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Commentary

Unusual behavior can trigger employer’s FMLA obligations

As most employers know, the Family and Medical Leave Act (“FMLA”) obligates covered employers to give leave to qualifying employees with serious health conditions. And, as the Seventh Circuit put it in Aubuchon v. Knauf Fiberglass, GMBH, the “quid pro quo” for this obligation is the employee’s burden to give notice of the need for leave. To meet this burden, ...

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JURY NOTES FROM ELSEWHERE, OCTOBER 29

Jury talk seems to be everywhere lately. 1. When you can't handle the truth. "[T]here is enormous freedom in trying the impossible case," says Scott Greenfield of Simple Justice in "Loser Truth," a long post about what to do when the client insists on a story that no one is likely to believe. If that weren't useful enough, Gideon at ...

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State v. Hubbard: Defining

Read it aloud, and it sounds like any other Court of Appeals opinion: measured, calm, a little dull. But in that quiet tone, District II reached out last week to say that juries' questions about the law ought to be answered, if answers are out there. In State v. Hubbard, authored by Judge Snyder on October 24, the court reversed ...

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Signs that a company has been ripped off

How would you know if your company was being looted by a dishonest employee? Most companies miss all of the warning signs that could help stop a fraud early. The Association of Certified Fraud Examiners reports that the average fraud scheme within a company lasts 18 months. That’s one year-and-a-half that one or more employees are stealing from the company ...

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ABA opinion is welcome statement on collaborative divorce

Earlier this year, an ethics opinion by the Colorado Bar Association sent shock waves through the collaborative divorce movement. Now, a formal opinion by the American Bar Association Standing Committee of Ethics and Professional Responsibility sets the collaborative world at ease. Collaborative divorce is a settlement-based methodology that has exploded in popularity over the last several years. In a collaborative ...

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What They'll Never Tell You

Good lawyers know how much you can learn about jurors if you ask the right questions in voir dire. Really good lawyers know how much you'll never learn, no matter how perfect your questions are. Often — maybe always — the experiences that most shape our personalities and attitudes are our secrets. "We all carry a secret that would break ...

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When is a harassment complaint not a harassment complaint?

The Seventh Circuit recently decided an interesting same-sex harassment case that addressed the question of when an employer is put on notice of potential workplace harassment. In Bernier v. Morningstar, Inc., Todd Bernier sued Morningstar, under Title VII, claiming sexual harassment and retaliation. More specifically, Bernier claimed that Morningstar not only did not properly respond to his internal complaint of ...

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Anne Reed Bio

Anne Reed is a trial lawyer and jury consultant in Milwaukee, Wisconsin. She is a shareholder at Reinhart Boerner Van Deuren, SC, where she represents business clients in litigation, and assists lawyers preparing for trial through Reinhart's Trial Science Institute. For more of her blog postings about juries visit Deliberations.

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Gregg Herman Bio

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman's column focuses on appellate decisions affecting the practice of family law in Wisconsin.

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Nate Cade Bio

Nate Cade is a partner at Michael Best & Friedrich practicing in litigation where he is a member of the firm's Tort Liability Practice Group. Cade is a member of the State Bar Professional Ethics Committee and has served as chair of that committee. He also served on the state Supreme Court’s Ethics 2000 Commission.

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Tracy L. Coenen Bio

Tracy Coenen, CPA, CFF is president of Sequence Inc., a forensic accounting firm with offices in Milwaukee and Chicago. She can be reached at 414-727-2361 or tracy@sequenceinc.com.

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Legal Technology Bio

Technology consultants Joseph Ulm and John Wilets of Information Technology Professionals, LLC, in Milwaukee offer their insights on the technology issues facing lawyers today.

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Scott Lewis Bio

Scott Lewis, of the Racine city attorney's office, is a former police legal advisor and former public defender. In addition to his J. D., he holds a Masters of Science in Criminal Justice degree from the University of Alabama, Tuscaloosa.

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Whistleblowers and Sarbanes-Oxley

Tracy L. Coenen One of the major selling points of the Sarbanes-Oxley Act of 2002 was the protection for whistleblowers. The legislation required public companies to put into place “anonymous reporting mechanisms” (like hotlines) so that employees could report suspected fraud without fear of reprisal. It further required companies to protect employees from retaliation when they report suspicions of financial ...

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Cade seeks readers’ responses to ethical dilemmas

Nate Cade With the Labor Day holidays behind us (and with my editor bugging me about a column), I’ve been thinking about what scandalous things I should write about for this month, and, on Monday it hit me like a ton of bricks. I think I’ll do a survey, actually two surveys. But first, some background. There is an ethicist ...

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Family law attorney provides fresh Frisch observations

Gregg Herman This is the second of two articles discussing the recent state Supreme Court opinion in Frisch v. Henrichs, 2007 WI 102, which reversed the published decision of the District II Court of Appeals concerning the remedial contempt powers of the circuit courts. In the first article, I summarized the opinion of the majority of the high court as ...

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Court upholds contempt for failure to provide info

Gregg Herman May a circuit court use its remedial contempt powers to craft a remedy, where a party fails to provide tax returns and income information in a timely manner as required under statute, a divorce judgment, and a court order, but then the party produces the information just before the contempt hearing? On July 17, 2007, the Supreme Court ...

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A look at the subprime mortgage problem

Tracy L. Coenen The recent focus on the near-collapse of the subprime mortgage market has raised some interesting issues regarding fraud. Some borrowers are unable to meet their obligations due to legitimate reasons, while other are defaulting because of fraud committed in the process of getting the mortgage. Either way, the high number of defaults on subprime mortgages is rocking ...

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Reflections on Sarbanes-Oxley Act of 2002

Tracy L. Coenen It’s been five years since the passage of the Sarbanes-Oxley Act of 2002, and for many of us, it seems like it’s been around for a lifetime. While the intent behind the legislation was good, it has been extremely costly, and some wonder if the benefits have justified the high price tag. The legislation was intended to ...

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Standards of review in state court of appeals

Those practitioners who do not routinely handle civil appeals may believe that an appeal gives them the opportunity to retry their case before the Wisconsin Court of Appeals. An appeal’s likelihood of success, however, depends in large part on the applicable standard of review — the extent the appellate court will defer to the trial court’s determination. That, in turn, ...

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Child representation in a perfect world

Gregg Herman This is the last in a series of articles examining the role of representing children in family court actions. In the first article, I discussed the dispute between the ABA Family Law Section and the ABA Litigation Section regarding a lawyer serving in a non-traditional role by representing a "concept" of best interests, rather than representing a client. ...

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Selling law firm stock would create ‘ethical pitfalls’

Nate Cade Writing this month’s column has not been easy. Yes, it is the summer, and I certainly could use my desire to play golf (really, really bad golf) as an excuse for not getting this column out as fast as I could. But in reality, my tardiness as been over my fascination with money — a lot of money. ...

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Selling law firm stock would create ‘ethical pitfalls’

Nate Cade Writing this month’s column has not been easy. Yes, it is the summer, and I certainly could use my desire to play golf (really, really bad golf) as an excuse for not getting this column out as fast as I could. But in reality, my tardiness as been over my fascination with money — a lot of money. ...

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What’s the proper role of the attorney serving as GAL?

The guardian ad litem: A potted plant? Gregg Herman A social worker/ psychologist? A lawyer advocating for children’s wishes, or the children’s best interests, or both? Much ink has been spilled over the GAL’s role, and much real and virtual debate has taken place. This is the third in a series of articles discussing that role. In the first article ...

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A correlation between gambling and fraud?

Tracy L. Coenen Employee fraud always has a “cause.” The “cause” is the motive, desire, or need that is being filled by the theft from one’s employer. A need doesn’t have to be a true need in order for fraud to occur, but can be a perceived need on the part of the thief. One common impetus for fraud is ...

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Representing the child’s best interest, not the child

Gregg Herman Last week, I discussed a meeting which occurred in April 2007, during the spring meeting of the ABA Family Law Section in Monterey, Calif., when groups of lawyers from the ABA Family Law Section and the ABA Litigation Section met with representatives of the National Conference of Commissioners on Uniform State Laws (NCCUSL) to discuss the role of ...

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A correlation between gambling and fraud?

Tracy L. Coenen Employee fraud always has a “cause.” The “cause” is the motive, desire, or need that is being filled by the theft from one’s employer. A need doesn’t have to be a true need in order for fraud to occur, but can be a perceived need on the part of the thief. One common impetus for fraud is ...

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Representing the child’s best interest, not the child

Gregg Herman Last week, I discussed a meeting which occurred in April 2007, during the spring meeting of the ABA Family Law Section in Monterey, Calif., when groups of lawyers from the ABA Family Law Section and the ABA Litigation Section met with representatives of the National Conference of Commissioners on Uniform State Laws (NCCUSL) to discuss the role of ...

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Representing children in family law cases

Gregg Herman In April 2007, during the spring meeting of the ABA Family Law Section in Monterey, Calif., a remarkable event occurred: Opposing groups of lawyers met for a full day to discuss rules for serving as a representative for children in custody, abuse and neglect cases. Although the role of a guardian ad litem, or GAL, is settled in ...

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Decision contains valuable lessons on maintenance

Gregg Herman As regular readers of this column know, I am sometimes mystified by the decisions of the Publication Committee and wish there were more input by practitioners in them. Such was the case initially upon reading Jantzen v. Jantzen, No. 2006AP1690 (Wis. Ct. App. Jun. 19, 2007) (recommended for publication). I soon changed my mind; the opinion contains several ...

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