relevant evidence on the grounds of prejudice, confusion, or waste of time. In addition, parties can challenge the reliability of expert testimony through cross-examin-ation, and it is up to a jury to decide whether the testimony is credible and what weight to assign to it.

    Proponents argue that the legislation is needed so judges can filter out "junk science" before it reaches the jury. Opponents say that Wisconsin does not have a problem with "junk science," and if the system is not broken, why fix it?

    The legislation was amended in the Senate so it would not apply to criminal cases and chapter 980 sexual predator cases, in response to concerns raised by the Attorney General's Office. In a letter to the chair of the Senate Committee on Judiciary, Corrections and Privacy, which considered the bill, Attorney General Peg Lautenschlager noted that SB 49 may substantially affect the Department of Justice's prosecution of criminal, traffic, and violent person cases in state courts.

    The State Bar opposes SB 49 because it believes the supreme court, through its rule-making process, is the appropriate forum for considering the wisdom of adopting the federal rules on experts or some other variant.

    The Assembly Committee on Corrections and the Courts held a public hearing on SB 49 on Feb. 11, but has taken no action on the bill. The legislation must be passed by the Assembly and approved by the governor before becoming law.

    SCR requires training for GALs for adults; upcoming seminars in statewide locations

    The Wisconsin Supreme Court has created SCR 36, requiring training to become eligible for appointment as a guardian ad litem (GAL) for adults. Effective July 1, 2004, to serve as GAL for an adult, attorneys must have completed either 30 hours of Board of Bar Examiners-approved GAL education; or six hours of GAL education focusing on the role and responsibilities of a GAL for an adult during the combined current reporting period when accepting an appointment and the immediately preceding reporting period, or requested that the court find they are otherwise qualified to accept the GAL appointment.

    Attend an upcoming State Bar CLE seminar to fulfill the new SCR requirement. The 17th Annual Law and the Elderly Seminar, focuses on the growing problem of financial abuse of the elderly. The Advanced Directives End-of-Life Decision Making Seminar will help attorneys assist clients in making end-of-life decisions so attorneys can translate clients' wishes into meaningful, enforceable legal documents.

    Both seminars have been approved for 7.5 GAL adult credits. Annual Law and the Elderly will be presented on April 7, at statewide locations, 8 a.m. - 4:15 p.m. Tuition is $199. Advanced Directives will be presented on April 1 in Milwaukee and on June 8, at statewide locations, 8 a.m. - 4:30 p.m. Tuition is $179 for Public Interest Law Section members and $199 for nonsection members.

    To register, visit and click "Marketplace" on the left navigation panel, or call (800) 728-7788 or (608) 257-3838.

    The newly created rule was issued as Supreme Court Order 03-03 and published in the February 2004 Wisconsin Lawyer.

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