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Attorneys weigh in on proposed repeal of dead man’s statute, changes to rules of evidence

By: Erika Strebel, [email protected]//October 11, 2016//

Attorneys weigh in on proposed repeal of dead man’s statute, changes to rules of evidence

By: Erika Strebel, [email protected]//October 11, 2016//

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Government and private-practice lawyers are weighing in on petitions calling for the elimination of Wisconsin’s dead man’s statute and changes to the state’s rules of evidence.

The two petitions were put forth by the Wisconsin Judicial Council, which suggests changes involving the court system. The first calls for repealing the state’s dead man’s statute, which prevents witnesses from testifying in civil cases about communications they had with a person who has since died.

The second petition would institute a so-called bias rule and make other changes to the state’s rules of evidence.

The justices have scheduled a public hearing on the two petitions to start at 9:30 a.m. on Oct. 24 in the state Capitol’s Supreme Court Room.

Jonathan Ingrisano and Jonathan Smies, two attorneys from Godfrey & Kahn, have come out in favor of repealing the state’s dead man’s statutes. In a recent letter to the court, they listed three ways that any decision to retain the dead man’s statutes could prove harmful.

Smies and Ingrisano argued that the statute will become an ever-greater burden to state courts in coming years. This is largely because trust and estate litigation is expected to become increasingly more common.

The attorneys also cited studies predicting an increase in asset transfers to subsequent generations. They also noted that dementia is expected to become more common and that wills are thus likely to be subject to more legal challenges.

Second, they contended the state’s dead man’s statute puts upward pressures on litigants’ fees. When the statute is involved in a case, lawyers often find themselves spending additional time on researching, strategizing and litigating.

Third, Smies and Ingrisano noted that the dead man’s statute tends to fall most heavily on people who have relatively little money and are thus unlikely to be able to afford a lawyer.

Ingrisano and Smies will be testifying at the public hearing for the petition.

Meanwhile, comments on the petition to change the state’s rules of evidence came from the Wisconsin District Attorneys Association, also known as the WDAA. The WDAA’s board reviewed the petition and supports it, according to a letter from Jacalyn Le Bre, association president and Manitowoc District Attorney.

The State Bar, for its part, has taken no position on the matter.

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