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Asset Purchase Case Analysis

The decision is important for reversing a decision which, in the words of Judge Patience Roggensack, dissenting from the court of appeals’ decision, “create[d] uncertainty in commercial transactions throughout Wisconsin where asset purchase agreements have been common occurrences.” Ultimately, the inability of companies to safely enter into standard asset purchases would have significantly depressed the values that Wisconsin companies could ...

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Reversal required when juror can’t understand

“It is clear that the error of allowing Vera to serve as a juror contrary to the statutes was not harmless, because his stated inability to understand English prevented him from meaningful participation in the trial process.” Justice N. Patrick Crooks Wisconsin Supreme Court The ability of all jurors to understand English is necessary to satisfy the requirements of secs. ...

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English Case Analysis

A question raised by the case is what constitutes harmless error, and whether, as the dissent suggests, the majority opinion implicitly makes error grounds for reversal per se. The comments by both the concurrence and dissent — that the majority opinion’s harmless error analysis is wholly conclusory — are absolutely correct. The two opinions are also correct that the harmless ...

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State Bar, courts celebrate past, future

“Judicial independence remains the cornerstone of our democracy and our judiciary.” Hon. Shirley S. Abrahamson Chief Justice Wisconsin Supreme Court “You say it’s your birthday? Well it’s my birthday too, yeah.” That famous refrain from the Beatles could’ve been the theme song to one of the spotlight programs at the State Bar of Wisconsin Annual Convention earlier this month in ...

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Extinguishing the fuse on the ‘litigation explosion’ myth

If you listen to its critics, our civil justice system is a smoldering volcano, spewing forth a “litigation explosion,” which buries our court system in a lava-flow of frivolous lawsuits that paralyze our economy. Sanity, it is argued, can only be restored by tort “reform” — reducing levels of accountability by making it harder to sue businesses, placing ceilings on ...

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Board resolution seeks EEOC hearings

Be it resolved that the Individual Rights and Responsibilities Section of the Wisconsin Bar requests that the Board of Governors: 1) Communicate with EEOC officials and members of the Wisconsin Congres-sional delegation urging that prior to any restructuring there be nationwide public hearings on the impact of the re-structuring proposal on civil rights enforcement; and, 2) Urge members of the ...

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Notice of claim statute inapplicable to condemnation

“The inquiry is to determine whether some legislative goal, be it prompt resolution or another purpose, will be thwarted by requiring compliance with sec. 893.80(1) as a precondition to commencing an action under the statute.” Judge David G. Deininger Wisconsin Court of Appeals Property owners are not required to file a notice of claim when challenging a condemnation by a ...

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Condemnation Case Analysis

It was obvious when the Supreme Court issued its decision in DNR v. Waukesha that it would be impossible for parties in numerous types of actions with statutes of limitation less than 120 days to both file a notice of claim and file a timely complaint. There have been only a handful of published cases holding the notice of claim ...

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Issue preclusion applies to municipal ticket

What the court held Case: Ann M. Masko v. City of Madison, No. 02-2267. Issue: Should the doctrine of issue preclusion bar an injured motorist, who was convicted after a municipal court trial of a traffic violation, from bringing suit in tort against another motorist? Holding: Yes. Because the motorist had the opportunity to challenge the ticket in municipal court ...

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Issue Preclusion Case Analysis

Unfortunately, in the wake of this decision, motorists who are involved in automobile accidents and receive municipal citations will be wise to plead no contest rather than fight the citation, regardless of how much they feel they may be in the right. Even if the first four Crozier factors weigh in favor of invoking the doctrine of issue preclusion in ...

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DNA Profile Case Analysis

Although, for new sexual assaults, sec. 939.74(2d)(b) makes it unnecessary to swear out John Doe warrants and file complaints prior to expiration of the statute of limitations, it is still wise to do so for older ones. Section 939.74(2d)(b) took effect Sept. 1, 2001. For crimes occurring before, Sept. 1, 1995, the six-year statute of limitations would already have run ...

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Court can review John Doe judge

The court of appeals has jurisdiction to issue a supervisory writ to a John Doe judge, the Wisconsin Supreme Court held on May 1. The court further held that a John Doe judge has the authority to disqualify counsel for a witness, and that when documents are submitted under seal to the court of appeals from a secret John Doe ...

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John Doe Case Analysis

It is axiomatic to say that a John Doe judge is not authorized to exercise all the powers of a court. In the wake of this decision, however, the question of what powers it can exercise is now more uncertain than before. Justice Sykes noted that attorney argument is necessary to adjudicate adversarial motions that affect the substantial rights of ...

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Roundtable Discussion

Oral Arguments Last week, the Wisconsin Law Journal presented the first of a two-part series looking at the elements of preparing and presenting oral arguments. WLJ brought together two appellate judges and four appellate attorneys to discuss the topic of oral arguments during a roundtable discussion on March 20. Editor Tony Anderson moderated the session. What follows is the second ...

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DNA profile sufficient for complaint, warrant

“For purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible.” Judge Ted E. Wedemeyer Wisconsin Court of Appeals A criminal prosecution is properly and timely commenced by a “John Doe” complaint and arrest warrant which identify the defendant solely by a DNA profile, the Wisconsin Court ...

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Courts can sanction unauthorized practice

An organization that sent brochures to defendants that offered paralegal services, and were designed to undermine their confidence in their attorneys, constituted the unauthorized practice of law, the Seventh Circuit held on April 24. However, the court held that, absent a finding of contempt, a district court could only impose remedial sanctions on the organization, and not punitive ones. Willard ...

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Unauthorized Practice Case Analysis

As aggressive as Judge Murphy’s actions may appear, they would certainly be welcomed by anyone who has ever had to deal with organizations like NLPA. There is no reason why state court judges in Wisconsin should not be able to take similar actions against such groups. However, in order for a Wisconsin state court judge to impose sanctions such as ...

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Roundtable Discussion

Oral Arguments Last month, the Wisconsin Law Journal brought together a group of veteran appellate attorneys and appellate judges to discuss the issues related to preparing and presenting oral arguments. Editor Tony Anderson moderated the discussion on March 20, which covered issues ranging from the elements of effective oral arguments, to the use of mock panels when preparing. What follows ...

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Court adopts broad definition of ‘school staff’

“While we share Kaster’s and the trial court’s concerns that interpreting this phrase to include delivery persons or ushers at sporting events might not be precisely what the legislature intended by creating Wis. Stat. sec. 948.095, this problem is for the legislature, not us, to remedy.” Judge Thomas Cane Wisconsin Court of Appeals Any person who provides any services to ...

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School Staff Case Analysis

It is reasonable to think that, even if the court had found the statute ambiguous, it would have affirmed the conviction of Kaster. As the court noted, regardless of when his formal duties as coach may terminate, the contract plainly provided it was for the entire school year. However, it is obvious that the court’s interpretation goes far beyond what ...

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Child abuse investigation held unconstitutional

Section 48.981(3)(c)(1) is unconstitutional to the extent it authorizes government officials to conduct an investigation of child abuse on private property without a warrant, probable cause, consent, or exigent circumstances, the Seventh Circuit held on April 16. Nevertheless, the court found that officials who conducted such an unlawful investigation are entitled to qualified immunity, because reliance on the statute was ...

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Investigation Case Analysis

It should be expected that the most frequent applications of this decision will not be in civil rights actions in federal court, like this case, but in state court, where defendants attempt to use it to suppress evidence against them. A number of hurdles await defendants who attempt to do so. First and foremost is whether Wisconsin courts, which are ...

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Doctor can be forced to testify as expert

“Understanding that the ‘particularly harsh sanction’ of dismissal would inevitably follow from acceding to Dr. Koh’s wishes, Judge White reasonably exercised discretion in ordering his testimony and denying Dr. Plante’s motion to dismiss.” Judge Charles B. Schudson Wisconsin Court of Appeals Where refusing to compel a doctor to testify as an expert would result in dismissal of the plaintiff’s case, ...

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Expert Testimony Case Analysis

For all of the ample reasons stated by Judge Curley in her dissent, this decision was clearly decided incorrectly, and it should be expected that, if published or reviewed by the Supreme Court, it will ultimately be overruled. An additional ground for reversal is the majority’s failure to appreciate the difference between direct and collateral consequences. The court repeatedly referred ...

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IOLTA remains in place

"Under our rules, the client then makes a claim, it’s reviewed, they can then be paid their interest from the IOLTA funds. They can be made whole.” Patricia K. Ballman State Bar President The U.S. Supreme Court ruling upholding the use of Interest on Lawyer Trust Account (IOLTA) programs is good news for Wisconsin legal service groups, which receive more ...

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Non-techies can dazzle ‘em with technology

Image of chad displayed as part of PowerPoint presentation which Fred H. Bartlit Jr. gave during the Florida presidential election trial. To all you trial lawyers: You’re NOT using PowerPoint, or some other evidence presentation software? You’re not alone. At the American Bar Association’s TechShow 2003 in Chicago earlier this month, in a room of more than 100 attorneys attending ...

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Senate considers adopting Daubert

“Jurors are like computers; garbage in, garbage out.” J. Ric Gass The Wisconsin Senate’s Committee on Judiciary, Corrections and Privacy held a public hearing on April 9 on a bill that would amend Wisconsin’s rules of evidence to make expert testimony subject to the same requirements as in federal court. 2003 Senate Bill 49, proposed by Sen. Robert Welch, would ...

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Zoning/Platting distinction abolished

“Any regulation relating to the ‘quality’ of a subdivision must necessarily consider the ‘most appropriate use’ of land. We cannot fathom how an ordinance can consider the most appropriate use of land if it cannot consider the use of land.” Justice Ann Walsh Bradley Wisconsin Supreme Court The Wisconsin Supreme Court held on April 11 that Chapter 236 authorizes a ...

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Zoning Case Analysis

Effectively, the decision in the case at bar does exactly what Justice Prosser says — gives municipalities authority to downzone land by use of its extraterritorial subdivision powers. A property owner can still challenge a platting decision that usurps zoning powers by asserting the Takings Clause, but, as can be seen from Hoepker v. City of Madison Plan Comm’n, 209 ...

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Standing Case Analysis

There is a reason that the court made its holding on the standing issue as though it were a matter of undeniable common sense, rather than citing precedent to support it — no such precedent exists, either in the Seventh Circuit or the United States Supreme Court. The entirety of the court’s reasoning consists of three sentences: “Haywood was not ...

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