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Rule 41 Case Analysis

As a result of the decision, plaintiffs should be very leery of dismissing a federal action to pursue an action based on the same conduct in state court. This is particularly true, because Wisconsin has an identical counterpart to Rule ...

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Poisonous fruit doctrine applies to confessions

“If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based.” Justice N. Patrick Crooks Wisconsin Supreme Court The Wisconsin Supreme Court held ...

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Poisonous Fruit Case Analysis

Because the U.S. Supreme Court has granted review in U.S. v. Patane, both the State and defendants should continue to preserve any issues concerning suppression of evidence that results from an unlawful interrogation, pending resolution of that case. In the ...

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Fee reduction imposed for discovery abuse

“The trial court properly considered whether the costs could have been avoided by a reasonable and prudent effort.” Hon. Patricia S. Curley Wisconsin Court of Appeals Where a prevailing plaintiff in an action entitling her to fee shifting failed to ...

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Over Litigation Case Analysis

It would indeed be unfortunate if this decision were published as recommended, and not reversed by the Supreme Court. Admittedly, the majority’s interpretation of Local Rule 365 is something that attorneys can comply with, and should be expected to. Opposing ...

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Ambiguity not shown by negative implication

“Ferreting through a policy to dig up ambiguity should not be judicially rewarded because this sort of ambiguity is insufficient. Rather, inconsistencies in the context of a policy must be material to the issue in dispute.” Hon. David T. Prosser ...

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Ambiguity Case Analysis

Every first year law student learns the quote of Oliver Wendell Holmes that, “you can always imply a condition to a contract.” Had the court decided this case otherwise, it would have been good law in Wisconsin to paraphrase the ...

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Right to bear arms trumps CCW statute

“Anyone who enters a business premises, including a person with criminal intent, should presume that the owner possesses a weapon, even if the weapon is not visible.” Hon. David T. Prosser Wisconsin Supreme Court The carrying a concealed weapon (CCW) ...

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CCW Case Analysis

There is little doubt that, as Justice Prosser was sharp to recognize in his concurrence in Cole, these cases are going to generate a “deluge of frivolous litigation.” A large number will be from prisoners who failed to raise “as ...

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Skwierawski’s administration leaves legacy

Hon. Michael J. Skwierawski Following 25 years of judicial service to Milwaukee County, five as chief judge, Michael J. Skwierawski, 60, is retiring. Those within the First Judicial Administrative District say he is leaving the state’s largest court system better ...

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Davis jazzed about year as DCBA president

Michael R. Davis Michael R. Davis compares appearing at trial with performing music on stage. Having done both, Davis would know. Davis, a shareholder with DeWitt Ross & Stevens S.C. in Madison, is the new Dane County Bar Association (DCBA) ...

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Owner may have takings claim for lost access

“The essential inquiry is whether a change in access is ‘reasonable.’ Thus, the fact that National Auto has access to Highway 12 via a frontage road does not resolve whether that access is reasonable. Rather, this is a question for ...

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Highway Access Case Analysis

The majority opinion is unusual in two respects. First, it fails to even address the position raised in the dissent — that Schneider v. State, 51 Wis.2d 458, 187 N.W.2d 172 (1971) only applies when the State acts pursuant to ...

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Resignation can’t help judge run for other office

“The existence of such conduct in the past makes no difference to the present legal analysis. Simply put, multiple wrongs do not make a right.” Justice Jon P. Wilcox Wisconsin Supreme Court Article VII, Section 10(1) of the Wisconsin Constitution ...

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Judges Case Analysis

In the wake of the decision, no judge can run for, or accept appointment to, a nonjudicial, nonfederal, office until the expiration of an elected term. However, a judge or justice could still run for the U.S. House of Represen-tatives, ...

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Longer sentence on remand violates due process

When a defendant is resentenced after a successful appeal, the court can only impose a longer sentence if affirmative reasons justifying the longer sentence appear in the record, and are based on objective information regarding events or identifiable conduct on ...

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Resentencing Analysis

The decision in this case is one that has been needed for a long time, for two reasons. The first is the belated recognition that the Leonard and Pearce standards are not the same, and that previous statements that they ...

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DAs can’t initiate Chapter 980 petitions

Hon. Ann Walsh Bradley A district attorney cannot petition for commitment of a prisoner as a sexually violent person, in the absence of a referral from the Department of Corrections (DOC) to the Department of Justice (DOJ), the Wisconsin Supreme ...

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Chapter 980 Case Analysis

For anyone interested in rules of statutory construction, the issue in this case provides a fascinating case study. Consider the history of the issue in this case. On Dec. 8, 1998, in State v. Shaw, 226 Wis.2d 160, 594 N.W.2d ...

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Payment of distress claims clarified

The state Supreme Court has determined that a claim for emotional distress over the death of a loved one must be paid out of the bodily injury limits for the person who died, in line with the “limits of liability” ...

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Blinka takes Milwaukee Bar helm

“What attracted me to the law was the study of law in American history and world history.” Daniel Blinka An interest in the past moved Daniel Blinka toward his future as a lawyer and Marquette University Law School professor. Looking ...

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Attorney can concede guilt as strategy

“While conceding that the facts out of Gordon’s own mouth amounted to disorderly conduct while armed, Gordon’s attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly ...

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Concession Analysis

The decision, insofar as it concerns an attorney’s concession of guilt, brings Wisconsin in line with most jurisdictions and the Seventh Circuit, which has long recognized that an attorney may concede guilt to one charge in a multi-count trial as ...

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Damage caps may need to be pled

“There might be harm in a case such as this if for example a plaintiff had some leeway in classifying damages as economic rather than noneconomic, or if knowledge that noneconomic damages were unavailable would have induced her to devote ...

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Damage Caps Analysis

The decision has the potential to become a trap for Wisconsin defense attorneys who don’t spend much time in federal court, because damage caps need not be pleaded in Wisconsin state courts, but dicta in this case suggests they should ...

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Party can challenge service despite request

Equitable estoppel does not bar defendants from asserting the statute of limitations as a defense, even though the defendants’ attorney told the plaintiff that he would accept service of the complaint and summons in lieu of the defendants themselves, the ...

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