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Is Wisconsin killing the dead man’s statute?

By: Erika Strebel, [email protected]//October 24, 2016//

Is Wisconsin killing the dead man’s statute?

By: Erika Strebel, [email protected]//October 24, 2016//

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Is the state’s dead man’s statute dead?

The Wisconsin Supreme Court on Monday heard testimony from practitioners over whether the court should repeal the rule.

The dead man’s statute prevents the admission of testimony about a transaction if one of the parties involved has died. The rule stems from the common-law notion that false testimony can more easily get into court if one of the people most capable of disputing it is dead.

Dead man’s statutes are now often considered antiquated, leading many states either to repeal or amended them.

In Wisconsin, the proposal to repeal the statute is being brought forward by the Judicial Council, which advises the court on state court-system procedures. Staff Attorney April Southwick and Attorney Tom Shriner made the council’s case on Monday.

Calls for repeal are meanwhile also coming from Jonathan Ingrisano and Jonathan Smies, both trusts and estates attorneys at Godfrey and Kahn. Ingrisano and Smies noted that the dead man’s statute tends to lead to greater costs and uncertainty for all parties. Lawyers, they explain, spend a great deal of time trying to figure out if the dead man’s statute applies in a particular case, if a party will invoke it, and — if so — how to work around it or use it to a client’s advantage.

“Uncertainty is in no one’s interest,” Smies said.

One question the justices repeatedly asked Smies, Ingrisano, Southwick and Shriner was why the Wisconsin State Bar’s probate section had not chosen to weigh in on the topic. The State Bar’s Board of Governors has declined to take a stance on the petition.

The justices got their answer from Jeff Goldman, a governor as well as a trusts and estates attorney at DeWitt Ross & Stevens.

He said the proposal had struck him as being noteworthy enough that he brought it up with members of DeWitt’s probate section. But because many of them are involved only with the transactional and planning aspects of the law, they were not familiar with arguments surrounding the dead man’s statute.

Witness competency, Goldman said, usually arises in probate litigation and not during transactions or planning. Goldman does planning as well as litigation. That, he said, is not a common combination of expertise for a probate attorney.

The repeal of the dead man’s statute was just one of the few changes the justices heard about at Monday’s public hearing. Also on the agenda was a proposal to repeal a statute that appears to create a privilege for students and deans. That proposal is paired in a single petition with the separate one to repeal the dead man’s statute.

One question voiced by some of the justices was whether they have the ability to do what the petitions were asking them to do. Justices Rebecca Bradley, Ann Walsh Bradley and Shirley Abrahamson, as well as Chief Justice Pat Roggensack, all asked whether decisions to repeal either the dead man’s statute or the privilege for deans and students would amount to substantive changes that are beyond the court’s authority.

Generally, the justices can make changes only to statutes involving procedures rather than changes that affect the rights of parties. The latter is reserved for the state Legislature.

No practitioners testified Monday about the second petition for changes. That petition involves making several changes to the rules of evidence, including creating a bias rule and modifying another rule involving witnesses’ prior criminal convictions.

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