June 25, 2025 – The State Bar of Wisconsin’s Annual Meeting & Conference last Thursday and Friday in Madison offered a day and a half of CLE programs and featured panels that gave practical advice and cutting-edge legal knowledge to the nearly 400 lawyers, judges, speakers and vendors in attendance. If you missed it, here are a few interesting insights.
Collaborative AGs
In reviewing about a dozen cases in which Wisconsin has joined other states in litigation against the federal government, Attorney General Josh Kaul described the characteristics and strengths of “a flavor of multistate litigation.”
Kaul focused his discussion on lawsuits involving the federal government, in contrast to, for example, “more routine cases,” such as multistate consumer protection cases against a company.
For the Attorney General’s office to decide to join a case in multistate litigation, at minimum, Kaul said, the “policy harms Wisconsinites” – for which there may be disparate opinions – and “a strong legal basis for a challenge.”
T.R. Williams (center), pictured here with her parents, received the State Bar Diversity & Inclusion Trailblazer Award, at the Member Recognition Celebration on Thursday evening. For more photos of the event,
see the album on the State Bar's Facebook page.
“What these are, essentially, are cases where there’s an impact on more than one state,” Kaul explained. “It’s usually a nationwide impact, and states will work together to pool resources and collaborate and that can take place in a number of contexts.”
Nationwide collaboration has special benefits, Kaul said, especially in the current challenges. “The executive branch has been rapidly making changes, very rapidly and often without a lot of communication,” unlike the more predictable pattern in promulgating an administrative rule.
“There is a lot of change happening rapidly in a way where gathering facts and just trying to figure out what is happening around the country and with policy changes is itself an important task,” Kaul said. “That is one of the benefits to having multiple states working together is we have folks who are getting information from people that they work with in states around the country.”
Daniel Kelly, the former Wisconsin Supreme Court justice (second from left), speaks during the closing plenary. With him, from left, are moderator James Goldschmidt, Prof. James Speta, and Judge Shelley Gaylord (retired).
The End of Deference?
A panel of jurists and professors closed the AMC with challenging opinions about the shift in judicial deference to administrative agency determinations of law seen first in Wisconsin in
Tetra Tech EC, Inc v. Wisconsin Department of Revenue,
2018 WI 75, and in the newer
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024).
Although both cases overturned longstanding practices of administrative deference, they did so for different reasons. The federal change came under a reading of the Administrative Procedure Act.
In Wisconsin, the change “repatriated” constitutional judicial authority to the judiciary, explained Daniel Kelly, the former Wisconsin Supreme Court justice who wrote the
Tetra Tech decision.
Retired Dane County Circuit Court Judge Shelley J. Gaylord, who has heard cases challenging administrative decisions, agreed. In her conversations with other circuit court judges, they say that the change from
Tetra Tech isn’t a big deal.
Federal administrative practice is evolving under
Loper Bright. Briefs spend more space on the type of question, between interpretation and sufficient fact-finding, and the standard of review, said Professor James B. Speta, Northwestern Pritzker School of Law in Chicago.
A Friday CLE session included "Demystifying Reverse Mortgages," with speakers Mark Johnson (right) and Noe Rincon (left).
Ethics Hotline
Tim Pierce and Sarah Peterson started the second day with examples of the types of calls they receive on the Ethics Hotline, which the State Bar offers as a member benefit.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
If a lawyer has an ethical question, he or she can call the Ethics Hotline. The conversation is confidential, and the lawyer needs to provide facts, not hypotheticals, to help in getting a proper ethical guidance.
Conflicts of interest under the rules of professional conduct between prospective, current, and former clients can happen easily, especially in smaller communities.
The challenge for the lawyer is that once “you learned something important” about a prospective client, that information limits what you can do, Pierce explained.
If that prospective client doesn’t hire you, but that person’s adversary wants your services, the information gained from the earlier prospective client conflicts you out. One could seek a waiver from both parties, but it’s not likely that both will agree, Pierce said.
As practical advice, Dean R. Dietrich of Weld Riley, S.C., in Wausau, who has knowledge of ethical responsibilities, said that after calling the hotline, the lawyer should draft a memo to the file describing the conversation and advice received. This memo will help if a complaint arises later.
The State Bar celebrated 30 years working with Bultman Financial.
Business Litigation
In discovery involving a corporate entity, the panel on “Handling Complex Civil and Commercial Cases: Best Practices for Judges and Lawyers – Session One,” recommended using the process in
Wis. Stat. section 804.05(2)(e), which is similar to Federal Rule of Civil Procedure 30(b)(6).
In these depositions upon oral examination under the Wisconsin rule, the organization designates an organizational leader, “or other persons … to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.”
The process makes it more likely to find a witness who is knowledgeable about the issues, reviewed the documentation, and knows the corporation, explained Matthew W. O’Neill of Fox, O’Neill & Shannon, S.C. of Milwaukee.
AMC opened with a visit from the U.W. Band.
It is like interrogatories, only better, without the numerical limits, with an individual who is charged with knowing everything about the corporation, explained Terry E. Johnson of von Briesen & Roper, s.c. of Milwaukee.
“You’re talking to the party about specific subjects where they are required, they can’t just give you what their memory is today. They have to prepare and come in and give you the answer and they’re stuck with the answer,” Johnson said.
Electronically stored information (ESI) presents a significant challenge during discovery in complex business litigation.
“Don’t let any discovery issues fester,” said Waukesha County Circuit Court Judge Michael J. Aprahamian. As that applies to ESI problems, such as on a motion to compel, “bring an expert that actually can explain to me what’s going on.”
Someone who can say, for example, “here’s the problem we’re having with our computer systems. We have this computer system from 1995 to 2005 and then we got a new one and they’re not talking together very well. And here’s what we can do to solve it.”
“That’s going to go a long way for me, instead of some lawyer trying to explain something to a poli sci major.”
Attendees had a chance to network at lunch on Thursday. Photo: Kara Olson.
Receivership Pendente Lite
St. Croix County Circuit Judge R. Michael Waterman in Session 2 of the complex litigation series, introduced an overlooked form of receivership under
Wis. Stat. section 813.16, known as receivership pendente lite – a receivership during a pending lawsuit.
Such receiverships may be useful in business matters or even a divorce in which the business is a marital asset. The receiver is a neutral whose duties can vary in scope as needed to protect property that’s the subject of litigation, Waterman explained.
The challenge is that the statute is brief with little case law, and principles of equity and fairness govern, he said.
“Don’t always jump to injunctive relief. Consider a receivership because it may provide the same type of relief that you’re looking for but in a much more flexible and manageable format.” Waterman concluded.
The State Bar Nonresident Lawyers Division meets in person each year at the AMC. They thanked outgoing NRLD president Jennifer Thomas (front row, center) with their President's Award for her outstanding service. Photo: Kara Olson.
Mediation As Discovery
Mediation “is an excellent discovery process,” said Administrative Law Judge Lisa F. Kinney of the Wisconsin Division of Hearings and Appeals. Parties “discover a lot of information during the course of mediation.”
Kinney keeps track of her “failure rate” in mediations, which she calculates at 14%. But the results the day of the mediation don’t tell the whole story.
“If I’ll pull the file then … six months down the line, they have settled it, … I feel that’s still a success in the mediation column … because we set the building blocks to a point where the parties were able to then ultimately reach a resolution, even though, maybe I couldn’t seal the deal on that particular date.”
The Wisconsin Supreme Court honored outgoing State Bar Executive Director Larry Martin at the Board of Governors luncheon. From left: Wisconsin Supreme Court Chief Justice Ann Walsh Bradley, Director of State Courts, Hon. Audrey K. Skwierawski, and Martin.
Appellate Briefs
The panel in “Next-Level Appellate Briefs: Framing the Issues on Appeal” agreed that in writing a brief, the appellate lawyer should understand judges’ time limitations.
“The most important person is my client and the second most important is the judges, and so I have to respect their time,” said Joseph A. Bugni, a criminal defense lawyer with Hurley Burish, S.C. in Madison.
Critical to that goal, the brief’s issue statement may work best if it includes the critical facts, but only the facts necessary to help the judge know what is important.
“We’re a very high-volume court,” said Wisconsin Court of Appeals Judge Thomas M. Hruz. Although each district may vary in how they resolve cases, as an error correcting court, “[w]e decide cases on the narrowest grounds we can.” It’s also how the panel can build consensus.
Access Select CLE from the Annual Meeting & Conference
Conference attendees can attend the first two sets of recorded AMC webcasts as part of their registration package. That’s up to 7.5 additional credit hours!
Webcast replays will be offered the weeks of July 21 and Aug. 18. Complimentary registration will be coming soon. Attendees may
contact customer service when replays become available.
Those who did not register can access AMC sessions at the listed tuition rate.
Nonprofit Statutes
For lawyers serving on a nonprofit board or in forming a nonprofit, paying attention to statutory defaults is critical, John R. Decker of the Dane County Historical Society in Madison said in “Advising the Nonprofit Board – An Introduction.”
For board members, “the Wisconsin Statutes are a novelty. Board members just don’t consider them. Many of them don’t know that they exist.”
“And so, from time to time I have found it necessary to say ‘Oh, well, we’ll have to take a look at the articles and bylaws on that because if we haven’t said something in the articles or bylaws to the contrary, state law applies. The legislature just gives us the answer.’ And that comes as a surprise to people particularly when we don’t like the answer.”
Save the Date for AMC 2026 in La Crosse
The 2026 Annual Meeting & Conference will take place June 11-12, 2026, in La Crosse.
