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High court to hold hearings on dead man’s statute, changes to rules of evidence

The Wisconsin Supreme Court is preparing to take up long-sought changes to the state’s so-called dead man’s statutes, which prevent witnesses from testifying in civil cases about communications they had with a person who has since died.

The statutes have their origin in the common-law belief that estates are best protected from fraudulent claims if witnesses are barred from testifying about communications they had with someone who is now dead. Without the statutes in place, some fear, false testimony could be submitted more easily because there would be no one around to dispute it.

So far, about 37 states have either eliminated or modified their dead man’s statutes, or else never had them in the first place. Of the remaining states that do have the statutes, most have limits or exceptions.

Wisconsin’s dead man’s statutes, which were codified in 1858, are among the most expansive in the country. Calls for repeal have been heard for decades. Opponents of the current statutes say they can prevent claimants from providing testimony that is needed to prove their case.

The petition calling for the repeal of Wisconsin’s dead man’s statutes is not the only proposed change to the state’s evidentiary rules that the Supreme Court is preparing for. A second petition is seeking various changes ranging from one meant to make Wisconsin mirror the federal government’s rules for handling evidence to another concerning the codification of case law.

The Judicial Council, which is charged with suggesting changes to the state court system’s procedures, filed both petitions in April. The state justices now plan to hold open hearings on the requests and solicit public opinion, although official meeting dates have yet to be scheduled.

The justices last week also voted 5-2 to postpone a vote on two petitions involving the transfer of child-support cases from state circuit courts to tribal courts. One petition calls for a review of the statute governing the transfers, while the second asks the court to eliminate the statute completely. The justices said they will vote on the matter when they meet in June.

The weeks leading up to the vote will be used by Justice Michael Gableman to meet with the tribal courts to discuss the proposal. Justice Rebecca Bradley, meanwhile, plans to use the time to review the request, which was presented to the court before her appointment to the bench last year and subsequent election this year.

The justices last week also approved the Wisconsin State Bar’s petition to use the American Bar Association’s model ethics rules as the basis for a revision of Wisconsin’s rules of ethics for attorneys. Among various other matters, the proposed changes would affect communications over social media.

The high court also voted 4-3 last week to deny a petition to clarify Wisconsin’s rules of professional conduct to give attorneys more guidance over what they can legally say when they want to discuss or write about public aspects of their closed cases.

Justices Shirley Abrahamson, Ann Walsh Bradley and David Prosser opposed dismissing the petition.


About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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