Litigation

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Taking a break from everything being on fire to report this quick hit (h/t several people on BlueSky): every judge interprets the Daubert standard (or whatever standard applies in their state) a little different, but I assure you that a qualification for anyone to testify as an expert witness on any subject is that they must be alive.
Richard Gadrow, an appraiser and witness designated by the plaintiffs in a Southern District of Texas case, died in June…
Continue Reading Dead Men Neither Wear Plaid Nor Render Opinions To A Reasonable Degree of Professional Certainty

The economic loss doctrine is a judicially created rule that prevents parties from pursuing tort claims, such as negligence or misrepresentation, when the only damages they have suffered are financial in nature and stem from a breach of contract.

The doctrine aims to maintain the distinct boundaries between contract law and tort law, ensuring that contractual remedies are used to address economic losses arising from agreements between parties.
Development Through Case Law
Wisconsin’s economic loss doctrine is among the…
Continue Reading A Deep Dive into Wisconsin’s Economic Loss Doctrine

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Occasionally in the law, the irresistible force meets the unmovable object.

This occurs when two public policies, with close to if not equal merits, conflict. While frustrating because one valid interest has to yield, it can lead to a fascinating examination of the relative merits of each policy. Little, if anything, is more absorbing in legal practice.

Unfortunately, the Wisconsin Court of Appeals, facing such an opportunity, chose to punt, and it wasn’t even fourth down. Put another…
Continue Reading Court of Appeals Punts

Finish line, challenge, competition, victory, winner

Ads for personal injury lawyers (and there sure are a lot of them), use some version of “we don’t get paid unless you get paid”.  One variety is “you don’t pay us, unless we win.”  Which brings up two questions:   First, who is in this “we?”  And second, how do you define “winning?”

Certainly, the intent of the ad is to put contingency fee arrangements into “ad speak.”  Under a typical contingency fee agreement, if a client gets zero,…
Continue Reading Defining Winning

Court of Justice and Law Trial: Female Public Defender Presenting Case, Making Passionate Speech to Judge, Jury. Multiethnic Attorney Lawyer Protecting Client's Innocents with Supporting Argument.
Court of Justice and Law Trial: Female Public Defender Presenting Case, Making Passionate Speech to Judge, Jury. Multiethnic Attorney Lawyer Protecting Client's Innocents with Supporting Argument.

It doesn’t come up often, but when it does, it’s a problem.

If, through the course of litigation, you come to believe that a self-represented opposing party is incompetent, there is a fairly simple procedure outlined in the Wisconsin statutes to both protect the party’s interest and keep the case moving.

Wis. Stat. section 803.01(3)(a) is mostly used for minors, but it applies to potentially incompetent parties as well. It reads, in part:

If a party to an action…
Continue Reading What To Do If You Believe a Pro Se Party May Be Incompetent

Courtroom And Gavel
Interior of an empty courtroom with gavel and sounding block on the desk.

Defendants and their counsel normally fear fee shifting cases.  But plaintiffs and their counsel can get trapped as well.

Ellis v. Whitewater Auto, Inc.,[1] and the nearly 3 ½ years from case filing to the damages award, illustrates this. The Plaintiff was awarded $4,999 in lost overtime wages and liquidated damages, and for not having received payment for the last two days of work.

This Fair Labor Standards Act (FLSA) case is fee shifting for a prevailing plaintiff,…
Continue Reading Fee Shifting Cases Can Be a Minefield For Both Plaintiffs & Defendants