Please ensure Javascript is enabled for purposes of website accessibility
Home / Legal News/page 590

Legal News

Constitution Case Analysis

The greatest impact of the two decisions is not the particular holdings themselves, but that, in criminal cases, the Wisconsin Constitution will no longer be interpreted in lock-step with the U.S. Constitution. Suppression motions that previously would have been patently meritless, because of how the U.S. Supreme Court has ruled on a particular issue, can now be made with some ...

Read More »

State, U.S. constitutions are not coextensive

The Wisconsin Supreme Court announced in two cases on July 14 that it will no longer interpret the Wisconsin Constitution in lock-step with parallel provisions in the U.S. Constitution. State v. Dubose In the first case, Tyrone L. Dubose was stopped for suspicion of armed robbery, after a canine unit tracked him from a robbery scene. The police officers placed ...

Read More »

Damage Cap Case Analysis

The two most significant questions raised by the decision are whether any damage cap can survive constitutional scrutiny, and whether other provisions of Chapter 655 governing medical malpractice can. The majority opinion and the concurrence repeatedly claim that the decision is limited to the $350,000 noneconomic damage cap for medical malpractice, but there is little in the actual reasoning of ...

Read More »

Med mal damage cap violates constitution

The Wisconsin Supreme Court on July 14 held the state’s cap on noneconomic damages in medical malpractice actions unconstitutional. Matthew Ferdon was born partially paralyzed and has a deformed right arm. At trial for medical malpractice, the jury awarded $700,000 in noneconomic damages, $403,000 for future medical expenses, nothing for loss of future earning capacity, and $87,000 to his parents ...

Read More »

Archdiocese concurrence addresses First Amendment

The Wisconsin Supreme Court upheld the dismissal of a case against the Archdiocese of Milwaukee. The case alleged negligent supervision of a priest during the early 1960s. The Wisconsin Supreme Court has determined that a plaintiff cannot hold the Archdiocese of Milwaukee accountable for the actions of one of its priests when there is no claim that the Archdiocese was ...

Read More »

Jurisdiction Case Analysis

The decision restores important procedural safeguards that were jettisoned when the court of appeals held that nothing more is necessary for personal jurisdiction to attach than that a delinquency petition be filed. The court of appeals had quoted as support for its holding that, in State v. Jermaine T.J., 181 Wis.2d 82, 90, 510 N.W.2d 735 (Ct.App.1993), the court emphasized ...

Read More »

Med mal damage cap violates constitution

The Wisconsin Supreme Court on July 14 held the state’s cap on noneconomic damages in medical malpractice actions unconstitutional. Matthew Ferdon was born partially paralyzed and has a deformed right arm. At trial for medical malpractice, the jury awarded $700,000 in noneconomic damages, $403,000 for future medical expenses, nothing for loss of future earning capacity, and $87,000 to his parents ...

Read More »

Recording Case Analysis

The biggest question raised by the decision is when, not if, interrogations of adults will be required to be electronically recorded, as well as those of juveniles. Although the court cited some studies suggesting that juveniles are more susceptible to interrogation than adults, see par. 26, n. 6, that part of the opinion does not even concern the per se ...

Read More »

Juvenile interrogations must be recorded

The Wisconsin Supreme Court on July 7 adopted a rule requiring police to electronically record all juvenile interrogations. In doing so, the court reversed a published decision of the court of appeals, In the Interest of Jerrell C.J., 2004 WI App 9, 269 Wis.2d 442, 674 N.W.2d 607. In 2001, three young men robbed a McDonald’s restaurant in Milwaukee. 14-year-old ...

Read More »

Claim Preclusion Case Analysis

The dissent’s concerns about the majority opinion seem to overstate the consequences in several ways. First, it must be noted the majority and dissent did not agree on the facts. The dissent asserts that Menard was continuing to return merchandise while the first lawsuit was pending, something the majority found not to be demonstrated by the record. Had the majority ...

Read More »

Defect is compulsory counterclaim

“Menard’s suit is merely an attempt to collaterally attack the original judgment by raising defenses and counterclaims to Liteway’s original suit and avoid the circuit court’s determination that the failure to raise these claims in a timely fashion did not constitute excusable neglect.” Hon. Jon P. Wilcox Wisconsin Supreme Court A claim by a buyer of allegedly defective products is ...

Read More »

10 Commandments Case Analysis

The decision completely changes the law in the Seventh Circuit, where longstanding monuments have been held unconstitutional, and recent public displays upheld. The governing law in the circuit comes from long-running litigation involving Elkhart County, Indiana. As in Texas, the Fraternal Order of Eagles donated a granite monument to the county in 1958. Among the participants at the dedication was ...

Read More »

Ten Commandments cases split

The U.S. Supreme Court issued its long-awaited decisions on the Ten Commandments on June 27, holding that a monument that had stood in a public square for decades was constitutional, but holding that the Establishment Clause was violated by a recently erected display that included them. In doing so, the court effectively reversed the governing law in Wiscon-sin and the ...

Read More »

Frivolous Appeals Case Analysis

The decision in this case promised more than was delivered, for the court could have done much more than merely direct that the court of appeals give an attorney the opportunity to respond before finding an appeal frivolous. For example, the court discusses the court of appeals’ decision in Riley v. Isaacson, 156 Wis.2d 249, 456 N.W.2d 619 (Ct.App.1990), but ...

Read More »

Notice required to find frivolousness

“The court of appeals may … raise the issue of a frivolous appeal on its own motion, but it must give notice that it is considering the issue and grant an opportunity for the parties and counsel to be heard before it makes a determination.” Hon. Patience Drake Roggensack Wisconsin Supreme Court The court of appeals should not find an ...

Read More »

Competency Case Analysis

Although none of the four opinions in these cases refers to Chief Justice Abrahamson’s concurrence in Village of Trempeleau v. Mikrut, 2004 WI 79, 273 Wis.2d 76, 681 N.W.2d 190, attorneys should be well aware of it, for it is fast becoming prophetic, in a rather ironic way. The lead opinion in Mikrut held that the failure to challenge competency ...

Read More »

Competency objections to time limits not waived

“The interests of children … are best protected by interpreting sec. 48.315(2m)(a) & (b) in conformity with their plain language so as to allow a circuit court to retain competency over the TPR petition if a time period within Chapter 48 has not been met.” Hon. Jon P. Wilcox dissenting The Wisconsin Supreme Court on June 22 issued two juvenile ...

Read More »

Economic Loss Case Analysis

The court would seem to be indisputably correct — that the economic loss doctrine would be found applicable to an asset purchase agreement, if the Wisconsin Supreme Court were to consider the issue. The best support for that conclusion, however, comes from a decision that the Seventh Circuit did not even mention, Van Lare v. Vogt, Inc., 2004 WI 110, ...

Read More »

Economic loss doctrine applies to asset purchase agreement

The Seventh Circuit held on June 13 that the economic loss doctrine bars tort claims based on an asset purchase agreement, and that the "fraud in the inducement" exception does not apply to such an agreement. Wright Medical Technology, Inc., designs, manufactures, and sells medical devices and products. CERAbio LLC is a research and development company. In the late 1990’s, ...

Read More »

Estoppel Case Analysis

The decision is a welcome one, at least compared to that of the court of appeals. By concluding that estoppel could not lie because the County relied on its counsel’s advice rather than the actions of the Village, that decision created a perverse disincentive to seeking the advice of counsel. However, the court should have gone even further, and held ...

Read More »

Village can always assert ordinance violation

“The bottom line is this: If local officials act irresponsibly, leading on landowners (including counties) and then pulling the rug out from under them, there ought to be a way for the landowners to obtain relief without first violating the zoning ordinance. Equitable estoppel, with stringent requirements to obtain it, strikes me as a reasonable solution.” Hon. David T. Prosser ...

Read More »

Malpractice Case Analysis

The court’s discussion of issue preclusion is indisputably correct, and should be equally applicable, even if a case goes to trial, rather than being resolved by a guilty plea. Ultimately, even if a client is guilty of fraud, that does not mean the attorney who advised her to act in a certain way was not negligent. The alleged negligence has ...

Read More »

Guilty plea no bar to malpractice claim

A guilty plea does not bar a defendant from then suing her former attorney for legal malpractice, the Wisconsin Supreme Court held on June 9. In doing so, the court reversed a published decision of the court of appeals, Mrozek v. Intra Financial Corp., 2004 WI App 43, 271 Wis.2d 485, 678 N.W.2d 264. Patricia Mrozek wanted to build a ...

Read More »

Confrontation Clause Case Analysis

While Manuel may have lost this case, the decision is good for defendants generally. “For now,” at least, the court has adopted the broadest possible definition of a “testimonial” statement — “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford itself ...

Read More »