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.

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One case short of a top 10 list, this is a summary of nine recent decisions from the Wisconsin Court of Appeals that discuss insurance coverage.

Readers should note that several of the decisions discussed are unpublished, per curiam decisions, so an understanding of Rule 809.23(3)(a)-(b) is important.

Despite a prohibition on publication, the per curiam decisions discussed in this article are important in that they help the reader understand how courts have analyzed various coverage issues, and ​that
Continue Reading Nine Recent Insurance Coverage Appeals Court Decisions

Under Wisconsin’s workers’ compensation regime, if a workplace injury is caused by an employer’s violation of safety rules and regulations – including those of U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) – the injured worker is entitled to additional workers’ compensation benefits.

The extra benefits are equal to an additional 15% of the allowable benefits with a maximum additional benefit of $15,000, according to Wis. Stat. section 102.57.
Workers’ Compensation in Wisconsin
As in most
Continue Reading Wisconsin Workers’ Compensation: Impact of OSHA Safety Violations and Penalties

Zoom depositions have presented interesting challenges during the COVID-19 pandemic. When the court reporter is not physically present in the room with the deponent and/or the deponent is masked and socially distanced, the accuracy of the transcript can suffer. Combine this with scientific or technical testimony, along with screen “freeze” and other technical glitches, and – voilà – you have the perfect recipe for a transcript laden with errors.How does an attorney address the circumstance of “I didn’t say
Continue Reading Transcript Errata in the Time of COVID-19


For real estate to have value, you have to be able to get
to it. The right of ingress and egress to the public roadways from a property is called “access,” or an “easement of access.” Access is an inherent property right. Any property abutting a public roadway has an easement of access to the road, even without an express deed or grant.Yet, a property’s access rights are not unlimited. The State (and municipalities) have a legitimate governmental
Continue Reading The State Removed Access to Your Clients’ Property. Now What?

Third-party negligence claims are legally complex, because both the employee and the employer have claims against any money damages that are recovered via an insurance settlement or a trial verdict awarded against a third party.

Any recovery from a third-party negligence claim must be split between the employee and the employer based on the formula set forth in the Wisconsin third-party liability statute.1 This article provides some background on third-party negligence claims and discusses how third-party awards are
Continue Reading Splitting Awards in Third-party Negligence Claims

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
Continue Reading The Scourge of Boilerplate Objections

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
Continue Reading Volunteering as a Lawyer: What’s the Point?

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
Continue Reading Unwilling Plaintiff: Appeals Court Weighs In on Compulsory Joinder

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
Continue Reading Civil Jury Verdicts: The Five-sixths Requirement in Wisconsin

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
Continue Reading The Metaphorical Unicorn: Diversity and Inclusion in Litigation Practice

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
Continue Reading A Judge’s Plea to Litigators: Help Me Resolve the Case

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
Continue Reading Is Your Liability Waiver Enforceable? Probably Not

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
Continue Reading When Lawyers Push the Boundaries in Litigation

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,
Continue Reading Should You Rely on Your Client’s Story? Wisconsin’s Rule 11 and Reasonable Inquiries

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
Continue Reading Occupational Injuries in Distribution Centers

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
Continue Reading On Deposition Etiquette: Views from Our Own