Litigation Blog | Litigation Section

This blog discusses issues important to attorneys engaged in civil litigation, insurance law, and tort law. Topics include changes in the statutes, important appellate and Supreme Court decisions, insurance law, practice tips and pointers, procedural issues, evidentiary issues, jury trials, and more. Published by the State Bar of Wisconsin's Litigation Section.

The section strives to further the development and improvement of the civil litigation practice by monitoring, commenting upon, and proposing legislation, and by sponsoring and presenting CLE programs. The section has an email list, and supports law students’ trial advocacy training and the protection of the adversarial and jury systems.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Website: https://www.wisbar.org/forMembers/Groups/Sections/LitigationSection/pages/home.aspx

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By: Litigation Section | State Bar of Wisconsin​

Blog Authors

Barbara A. O'Brien
Sarah A. Zylstra
Matthew C. Lein
Jacqueline Chada Nuckels
Jonathan D. Cook
Christina Davis Sommers
Edward E. Robinson
Erik H. Monson
Thomas J. Donnelly
Ralph J. Tease
Eric L. Andrews
James R. Troupis
David S. Blinka
Nelson W. Phillips

Latest from Litigation Blog | Litigation Section

The use of boilerplate objections in response to written discovery – interrogatories, requests for documents, and requests for admissions – has proliferated in civil litigation, even though it has no basis under the rules. All attorneys are familiar with the routine “form” boilerplate objections: relevance, overbroad, oppressive, burdensome, harassing, vague, ambiguous, attorney client-privilege, and attorney-work product, etc. The problem with using boilerplate objections has been heightened by the practice of prefacing discovery responses with a “general objections” section, which usually spans multiple paragraphs, if not pages. To make the problem even worse, these general objections are typically incorporated by reference…
There are some men in this world who are born to do our unpleasant jobs for us. Your father’s one of them. – Miss Maudie, speaking about Atticus Finch, in Harper Lee’s To Kill a Mockingbird After four decades of practicing, I still often think of Atticus Finch in Harper Lee’s To Kill a Mockingbird. He is, I suspect (and hope), what we as attorneys aspire to be: defender of the defenseless, courageous in the face of scorn, undaunted in the face of a lost cause. Recent discussions about finding ways for young attorneys to get into court, including debates…
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A Wisconsin appeals court recently held in Nelson v. Loessin1 that joinder statutes cannot be used by defendants to bring all injured parties involved in the same accident into same lawsuit. According to the appeals court, neither Wis. Stat. section 803.03  “Joinder of persons needed for just and complete adjudication,” nor Wis. Stat. section 803.05  “Third-party practice,” can be used by a defendant causing an accident to force all injured parties into a single lawsuit. Nelson v. Loessin: Facts In 2017, six individuals riding in a van suffered injuries in a car accident in which the van was struck from behind…
Substantial time, preparation, and expense goes into any trial. It can therefore be extremely frustrating (to say the least) when the trial court announces a jury verdict that is defective because it violates Wisconsin’s five-sixths rule – thereby potentially requiring the entire case to be retried. Sometimes the five-sixths rule problem could have been avoided, had the trial court perceived the issue before announcing the verdict and reinstructed the jury to continue deliberations – possibly leading to one or more dissenters changing their votes. Other times, after reinstruction and further deliberation, the jury may remain deadlocked with multiple dissenters. The…
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While attending a 2017 Claims Litigation Management (CLM) Diversity and Inclusion Institute Conference in Chicago, Illinois, I attended a session titled “Diversity in Demand: What Buyers Want.” The session explored what insurance buyers, in this case Fortune 100/500 companies, are seeking from their industry service providers. Specifically, this session primarily focused on these companies’ demand for diversity and inclusion in the insurance industry based upon research showing that, when insurers have members who represent the target customers, the team was much more likely to understand customers’ needs, facilitating more effective engagement. Eric Andrews, Marquette 2012, is a senior associate with…
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In the early years of the Western District Federal Court’s “rocket docket,” I recall Judge Barbara Crabb and Judge John Shabaz wrestling with how to interpret the Gordian knot of patent claims. How, in the name of all that constitutes the English language, could someone create an endless string of arcane and archaic terms, seemingly haphazardly arranged, to describe the simplest invention? And if the invention was not so simple … now that was as a lawyer’s paradise (assuming “paradise” in the world of patent litigation is a never-ending flow of billable hours). Judge James Troupis, Northwestern 1987, served on the…
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When you step into a gym or athletic facility or register others for extra-curricular activities, you are typically presented with a waiver that purports to release someone or something from liability in the event of an injury. But is the waiver you signed or the waiver your clients are using worth anything more than the paper it is printed on? If the activity is not otherwise covered by a grant of statutory immunity,1 probably not. The Wisconsin Supreme Court has offered considerable guidance on how to draft an enforceable liability waiver, but it appears businesses are not listening. Wisconsin…
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For the last dozen or more jury trials I have had, there comes an inevitable moment where opposing counsel crosses the line of permissible voir dire, and starts to “try his/her case” through the jury panel. If it happened half the time it might be one thing. But it happens in literally every case I try. After asking if anyone thinks there are too many lawsuits or whether all chiropractors are inept (proper voir dire), counsel inevitably asks the jurors whether anyone thinks it is important for bus drivers to follow safety rules (or some variant of that question if…
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Imagine this hypothetical scenario: You consult with a new client for a civil matter. The law on this matter is not complicated. You have done the legal research beforehand, and you correctly identify several legal issues as the client is telling you their story. Based on what the client is telling you, you believe that the client may have a good case that would entitle them to money damages. The client is very pleased with how the consultation went, and they sign a fee agreement with you in short order. You know that the applicable statute of limitation puts the…
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Automation has revolutionized manufacturing, warehousing, and transportation industries, but advances in technology have a human cost. As they rely more and more on technology, companies have implemented increasingly stricter standards on human workers. These measures reduce an employee to how much they accomplish every minute, pushing many to ignore their bodies’ warning signs and work to the point of exhaustion. This phenomenon is frequently seen in distribution centers, a large source of employment in Wisconsin. Over 54,000 people worked as laborers and material movers in Wisconsin as of 2018, and the Bureau of Labor Statistics reports that almost 20,000 more…
As litigators, we have all experienced the good, the bad, and the ugly at depositions. The good may include one that is a master in the art of conducting depositions. The attorney exudes professionalism while skillfully asking relevant and probing questions. Barbara A. O’Brien, Marquette 1987, is an attorney with Borgelt, Powell, Peterson & Frauen, S.C. in Milwaukee, where she practices in insurance defense litigation and coverage. More memorable of course, are the bad and ugly ones.1 Often times for those conducting the depositions, they have spent hours of preparation in order to ascertain the deponent’s knowledge and…
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Nov. 20, 2019 — Earlier this year, the Wisconsin Supreme Court issued a per curiam decision in Cattau v. National Insurance Services of Wisconsin, Inc.1Cattau is an interesting commentary on Wisconsin’s pleading standards. Background The case involves a circuit court’s dismissal of claims brought by a group of retired teachers and administrators alleging mismanagement of their retirement funds. Applying applicable law, the circuit court held that the complaint failed to state a claim. The court of appeals affirmed, relying upon the well-cited decision of Data Key Partners v. Permira Advisors LLC.2 The court of appeals noted that…
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Whether assisting an inmate to prosecute his or her civil claim pursuant to 42 U.S.C. section 1983, or defending against civil rights claims levied against corrections staff, it is critical to understand that the inmate’s exhaustion of the administrative remedies related to their claims will either sink or save the lawsuit. Generally, we all know that the Prison Litigation Reform Act (PLRA) requires that an inmate exhaust his or her administrative remedies before filing suit regarding – for example – prison conditions. Exhaustion of remedies is an affirmative defense to which the burden of proof is on the defense.1…
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Wisconsin workers’ compensation lawyers are seeing a growing number of cases where injured workers have been misclassified as independent contractors, denying them access to workers’ compensation benefits. Unfortunately, abuse of the system is most often found in the construction industry and some of the state’s other dangerous occupations. Very few of these workers are legitimate independent contractors; most are entitled to workers’ compensation benefits as a matter of law. Injured workers who are improperly classified as independent contractors may even have a legitimate third-party liability claim against an employer after being injured on the job. In 2017, Harvard Business Review …
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The topic of the lack of civility in the practice of law come up at regular intervals in continuing education seminars and articles in legal publications. Usually, the commentator laments the situation, and moves on without proposing a solution. Uncivil behavior appears in many circumstances and takes different forms. I have now spent 24 years practicing law, all in civil litigation. Uncivil Behavior in Depositions One particular area I see ongoing uncivility is in depositions. I continue to see lawyers aggressively questioning (including raising their voices, if not outright yelling at) witnesses. Lawyers also ask questions which are not questions…
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As it is in life, it is with juries: “You can’t always get what you want.”1 Yet, it is the task of the trial lawyer, through voir dire, to get what she needs – the best possible jury to hear her client’s case. Many trial lawyers will agree that voir dire is among the most important and most intimidating parts of any trial. With limited time, the lawyer has to meet, question, and assess the biases of at least 25 total strangers, and ultimately place the case in the hands of those strangers. com jackie jacobsinjurylaw Jacqueline Chada Nuckels,…