“There’s ignorant and there’s stupid. Ignorant just means you haven’t learned yet. Stupid means you can’t. We whistleblowers are stupid.… I just couldn't get it. I couldn't figure out how to turn my back on it.”1 – Fred Whitehurst, FBI whistleblower
Dr. Fred Whitehurst is a criminal defense attorney, holds a Ph.D. in chemistry, and once served as the FBI’s top bomb-residue expert.2 In the 1990s, he exposed serious problems at the FBI crime lab, including flawed science, insufficient documentation, and inaccurate testimony in criminal cases.3 His statement above reflects a key truth that plaintiffs’ and corporate defense lawyers alike must understand when dealing with whistleblowers: they are not your typical client or adversary. They live in a world so far removed from the everyday reality most people inhabit that it might as well be a different planet. Lawyers interacting with whistleblowers would be wise to act accordingly.
Unfortunately, lawyers often fail to do so. Many corporate defense and plaintiffs’ lawyers act in accordance with common but erroneous myths about whistleblowers, including that they are motivated primarily by money4 or that they are merely disgruntled employees with an axe to grind.5 These fundamental misunderstandings can negatively affect both the processes and outcomes when dealing with whistleblowers.
This article is based on academic research findings; interviews with prominent whistleblowers, lawyers, and others with experience in the field;6 and the author’s personal experience as a whistleblower.7 From very public whistleblowers such as Edward Snowden and Chelsea Manning to the anonymous sources whose information appears in each day’s news, we live in an era in which whistleblowers’ revelations often drive massive political or legal change and impact organizations and individuals alike across the globe. All lawyers should brush up on the human elements of whistleblowing as well as the relevant laws. You never know when a whistleblower will walk through your (or your client’s) door.
Many people go to work each day, do their jobs with varying degrees of satisfaction and vigor, and go home. Fundamental issues of human morality rarely become a driving factor in their day-to-day work. Whistleblowers, meanwhile, are often driven to extreme actions by a powerful belief that they are required to do so out of a sense of moral obligation. This is not to say that whistleblowers are universally and objectively more moral than the institutions they set themselves against; it is, however, crucial for lawyers representing or defending against whistleblowers to understand how they view themselves and their actions.
edu wkramer wisc Will Kramer, a former Congressional oversight investigator, risk management consultant, and whistleblower, is a student at the U.W. Law School and clerks at Kasieta Legal Group LLC, Madison. He anticipates graduating in December 2018. Photo: Milwaukee Journal Sentinel, used with permission.
Jane Turner is a 25-year veteran of the FBI and was the first woman senior resident agent in the history of the bureau.8 She worked within the FBI to expose lax investigation of sexual assault cases involving children on Native American reservations and later blew the whistle on FBI agents who had stolen evidence from the World Trade Center Ground Zero site after the Sept. 11 terrorist attacks. Of her whistleblowing experiences, Turner recalls, “I knew what I was doing was right. I just couldn't understand why they couldn't understand that.”9
Robert MacLean was in the first class of 35 new federal air marshals to graduate after Sept. 11, 2001. In 2003, only days after the Department of Homeland Security (DHS) issued unprecedented in-person briefings to all air marshals warning of a specific terrorist plot to hijack long-distance flights, the air marshals were instructed via an unclassified communication that they would not be protecting any flight longer than 3.5 hours to save on hotel costs until the end of the fiscal year.10 Fearing for the public’s safety, MacLean went first through internal channels and then to a reporter with MSNBC; his actions resulted in Congressional uproar, and the Transportation Security Administration (TSA) recognized the plan was a mistake and changed course.11 MacLean believes simply that “as a federal law enforcement officer, you have an obligation to disclose wrongdoing.”12
Bradley Birkenfeld provided the U.S. Department of Justice (DOJ) with information on Swiss bank UBS’s tax evasion schemes, resulting in a $780 million penalty to the bank and allowing the Internal Revenue Service (IRS) to collect more than $5 billion in taxes from wealthy U.S. taxpayers who had hidden assets overseas.13 According to Birkenfeld, “what these guys thought they could get away with was wrong; I was holding them accountable.”14
Just as Whitehurst couldn’t figure out how to turn his back on serious problems in the FBI’s forensics practices because of the potential for people to be convicted of crimes they did not commit,15 each of these whistleblowers understood their role in their workplace in explicitly moral terms. For them, a more revealing question than “Why did you do it?” is “Why were you the only one to speak out?”
Although each of these whistleblowers recognized that it takes a certain kind of person to put their own careers and lives at so much risk in the service of others and understood that not everyone can or should do so, they uniformly had a hard time expressing why their coworkers did not feel similarly compelled to act.16 Many whistleblowers live in a world where morals and an organization’s stated values are so much more than mere slogans, a world that the more cynical among us simply may be unable to recognize.
Many corporate defense and plaintiffs' lawyers act in accordance with common but erroneous myths about whistleblowers, including that they are motivated primarily by money or that they are merely disgruntled employees with an axe to grind.
Research into whistleblowers supports the notion that they are driven far more by values than other more tangible factors such as the potential for financial reward. A 1989 study of 161 whistleblowers found that they tended to believe in absolute moral standards, individual responsibility, and a fierce commitment to upholding moral principles.17
More recently, in 2011, the Ethics Resource Center’s National Business Ethics Survey showed that monetary reward was the least likely factor that would lead an employee to report wrongdoing outside of their organization. Much more likely to prompt external reporting were if the wrongdoing was a serious enough crime (82 percent of respondents) or if it was ongoing (70 percent), if keeping quiet would harm people (76 percent) or the environment (65 percent), and if the organization failed to correct the problem after the employee reported it internally (65 percent).
Additionally, contrary to the myth that whistleblowers are disgruntled employees who jump at the chance to exact harm on their current or former employers, the Ethics Resource Center has found that people who report misconduct tend to be employees with a greater sense of agency, confidence in their job security, and management support. They are also more likely to be managers, financially stable, and personally aligned with their companies’ values.18
Crucially, 92 percent of those who have reported misconduct first tried to report the misconduct internally.19 Whistleblowers are primarily individuals who consider themselves to have a strong sense of morality and commitment to their organizations and feel compelled to correct what they perceive as a serious wrong against the public interest.
The Risks and Costs of Whistleblowing
A large part of a lawyer’s role is to analyze the legal and other risks posed by different choices available to a client or another party and to advise the client accordingly. For whistleblowers, the risks are substantial. In one study of 64 whistleblowers, only 20 were able to keep their jobs and all of those were public sector employees. Of those 20, most felt isolated and stymied in their careers.20
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In another study, 60 percent of whistleblowers reported losing their jobs, another 11 percent had their job responsibilities, salary, or both reduced, and 18 percent experienced other forms of harassment. Only 5 percent of whistleblowers in that study reported no retaliation at all.21 One researcher who worked with several dozen whistleblowers reported that most lost their homes or their families because of the financial and emotional costs of blowing the whistle.22
Although each of the whistleblowers interviewed for this article ultimately had some measure of success legally, they were candid in their assessments of what the process had cost them.
In 2013, the DOJ found that the FBI had illegally retaliated against Jane Turner.23 According to Turner, the process of fighting the FBI caused her to become extremely physically ill and shattered her sense of self.24
MacLean was vindicated by the U.S. Supreme Court in 2015, which affirmed the court of appeals’ finding that his actions were entitled to protection under a federal whistleblower statute.25 MacLean, now reinstated at the TSA but at his 2002 salary, has been financially devastated by the process and worries that ongoing stress from the experience will put him in an early grave.26
Whistleblowers are often driven to extreme actions by a powerful belief that they are required to do so out of a sense of moral obligation. … It is crucial for lawyers representing or defending against whistleblowers to understand how they view themselves and their actions.
Fred Whitehurst received a settlement from the FBI and he continues to be a driving force in the movement to expose faulty forensic science that has been used to convict innocent people.27 He regrets, however, that his wife and daughter went through “unmitigated hell” and worries about the long-term effect of his whistleblowing on his family.28
The IRS awarded Bradley Birkenfeld $104 million for his role in exposing financial crimes; however, for the same act of whistleblowing he spent more than two years in prison.29
In light of these costs, I asked each of these individuals whether they would do it all again; none even hesitated in affirming that they would.30 Again, research bears out this anecdotal finding. One study of whistleblowers found 81 percent would do it again, even with full knowledge of the outcome.31
At the same time, each of the whistleblowers interviewed for this article was quick to note that they would discourage others from becoming whistleblowers.32 This, too, appears to be a common perspective from whistleblowers as well as their lawyers. At one conference for whistleblowers’ lawyers, every speaker on a panel stated that they advised their clients not to do it.33
One whistleblower has famously advised others to simply “[f]orget it!” If they cannot, he continued, “[b]e prepared to be ostracized, your career coming to a screeching halt, and perhaps even being driven into bankruptcy.”34 In short, the risks of whistleblowing are enormous, but some people will feel compelled to do it anyway in certain situations, even when they recognize that blowing the whistle is contrary to their own interests.
Practical Implications for Lawyers
This article is focused on the important human element of legal work involving whistleblowers and does not attempt to address the multitude of laws under which whistleblower claims may be brought. For an introduction to some of these laws, please see “Managing the Threat of Whistleblower Claims” in the October 2015 issue of Wisconsin Lawyer.35 However, it is important that any lawyer considering taking on a whistleblower client do so with full awareness of the complexities and challenges in the substantive and procedural law of whistleblower practice. (Please see the accompanying sidebar.)
Prevention. Regarding whistleblowing, the most effective service that corporate and government lawyers can provide their clients is helping them to establish policies and cultures that reduce the likelihood of whistleblowing from within their ranks.36 If the myths about whistleblowers being disgruntled employees driven by the prospect for financial rewards were accurate, there would be essentially nothing proactive organizations could do to address this risk. In reality, because whistleblowers primarily are individuals who view themselves as being driven by a need to correct what they perceive as a serious wrong, the most effective single preventive strategy for organizations is simply to commit fewer serious wrongs.
The Network Inc./Navex, a global risk and compliance firm, encourages organizations to embrace whistleblowers as valuable sources of information about compliance and reputational risks. Specifically, the firm recommends building a culture of reporting, avoiding retaliation against whistleblowers, promoting 24/7 integrity at the top of the organization, and providing middle managers with training and support in identifying and addressing employee reports of misconduct.37 By helping their clients improve their organizations and address risks proactively, corporate and government lawyers can be part of a solution that simultaneously reduces the need for whistleblowers and advances the public interest.
For a whistleblower's lawyer, forgetting the client's motivations, the risks they are willing to take, and their ultimate goal can be catastrophic to the representation.
Intake and Communications. Plaintiffs’ lawyers who work with whistleblowers (or hope to) must be aware of their unique characteristics and needs. Jane Turner, a whistleblower herself, describes people who are in the midst of a whistleblowing experience as often presenting with disjointed thoughts and rushing speech patterns, and she can “see what the turnoff is” to those who are unprepared for it.38 Fred Whitehurst, recalling early meetings with his lawyers and describing himself as a “Vietnam combat vet with a big gun, an FBI badge, and tears in my eyes,” believes they were likely physically afraid of him.39 For lawyers who typically strive for quick, stick-to-the-facts intake interviews with prospective clients, these types of behaviors might cause the firm to screen out individuals with strong legal cases.
For a person in crisis, the first contact with a law firm is a crucial moment that can either lay the foundation for trust or shatter it completely. Daniel Van Schooten manages intake communications with whistleblowers at the Project on Government Oversight (POGO), a nonpartisan watchdog group.40 Most of the people who speak with him are desperate, and it is often clear early in the conversation that POGO will not be able to help them. He believes one of the most important services he provides is simply taking the time to listen and helping callers understand their options.
Sometimes, he will discover that his initial impression was wrong, and the individual may have a case that falls within his organization’s expertise. More importantly, by letting these whistleblowers feel heard, Van Schooten believes, he is helping them out of a vicious cycle: whistleblowers often are first deflected by their employers, making them feel distrustful and paranoid. If lawyers then refuse to take their cases without clearly explaining why they will not or cannot take the case, it feeds whistleblowers’ distrust and paranoia, which then can result in more people ignoring their concerns.41
Lawyers who hope to work with whistleblowers would do well to review their intake processes in light of the needs of their prospective clients. Although lawyers could always use a reminder about the importance of communicating with their clients,42 this may be especially important regarding whistleblowers. Van Schooten advises lawyers to overcommunicate if possible. “For you,” he says, “it might be just another case. For them, it’s their entire life.”43
David Colapinto, general counsel for the National Whistleblower Center and a founding partner at the whistleblower firm Kohn, Kohn & Colapinto, believes lawyers in this field should seek to involve their clients as much as possible in the process. Rather than being concerned about a whistleblower client being too needy, Colapinto would worry more about a client who just wants a case filed and leaves the rest to the lawyers. “I’m looking for an engaged client,” says Colapinto, “because the more engaged they are, the better the case is going to go.”44
Representation Strategy. Corporate defense and plaintiffs’ attorneys alike may make strategic missteps if they forget the basic nature of the whistleblower’s world. As noted by the authors of one whistleblower study, whistleblowers do not appear to behave rationally in a sense most of us would understand. Specifically, “[whistleblowing] may often be principled and admirable, but the consequences for the whistleblower can be devastating and the personal rewards … are uncertain,” so the concept of means-ends rationality cannot explain their behavior.45 David Colapinto points out that, in his experience, “the number one thing a whistleblower wants is the problem [they have identified] fixed.”46 When lawyers forget this, problems are sure to develop.
Corporate defense lawyers are at significant risk for strategic error if they fail to understand the whistleblower’s world. Although corporate lawyers may be quick in other business law matters to threaten opponents with a variety of legal and practical consequences, such a strategy is likely to backfire when dealing with whistleblowers. In describing what they call the “irony of retaliation,” the authors of a prominent whistleblower study found that retaliation typically accelerated whistleblowing activity. Specifically, “[t]he more abuse the resisters faced, the more confirmed they became that active opposition was the only path to ending the chain of lawless acts.”47
Although a lawyer pursuing a strategy of retaliation might succeed in destroying the whistleblower’s life, the whistleblower will only fight on harder and longer. This ultimately does the client organization no good and seems not to deter other whistleblowers from acting. In the author’s view, as a former risk-management consultant to organizations across the country, corporate defense lawyers would better serve their clients by advising them to fix the problems the whistleblower has uncovered and simply let the whistleblower be.
For a whistleblower’s lawyer, forgetting the client’s motivations, the risks they are willing to take, and their ultimate goal can be catastrophic to the representation. For example, one of the whistleblowers interviewed for this article once had a lawyer who, against the whistleblower’s wishes, kept trying to settle the case for an immediate payout. The lawyer never understood that the whistleblower’s primary goal was to correct a harm, and thus the lawyer could never provide adequate representation.48
Similarly, a risk-averse lawyer may be unable to comprehend a whistleblower’s willingness to risk career, financial security, and more in the fight for the cause at issue. This may cause the lawyer to give the client advice that the whistleblower will reject outright.49 Yet, according to Colapinto, for lawyers who do come to understand whistleblowers, there can be tremendous benefits. “If you are looking for an area of law where you can make a difference,” he says, “where your client and your case can have positive social impact and create reform in a particular industry, whistleblowing is effective.”50
The whistleblower’s world is fraught with peril for everyone involved: the whistleblower, the organization, and lawyers on both sides. It involves complexity not only of law, but of motivation, risk potential, and the personal characteristics of whistleblowers. Lawyers entering the whistleblower’s world might be prone to believing and acting in accordance with erroneous myths with harmful results. Fortunately, the wisdom of whistleblowers themselves and the researchers who study them is available to anyone who seeks it.
Sample of Wisconsin Cases Illustrating Complexities of Whistleblower Practice
Joell Schigur was director of the Bureau of Public Integrity within the Wisconsin Department of Justice’s Division of Criminal Investigation. In that role, she sent an email to her supervisors stating her opinion that a departmental decision to provide security to the then-attorney general at a political event might constitute a violation of Wisconsin laws and regulations. Soon after, she was demoted. Her whistleblower claim failed when the Wisconsin Supreme Court determined that an opinion was not “information” as defined in Wisconsin’s public employee whistleblower-protection statute (Wis. Stat. §§ 230.80-.89), and even if it were, she would not have been eligible for whistleblower protection because her supervisors had already been aware of the information she disclosed.51
Timothy Repeti worked as a logistics coordinator for Sysco, a publicly traded company. He believed he had uncovered securities violations, reported his concerns to company management, and was eventually fired. His claim was dismissed because he filed it exclusively under a theory of wrongful discharge (public policy exception to at-will employment) rather than under the proper statutory remedy found in the Sarbanes-Oxley Act of 2002.52
Steven Albrechtsen filed a whistleblower complaint with the Wisconsin Personnel Commission (WPC) (which formerly handled whistleblower complaints; now, the Equal Rights Division does so). He then requested a stay in that administrative process and filed a federal whistleblower lawsuit. In that case, the opposing party moved to dismiss his state whistleblowing claims because the administrative process before the WPC represented the exclusive means for pursuing those claims. After the court dismissed the state claims, Albrechtsen tried to resume the administrative process before the WPC, but that body properly found that it had lost jurisdiction over the claim when Albrechtsen filed his federal lawsuit.53
Jane Hausman and Karen Wright worked at a nursing home, became concerned that residents were being mistreated, and reported their concerns to management. When nothing was done, they reported their allegations to an external regulator. Both Hausman and Wright were fired. Although the supreme court held that Hausman and Wright indeed had an actionable wrongful-discharge claim because they had an affirmative legal duty to report their concerns, it refused to adopt a broad whistleblowing exception to Wisconsin’s at-will employment doctrine, which generally allows employers to discharge employees "for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong."54
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What prompted you to attend law school? What’s the best part about it so far?
Long story short, in my former career in risk management consulting, I became aware of a situation that I felt I had a moral obligation to report outside of my company. Because of my former experience working with whistleblowers, I knew making that choice meant I would likely never work in my field again. Although I never even remotely considered a career in the law before these events, I can now honestly say becoming an attorney feels like what I was born to do.
One of the best parts of my experience so far has been getting involved with the U.W. Law School Wellness Coalition and the wonderful people at the State Bar’s Wisconsin Lawyers Assistance Program (WisLAP). Lawyers continue to suffer from high rates of mental illness and substance abuse, and it is incredibly inspiring to work with people who are striving to make our profession healthier, happier, and more effective. While it has been really refreshing to return to school, I’m so excited to join the bar and spend my days helping people!
edu wkramer wisc Will Kramer, Kasieta Legal Group LLC, Madison.
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1 Telephone interview with Dr. Fred Whitehurst (Aug. 28, 2017).
3 U.S. Dep’t of Justice Office of the Inspector Gen., An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory (2014).
4 “[W]histleblowers [are] incentivized by richer bounties and other awards….” Foley & Lardner LLP, False Claims Act & Whistleblower Defense, www.foley.com/false-claims-act/ (last visited Oct. 24, 2017).
5 “Disgruntled employees or former employees often file qui tam lawsuits to get even for wrongs they believe they have suffered or are experiencing at work.…” Jesse A. Witten & Patrick H. Thompson, Avoiding Qui Tam Lawsuits by Properly Handling Disgruntled Employees, J. Health Care Compliance, Sept.-Oct. 2015, at 31.
6 The author interviewed whistleblowers Bradley Birkenfeld, Dr. Fred Whitehurst, Jane Turner, and Robert MacLean; lawyers David Colapinto (Kohn, Kohn & Colapinto) and Elizabeth Hempowicz (Project On Government Oversight); and Project On Government Oversight investigator Daniel Van Schooten.
7 The author filed a whistleblower complaint with the Securities & Exchange Commission. He then provided information to the Milwaukee Journal Sentinel that has served as the basis for an ongoing investigative series into environmental and worker safety violations at industrial facilities in Wisconsin and around the country. See Raquel Rutledge & Rick Barrett, Burned: Chemicals Left in Barrels Leave Workers and Neighborhoods at Risk, Milwaukee J. Sentinel (Feb. 15, 2017). At the time of this writing, multiple state and federal regulators have substantiated many of the author’s allegations and continue to investigate these facilities; see updates.
8 Tad Vezner, The Open Case of Agent Turner, Pioneer Press (July 21, 2007).
9 Telephone interview with Jane Turner (Aug. 28, 2017).
10 Telephone interview with Robert MacLean (Sept. 29, 2017).
11 See Department of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015).
12 MacLean interview, supra note 10.
13 See David Kocieniewski, Whistle-Blower Awarded $104 Million by I.R.S., N.Y. Times (Sept. 11, 2012).
14 Telephone interview with Bradley Birkenfeld (Sept. 29, 2017).
15 Whitehurst interview, supra note 1.
16 Telephone interviews with Bradley Birkenfeld (Sept. 29, 2017), Fred Whitehurst (Aug. 28, 2017), Jane Turner (Aug. 28, 2017), and Robert MacLean (Sept. 29, 2017).
17 Philip H. Jos et al., In Praise of Difficult People: A Portrait of the Committed Whistleblower, 49 Pub. Admin. Rev. 552, 558 (1989).
18 Ethics Res. Ctr., Inside the Mind of a Whistleblower: A Supplemental Report of the 2011 National Business Ethics Survey 4-10, 14 (2012).
19 Ethics Res. Ctr., National Business Ethics Survey of the U.S. Workforce 29 (2014).
20 Myron Peretz Glazer & Penina Migdal Glazer, The Whistleblowers: Exposing Corruption in Government & Industry 206 (1989).
21 Jos et al., supra note 17, at 554.
22 C. Fred Alford, Whistleblowers: Broken Lives and Organizational Power 19 (2001).
23 David Maurer, Director, Homeland Sec. & Justice, U.S. Gov’t Accountability Office, Whistleblower Protection: Additional Actions Needed to Improve DOJ’s Handling of FBI Retaliation Complaints 1 (2015).
24 Turner interview, supra note 9.
25 See MacLean, 135 S. Ct. 913.
26 MacLean interview, supra note 10.
27 See Dee J. Hall, Wisconsin, U.S. Used Flawed Hair Evidence to Convict Innocent People, Wisconsin Ctr. Investigative Journalism (Apr. 30, 2017).
28 Whitehurst interview, supra note 1.
29 See Kocieniewski, supra note 13.
30 Birkenfeld, Whitehurst, Turner, and MacLean interviews, supra note 16.
31 Jos et al., supra note 17, at 555.
32 Birkenfeld, Whitehurst, Turner, and MacLean interviews, supra note 16.
33 Alford, supra note 22, at 33.
34 Al Louis Ripskis, quoted in Glazer & Glazer, supra note 20, at 206.
35 See Patrick S. Coffee, Managing the Threat of Whistleblower Claims, Wis. Law. (Oct. 2015).
36 See William S. Freeman, Successful Defense in the Age of the Whistleblower, Ass’n Bus. Trial Law. Rep., Summer 2011, at 1.
37 See The Network, Embracing Whistleblowers: Understand the Real Risk and Cultivate a Culture of Reporting 6-8 (2015).
38 Turner interview, supra note 9.
39 Whitehurst interview, supra note 1.
40 See Project On Government Oversight, Daniel Van Schooten (last visited Oct. 26, 2017).
41 Telephone interview with Daniel Van Schooten, Project On Government Oversight (Oct. 6, 2017).
42 Once again in the 2016-17 fiscal year, Wisconsin’s Office of Lawyer Regulation reported that lack of communication was among the most common grievances made in the state. Office of Lawyer Regulation & Bd. of Admin. Oversight, Regulation of the Legal Profession in Wisconsin: Fiscal Year 2016-2017 at 11 (2017).
43 Van Schooten interview, supra note 41.
44 Telephone interview with David Colapinto, Kohn, Kohn & Colapinto (Oct. 6, 2017).
45 Jos et al., supra note 17, at 558.
46 Colapinto interview, supra note 44.
47 Glazer & Glazer, supra note 20, at 136.
48 Telephone interview with whistleblower; identity not disclosed in the interest of the confidentiality of the attorney-client relationship.
49 Colapinto interview, supra note 44.
51 See Wisconsin Dep’t of Justice v. Wisconsin Dep't of Workforce Dev., 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545.
52 Repetti v. Sysco Corp., 2007 WI App 49, 300 Wis. 2d 568, 730 N.W.2d 189.
53 See Albrechtsen v. Wisconsin Dep't of Workforce Dev., 2005 WI App 241, 288 Wis. 2d 144, 708 N.W.2d 1.
54 See Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 571 N.W.2d 393 (1997) (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983)).