Please ensure Javascript is enabled for purposes of website accessibility
Home / Legal News/page 580

Legal News

Discussion of med mal caps intensifies

Legislator prepares cap bill A state legislator is getting ready to introduce legislation that would reestablish caps for noneconomic damages in medical malpractice cases. The governor vetoed an earlier attempt to put caps back in place after the Supreme Court found the existing cap statute unconstitutional in a decision released last July. Rep. Curt Gielow (R-Mequon) hopes to draw enough ...

Read More »

Escrow Case Analysis

Although one would hope that facts such as these never repeat themselves, and the case will never be cited as directly applicable precedent; nevertheless, the case is valuable as the first published Wisconsin case discussing the duties of escrow agents toward third parties. Unfortunately, the analysis conflates two separate theories of liability: breach of fiduciary duty; and common law negligence. ...

Read More »

Escrow agent lacks duty

What the court held Case: Black v. Metro Title, Inc., No. 2005AP1423. Issue: Does an escrow agent owe a duty to an incidental beneficiary? Holdings: No. An escrow agent is an agent and fiduciary of only the parties to the escrow. Counsel: Brad L.F. Hoeschen, Milwaukee, for appellant; John G. Goller, Milwaukee, for respondent. An escrow agent has no duty ...

Read More »

Labor Logic

Sidley & Austin age discrimination case takes another step forward

Read More »

OWI Case Analysis

An important question the decision leaves unanswered is whether a defendant could be convicted of operating while intoxicated if, although he never drives the vehicle or starts the engine, he does place the key into the ignition. In an unpublished decision of the court of appeals, the court held that a defendant could be convicted, even though the engine was ...

Read More »

Sitting in running vehicle is not ‘operating’

The Supreme Court held on Feb. 14 that, where no evidence was presented that a defendant physically activated or manipulated the controls of a vehicle, she cannot be convicted of operating while intoxicated. On May 25, 2003, Kristin Haanstad met Timothy Satterthwaite at a bar around 7 p.m. While at the bar, Haanstad consumed alcoholic beverages. Sometime between 11:30 p.m. ...

Read More »

Court launches site with appeal

Attorneys can use the court system’s Wisconsin Supreme Court and Court of Appeals Access (WSCCA) Web site to track appellate cases as they move through the system. Visit the Web site. The Wisconsin court system has just made it easier for lawyers to keep track of the appellate cases moving through the system. Following a hiatus, the courts relaunched a ...

Read More »

Disparity Case Analysis

It is important to note that, although a district court’s refusal to impose a sentence below the guidelines because of disparity between co-defendants is not grounds for reversal on appeal, it is possible that defendants can still contend in the trial court that it is unreasonable to give a higher sentence to a less culpable defendant. The court stated that, ...

Read More »

Sentence does not indicate disparity

What the court held Case: U.S. v. Boscarino, No. 05-2657 Issue: Is disparity between co-defendants’ sentences grounds for finding the sentence unreasonable, where the disparity resulted from one defendant’s cooperation with the government? Holdings: No. A sentence within a properly calculated guideline cannot be unreasonable by reference to 18 U.S.C. 3553(a)(6). The Seventh Circuit held on Feb. 8 that a ...

Read More »

Labor Logic

Notice pleading: How to plead the minimum in federal employment claims

Read More »

Other Insurance Case Analysis

Although the court affirmed the court of appeals decision, the remedy the court adopted does not sweep as broadly. The court of appeals held that, because Progressive’s other insurance clause fails to provide uniform coverage to named insureds and occupants, the clause is void and unenforceable. The Supreme Court, on the other hand, merely excised the offending language, but allowed ...

Read More »

‘Other insurance’ clause unenforceable

What the court held Case: Progressive Northern Ins. Co. v. Hall, No. 2004AP688. Issue: Can the "other insurance" clause in an automobile policy provide primary uninsured motorist coverage for the named insured, but only excess coverage for occupants? Holdings: No. Section 632.32(3)(a) requires that the coverage be the same. Counsel: Rick E. Hills, Michelle M. Stoeck, Waukesha, for appellant; Stuart ...

Read More »

China Practice

As China continues to enter the world market, more Wisconsin companies are looking at business ventures there. Those business activities mean opportunities for the law firms representing state manufacturers and entrepreneurs. Many middle-market manufacturers are being drawn toward China as the larger multi-national corporations they supply establish overseas operations. The desire to protect patents and copyrights in China also is ...

Read More »

Identification Case Analysis

The decision fails to provide much guidance, either for cases pending now in which the defendant seeks to present expert testimony, or for older cases in which decisions not to admit evidence attacking eyewitness identifications are being reviewed. The court certainly suggests that expert testimony should always be admissible now. The court repeatedly uses the phrase, “in 2002,” to suggest ...

Read More »

Court denies new trial in ID case

What the court held Case: State v. Shomberg, No. 2004AP630-CR. Issue: Was it an abuse of discretion, in 2002, for the trial court to refuse to allow a defendant to present expert testimony that eyewitness identifications re unreliable? Did the exclusion violate the defendant’s right to present a defense to disallow the testimony? Holdings: No. In 2002, the trial court’s ...

Read More »

Sanctions Case Analysis

The court’s decision — that sanctions can only be imposed under 28 U.S.C. 1927 based on an attorney’s conduct during litigation — is the correct one, for the reasons given by the court. Without “proceedings” and a “case” pending, there is nothing for a party to vexatiously multiply. Nevertheless, it would have been helpful had the court at least addressed ...

Read More »

No sanctions for conduct prelitigation

What the court held Case: Bender v. Freed, No. 04-4169. Issue: Can sanctions be imposed pursuant to 28 U.S.C. 1927 for conduct occurring prior to the commencement of litigation? Holding: No. Without a case pending, there are no "proceedings" to "multiply," and therefore, sanctions are not authorized by the statute. An attorney cannot be sanctioned under 28 U.S.C. 1927 for ...

Read More »

Basting, Carnell seek State Bar seat

“Simply throwing money at the problem is not the answer. We need strong leadership to take the Bar in the direction necessary to see to it that citizens aren’t denied justice simply because they are poor.” Thomas J. Basting Sr. Brennan Steil & Basting S.C. Among the top issues facing state bar associations nationwide is the provision of civil legal ...

Read More »

Right to Counsel Case Analysis

It is imperative that trial courts and attorneys know that a guilty or no contest plea cannot be conducted with defense counsel appearing only by speakerphone, and that doing so is not subject to harmless error analysis, but is prejudicial per se. No one can know for sure just how widespread this practice may be, but the fact that it ...

Read More »

Guilty plea by phone overturned

What the court held Case: Van Patten v. Deppisch, No. 04-1276 Issue: Can a guilty or no contest plea be entered with the defense attorney appearing by speakerphone? Holding: No. The right to counsel requires that the attorney be physically present. It violates a defendant’s right to counsel for his attorney to appear at the change of plea hearing by ...

Read More »

Takings Case Analysis

The court states that the case is distinguishable from Dotty Dumpling’s Dowry, Ltd., v. Community Development Authority of the City of Madison, 2002 WI App 200, 257 Wis.2d 377, 651 N.W.2d 1, but it is difficult to see how. Distinguishing Dotty Dumpling’s would require the court to withdraw certain language from that case, something only the state Supreme Court can ...

Read More »

Condemnor must offer comparable property

What the court held Case: City of Janesville v. CC Midwest, Inc., No. 2004AP267 Issue: If no comparable replacement properties exist for a condemned business, can the condemnor obtain a writ of assistance to remove the owner? Holding: No. The statutes only allow a writ to issue if some comparable property is made available by the condemnor. Counsel: Alan Marcuvitz, ...

Read More »

Plaintiff Case Analysis

Even though the plaintiff prevailed on the appeal, the decision is a mixed bag, providing both favorable and unfavorable precedent to both plaintiffs and defendants. For plaintiffs, the court did not merely reject the district court’s conclusion that a plaintiff’s status as a "professional plaintiff" renders her unfit to represent a class, the court recognized that such status could be ...

Read More »

'Professional plaintiff' fit to represent class

What the court held Case: Nancy R. Murray v. GMAC Mortgage Corp., No. 05-8035. Issue: WWas it error for a district court to refuse class certification of an action under the FCRA because the named class representative is a "professional plaintiff"? Holding: Yes. A plaintiff’s decision to sue every creditor who may have violated the FCRA, rather than just one, ...

Read More »

Confession Case Analysis

Sornberger v. City of Knoxville, Illinois, No. 04-3614 The decision is noteworthy for a number of reasons. First, the discussion of whether there was probable cause for Scott Sornberger’s arrest, and whether the officers are entitled to qualified immunity, suggests a good avenue for plaintiffs’ attorneys to pursue in similar cases — the opinions of the local federal authorities. In ...

Read More »

Court rules on coerced confession suit

What the court held Case: Sornberger v. City of Knoxville, Illinois, No. 04-3614 Issue: Where a suspect bore no resemblance to the description given by witnesses to a bank robbery, did his arrest lack probable cause? Where a criminal court denied a defendant’s suppression motion, does the doctrine of collateral estoppel (issue preclusion) bar her from bringing a Section 1983 ...

Read More »

Court considers when UIM policy takes effect

A 27-year-old Fall Creek woman, who was injured when an oncoming vehicle crossed the center line and struck her car, is attempting to collect under her underinsured motorist policy. Her insurer says the UIM coverage never took effect because the woman who caused the accident had liability insurance coverage equal to the UIM policy. Alison Welin maintains that she should ...

Read More »

Sanction against firm reversed

What the court held Case: Hobley v. Burge, No. 05-1367 Issue: Can a law firm be sanctioned for not producing documents, when the firm is not a party to the proceedings, and was never subpoenaed or ordered to produce them? Holding: No. In the absence of a subpoena, the firm cannot be faulted for not producing documents, even if the ...

Read More »

‘Act like an adult’ may be too much to expect

Assistant State Public Defender Eileen A. Hirsch says recent federal and state supreme court decisions have recognized differences in the way juveniles and adults make decisions. Children and adolescents are more likely to take risks and act without considering the consequences of their actions than adults. Parents and social scientists have recognized that for years based on anecdotal experience. Medical ...

Read More »