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Debtor's equity can exceed homestead exemption

The Wisconsin Supreme Court held on Nov. 8 that sec. 806.19(4) requires the satisfaction of a judgment debt against a homestead, where the underlying judgment has been discharged in bankruptcy, even though the debtor’s equity exceeds the allowable homestead exemption, and the debtor failed to seek avoidance of the judgment lien in the bankruptcy court. In 1994, Megal Development Corporation ...

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Disparity Case Analysis

The biggest question raised by the decision is what defendants should do in order to show that their sentences are disparately long, relative to similar offenders. Newsom cited three Seventh Circuit cases in which defendants received substantially shorter sentences, although convicted for crimes that were similar, but, in Newsom’s opinion, more egregious. The court acknowledged some merit to this argument: ...

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Court considers disparate sentences

“While comparisons are appropriate, it is important in the first instance to recall that the Guidelines were intended to create national uniformity, and that this goal remains important post-Booker. It is not enough for a defendant to argue that a few cases from any particular circuit seem to cast doubt on his sentence.” Hon. Diane P. Wood Seventh Circuit The ...

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Labor Logic

Inconsistent, improbable factual affidavits do not create material issue of fact for trial

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Legislature passes medical malpractice cap

“The justice system works and the Legislature should allow that process to work and allow juries to determine those damages.” David M. Skoglind Aiken & Scoptur The Wisconsin Senate passed a bill last week that would reestablish medical malpractice caps for noneconomic damages. The bill was created in response the Wisconsin Supreme Court’s decision last summer which determined the existing ...

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Reconfinement Case Analysis

Admittedly, when a defendant is reconfined after revocation of extended supervision, the need for review of the original sentence and presentence investigation (PSI) is not as great as when the court originally withheld sentence, and the defendant is subsequently sentenced after revocation of probation, which was the case in State v. Reynolds, 2002 WI App 15, 249 Wis.2d 798, 643 ...

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Reconfinement need not review sentence

When a court reconfines a defendant after revocation of extended supervision, it need not review the original sentencing transcript or presentence investigation, the Wisconsin Court of Appeals held on Nov. 2. In 2001, Brandon E. Jones pleaded guilty to one count of delivery of less than 500 grams of marijuana, and was sentenced to 14 months of initial confinement, followed ...

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Bankruptcy courts flooded with filings

Last-minute bankruptcy filings The Eastern and Western Districts of Wisconsin experienced record bankruptcy filings during the two weeks prior to the new bankruptcy rules taking effect. Eastern District Filings: 7,100 Western District Filings: 3,955 When the new bankruptcy reforms hit, the term “the sky is falling” quickly came to mind. Now that the deadline for filing under the old rules ...

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Immunity Case Analysis

On its face, the court’s opinion appears unobjectionable — case law provides a number of considerations; and the court proceeds to consider each individually, deciding whether they weigh in favor of the plaintiff or the defendant. However, in the context of the recreational immunity statute, this methodology fails in three respects: it subdivides one consideration into four separate ones; it ...

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Claim not barred by recreational immunity

A chaperon at an educational retreat was not engaged in recreational activity during a slip and fall, so her premises liability claim is not barred by sec. 895.52, the Wisconsin Court of Appeals held on Oct. 25. Camp Whitcomb/Mason is a rural camping and retreat facility near Hartland. Approximately 25,000 persons use the camp every year. Unifest 2000 was a ...

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Med mal cap debate moves to Senate

The state Senate Agriculture and Insurance Committee heard testimony on Oct 27, concerning legislation which would reinstate caps for noneconomic damages in medical malpractice actions. The proposed legislation comes from Assembly Bill 766 and Senate Bill 393. Earlier in the week, the Assembly passed AB 766 by a vote of 64-30. If passed, the law would cap noneconomic damages at ...

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Court enjoins disclosure

Even if the government erroneously disclosed grand jury materials to nongovernmental personnel, Rule 6(e) forbids further disclosure to another party, the Seventh Circuit held on Oct. 21. Joseph Jaskolski, a private investigator, assisted federal prosecutors in an investigation that led to the indictment of Rick Daniels and three of his relatives for insurance fraud. After the defendants were acquitted, they ...

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Low 401(k) returns may cause lawsuits

As baby boomers retire over the next few decades, a wave of lawsuits may develop against former employers and plan sponsors for failing to invest people’s 401(k) money wisely. “I think there’s going to be an influx of suits, because 401(k) plans have become the primary retirement vehicle for Americans,” said Derek Loeser, a Seattle plaintiffs’ lawyer who specializes in ...

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Conflict Case Analysis

The court only addressed the issue of prejudice, and finding none, never considered whether an actual conflict of interest existed. As a result, it is likely that some enterprising prisoners will latch onto this decision, and make similar claims, arguing that their cases are distinguishable for one reason or another on the prejudice issue. Admittedly, it is unseemly if a ...

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Seventh Circuit addresses conflict of interest

The Seventh Circuit held on Oct. 18 that, even though the defendant could have offered information to the government against a former client of the attorney, the mere possibility does not create a conflict of interest on the attorney’s part. Attorney Andrea Gambino was defense counsel for both Fabian Lafuente and Eddie Cardona. Both had connections to the Insane Deuces ...

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Grand Jury Case Analysis

The decision will be valuable to litigants in two situations: specifically, when a party seeks federal grand jury testimony for a state court proceeding; and generally, whenever an opposing party argues that a statute, as written, produces absurd results. In the first scenario, the case provides persuasive authority for opposing the discovery demand in state court. Failing that, it provides ...

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Prejudice Case Analysis

The court’s conclusion that Anderson failed to show prejudice — because the state had an overwhelmingly strong case — is troubling. The case is properly classified as a “he-said/she-said” case, turning entirely on the relative credibility of the defendant and the purported victim. In such cases, errors by counsel can be very prejudicial. The court notes several factors to bolster ...

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Court finds guilt overwhelming

“The trial court’s communications regarding the reading back of Anderson’s testimony did not prejudice Anderson. First, the State had a strong case against Anderson. The jury had the opportunity to view the video interview of M.L., in which she convincingly recounted the sexual assault.” Hon. Patricia S. Curley Wisconsin Court of Appeals Even if was ineffective assistance of counsel for ...

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Whistleblower Case Analysis

The decision leaves employees in the awkward position of not knowing whether, in fact, the whistleblower law makes the Division of Equal Rights the exclusive forum for adjudication of claims or not. The answer would seem to be no, inasmuch as the statute provides that an administrative action must be dismissed if a parallel court action is proceeding. Implicit in ...

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DWD loses jurisdiction over claim

“We reject Albrechtsen’s (and the Dissent’s) suggestion that subject matter jurisdiction can be switched ‘on and off’ at will, or that Wis. Stat. sec. 230.88(2)(c) permits jurisdiction to be initially possessed by the Commission, lost to the federal court and then regained by the Commission when the federal litigation ended.” Hon. David G. Deininger Wisconsin Court of Appeals The Wisconsin ...

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Sentencing Case Analysis

The decision raises the interesting question of whether, post-Booker, the trial court’s sentence in U.S. v. Cross, 289 F.3d 476 (7th Cir. 2002), which the court cited by way of analogy, would withstand scrutiny. In Cross, the defendant was convicted of mail fraud, and while the court did not delineate his entire criminal history, it was apparently a long one. ...

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Sentence in excess of guidelines reversed

“Having identified the relevant factors, the judge did not single out any aspect except criminal history. … These are significant concerns, but they overlap and, as far as we can tell on this record, are encompassed by the district court’s explicit reference to the text of sec. 4A1.3.” Hon. Daniel A. Manion Seventh Circuit On Oct. 3, the Seventh Circuit ...

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Standing Case Analysis

The decision is long on dicta, if short on binding precedent. Unless a district court grants the motion for vacatur and expresses a lack of confidence in the soundness of the judgment rendered in his own court, the case will always be at least arguably distinguishable. The court’s recitation of the facts and procedural history is very brief. Nevertheless, it ...

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Intervenor lacks standing to appeal

“So remote is the prospect that Enrick could have derived a benefit in suit number 2 from vacating the settlement in suit number 1 that we conclude that he has not established standing to pursue this appeal.” Hon. Richard A. Posner Seventh Circuit Even if a person may intervene to prevent a judgment from being vacated, in order to use ...

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To Google or not to Google? Different Web research tactics

Diane Duffey It is very common to hear people make plans to address their information needs by “Googling,” that is, using the popular Google search engine — or really any general search engine — to try to gather data from the World Wide Web. Is doing a search of the Internet necessarily the best way to get worthwhile information? Is ...

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