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Highway Case Analysis

The court’s musings about punitive damages may be insightful, but their utility in future cases is questionable. For example, it is not clear how, or even whether, a defendant’s trial tactics could be presented to a jury. State Farm v. ...

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Fee estimate proposal generates opposition

“I want lawyers put on notice of a potential significant change on something they do every day — set fees.” Chief Justice Shirley S. Abrahamson Wisconsin Supreme Court A petition that would require attorneys to provide written estimates of total ...

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Big firms expand into Waukesha

“What I learned was that Waukesha has a really vital, distinct business community, which is very entrepreneurial and growing quickly, with expanding legal needs, and they are looking for more sophisticated legal help than was traditionally needed out there. I ...

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Repeated Acts Case Analysis

The decision in this case brings to light two important issues that ultimately will have to be resolved, but would not arise if sec. 948.025(3) was more similar to the California statute that the court cited for guidance — waste ...

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Court, county join in budget effort

A budget row between Milwaukee County and the court system there evolved this month into a broader campaign that is headed for the State Capitol. Court and county officials resolved, at least for now, court leaders’ objections to County Executive ...

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Cross-examination foils future meds

“Dr. Hanacik’s express concession that he could not give an opinion to a reasonable degree of chiropractic certainty on Mrs. Weber’s future health-care expenses negated his earlier testimony where he purported to give such an estimate.” Judge Ralph Adam Fine ...

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Medical Expenses Case Analysis

There are two ways to interpret this case: (1) it is incompatible with the Supreme Court’s decision in Bleyer v. Gross, 19 Wis.2d 305, 120 N.W.2d 156 (1963), and entitled to no precedential value; or (2) it is an object ...

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Vicarious liability of franchisors limited

“The fact remains that DRI, and not Arby’s, had the discretion to set the terms and conditions of employment. Therefore, the operational standards are not a sufficient basis for imposing vicarious liability on Arby’s for DRI’s negligence.” Hon. Charles P. ...

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Franchisors Case Analysis

The questions that Judge Lundsten asks are not answered by the majority opinion, and when such issues arise in the future, the majority opinion sends markedly mixed signals. Consider the food poisoning hypothetical raised by Lundsten, or the Oregon case, ...

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Divided court approves new GAL requirement

“It’s not an onerous situation imposed upon attorneys who engage in this behavior. We’ve considered that already with the appointment of guardians ad litem for children.” Hon. James Mason, Wood Court Circuit Court A divided state Supreme Court has initially ...

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No recovery for slip and fall at arena

“How could the arena possibly have patrolled the entire facility to be on guard for something such as a spilled french fry?” Hon. Gregory A. Peterson Wisconsin Court of Appeals The Strack exception does not permit an arena to be ...

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Mode of Operation Case Analysis

The majority decision can be viewed as a silent but impermissible attempt to recreate the abolished doctrine of assumption of risk. As the dissent notes, the facts of the case fit very comfortably within the three elements for application of ...

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Bablitch offers tips for lawyers

Newly-retired state Supreme Court Justice William A. Bablitch is carving out a new niche for himself offering appellate tips to lawyers at Michael Best & Friedrich LLP, his new firm, as well as to those outside his firm. Speaking recently ...

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Both breath, blood tests cannot be taken

“Unless law enforcement has some basis for believing the first test is unreliable or unusable, the exigent circumstances permitting law enforcement to conduct a forcible blood draw no longer exist.” Hon. Richard S. Brown Wisconsin Court of Appeals Once an ...

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Blood Draw Case Analysis

Two aspects of the case are particularly noteworthy. First, the court’s reasoning creates the anomalous result that, in most cases, if a drunken driving suspect is given a breath test and tests over the legal limit, he cannot be subjected ...

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Commitment Case Analysis

The decision in this case is suspect, and may not be reconcilable with the Supreme Court’s holding this past summer in State ex rel. Marberry v. Macht, 2003 WI 79, 262 Wis.2d 720, 665 N.W.2d 155. Given the confused state ...

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Highway Case Analysis

Although the public policy analysis by the court is reasonable, it is not the only reasonable interpretation. Further-more, it is irrelevant, because the court’s discussion of the definition of “highway” is contrary to the plain language of the statutes. Thus ...

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Municipal employees can sue co-workers

Hon. Ted E. Wedemeyer Jr. A municipal employee who receives worker’s compensation benefits may also file suit against a co-worker when the municipality is obligated to pay judgments against that co-worker pursuant to a collective bargaining agreement or a local ...

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Co-Workers Case Analysis

Parties should not rely on this decision until the Supreme Court has the opportunity to review it, be-cause there it will almost certainly be reversed if reviewed. This is evident from comparing the language in the Milwaukee ordinance with the ...

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Board opposes fee rules change

The State Bar of Wisconsin Board of Governors gave a resounding “no” to a controversial measure designed to curb fee-related ethics complaints at its Sept. 20 meeting in Madison. The proposal, from the Wisconsin Courts Fee Arbitration Study Committee, calls ...

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Immunity applies to public parking lots

“Public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.” Hon. Richard S. Brown Wisconsin Court of Appeals A public parking lot is a ...

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Court to consider duty to insure contractor

The state Supreme Court is considering whether or not an insurer has to cover a claim against a contractor for property damage, which arose out of negligent work performed by a subcontractor, despite a CGL policy’s contractual liability exclusion. According ...

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Judge can’t deny motion to dismiss

“The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Hon. ...

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Three UIM cases remanded to appeals court

The Wisconsin Supreme Court on Sept. 15 vacated three recently published decisions of the court of appeals, all concerning underinsured motorist (UIM) coverage: Gohde v. MSI Ins. Co., 2003 WI 69, 261 Wis.2d 710, 661 N.W.2d 470; Dowhower v. Marquez, ...

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Vacate Case Analysis

On remand of these three cases, two of the court of appeals’ decisions were so deficient, that even if Folkman was not decided the way it was, the court of appeals would have to virtually start over from scratch; the ...

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Appeal can be dismissed at any time

The government can move to dismiss a criminal appeal before the filing of any briefs, but the defendant is not bound by the time limits of Rule 27, the Seventh Circuit held on Sept. 9. D’Marcus Mason was sentenced, in ...

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Appeal Case Analysis

It should be expected that, in light of this decision, it will become standard operating procedure for prosecutors to file motions to dismiss before the appellant’s brief deadline, whenever a plea agreement contains a waiver of the right to appeal. ...

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