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

Christopher A. Duesing
Barbara A. O'Brien
Sarah A. Zylstra
Matthew C. Lein
Jacqueline Chada Nuckels
Jonathan D. Cook
Paul D. Curtis
Christina Davis Sommers
Edward E. Robinson
Corey G. Lorenz
Andrew Gunem
Erik H. Monson
Thomas J. Donnelly
Andrew J. Lawton
Ralph J. Tease
Monte E. Weiss, Kristen S. Scheuerman
Eric L. Andrews
Heather L. Nelson
Cristina M. Kerr
Amy M. Risseeuw
Pamela M. Schmidt
Ashley M. Schutt
Megan McKenzie
Katelyn P. Sandfort
Adam R. Roznowski
Ryan R. Simatic
James R. Troupis
David S. Blinka
Kristen S. Scheuerman
Nelson W. Phillips
Bradley Yanke

Latest from Litigation Blog | Litigation Section

In Wisconsin, Wis. Stat. section 101.11, known as the safe place statute, imposes a variety of duties on employers, owners of places of employment, and owners of public buildings. The statute, first enacted in 1911, is nonspecific as to the exact nature and extent of the duty required to render a premises “safe:” Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees

…
Continue Reading Wisconsin’s Safe Place Statute: Methods and Processes Still Matter

As a new lawyer handling (what I assumed was) an easy settlement disbursement meeting on a small personal injury case, I vividly recall learning that the client was on Supplemental Security Income (SSI), and then leaving the room to ask one of our firm’s estate planning and elder law attorneys, “Is this going to be an issue?”

Aside from having the good – and increasingly rare – fortune of being part of a general practice firm where I could…
Continue Reading Knowing the Intersection of Settlements and Public Benefits

Earlier this year, I presented at a Wisconsin Defense Counsel Conference, along with three jurors from two of my most recent jury trials.

I was pleasantly surprised that these three jurors (two of whom are retired, giving them a little more free time) voluntarily spent time answering questions on a panel and taking the many questions from our audience. Many attorneys talk to jurors immediately after verdicts or follow up in the days after verdicts to learn what the…
Continue Reading The Jurors Spoke. I Listened. Here’s What I’ll Do Differently Next Time

Civil jury trials continue to decrease in Wisconsin.
According to the Wisconsin Court System website, 0.0697% of civil cases resolved via jury trial in 2024, which is a 143% difference from the 0.42% of civil cases that resolved via jury trial just 11 years prior in 2013.

Recent articles hypothesize the reasons for the decline. The myriad reasons notwithstanding, the modern litigator is now faced with the reality that civil jury trials – i.e., opportunities to practice…
Continue Reading Trial Prep for the Modern Lawyer

Blindness or severe visual impairment affects more than 200,000 people in Wisconsin alone. Laws have been created on a state and federal level to protect individuals with severe visual impairments so that they can independently access the world around them.

Katelyn Sandfort headshot

Katelyn Sandfort, U.W. 2010, is a shareholder with Herrling Clark Law Firm, Ltd., in Appleton, where she focuses on personal injury matters.

One such important law is Wis. Stat. section 346.26(1), which provides protection for blind and…
Continue Reading Litigating Cases Involving the White Cane Law

I devote a not-so-small portion of my practice to serving as a guardian ad litem in cases involving minor settlements. I scratched my head a number of times last year at anecdotes I heard and things I witnessed myself when it came to dealing with minor settlements.

And that got me thinking; maybe we should all think a bit more about how to most effectively and efficiently approach settlements offered to minors.

I am hopeful that anyone reading this…
Continue Reading Some Thoughts on Minor Settlements and GALs in Personal Injury Cases

The National Weather Service is
predicting higher than average precipitation this winter for the entire northern tier of the continental U.S. If that prediction is correct, there will be more snowplows than usual this winter season on the 115,000 miles of roads in Wisconsin. ​
Snowplows exist for the sole purpose of making the roads safer for travel. But for several reasons, driving in their vicinity presents a risk of hazards far greater than those inherent in typical everyday…
Continue Reading Snowplow Accident Cases: Proceed with Caution

On July 29, 2024, the American Bar Association (ABA) issued Formal Opinion 512 regarding the use of generative artificial intelligence tools.

The 15-page opinion addressed the use of generative artificial intelligence in the practice of law, focusing on the specific rules pertaining to confidentiality, communications, legal fees, competence, and other related rules.
What Is GAI?
First, it is important to know what generative artificial intelligence is, to understand the context of the ABA opinion.

Generative artificial intelligence (GAI) has…
Continue Reading ABA Issues Formal Opinion on Use of Generative AI

Expert witnesses are key to the success of a case. At an early stage it is necessary to analyze what experts you need and what you want them to teach the jury, by identifying the critical and disputed issues in the case. Identifying these issues is important not only for expert selection, but also for drafting reports and preparing your experts to testify in the most effective manner. It is also necessary to understand the relationship among your experts.
Continue Reading Expert Witnesses: Preparing Your Case for the Jury

Attorneys face many challenges when representing buyers or sellers in vacant land and lot sales. One challenge is avoiding legal “landmines” that can result in claims and lawsuits. This article identifies and explores three types of vacant land that can have legal landmines buried beneath them: Forested Land: Are You Seeing the Forest for the Trees? Forested land presents unique challenges and corresponding liability risks. Wisconsin has a Managed Forest Law that regulates most aspects of forest resources and…
Continue Reading Legal Landmines in Vacant Land and Lot Sales

If you intend to bring a claim for or find yourself defending a claim for punitive damages, you will likely discover that there is simply not much case law in Wisconsin on the issue (specific to personal injury actions).

However, understanding the current statute, the legislative history behind the “new statute,” and the body of case law that does exist is as good a place as any to start.
Current and ‘New’
The statutory scheme for punitive damages is…
Continue Reading A Punitive Damages Primer

Over the past four years, those in the civil litigation sphere – whether plaintiff or defense counsel – have seen a change in the daily practice of many litigators. Initially, this was out of necessity in early 2020 when, for months, many had to work from home as the world dealt with the COVID-19 crisis. Later, as the post-COVID way of life became the norm, many litigators have incorporated these changes into their regular practice. We Attend More Virtual…
Continue Reading Practicing Litigation in the Post-COVID Era

In Wisconsin, vehicles driving in a funeral procession generally have the right of way at an intersection. Specifically, Wis. Stat. section 346.20 states:
(1) Except as provided in sub. (4), the operator of a vehicle not in a funeral procession or military convoy shall yield the right-of-way at an intersection to vehicles in a funeral procession or military convoy when vehicles comprising such procession have their headlights lighted.
(2) The operator of a vehicle not in a funeral procession…
Continue Reading Funeral Fender Benders: Defending Funeral Procession Right-of-Way Claims

Note: This is the second of two parts in the State Bar of Wisconsin Litigation Blog discussing the agricultural tourism immunity statute for an injury claim that occurred at a barn wedding. For the plaintiff side, see the article by Amy Risseeuw, “Agricultural Tourism Immunity and Barn Weddings: The Plaintiff.”

Weddings held at a farm, ranch, or orchard not only provide a relaxed and fun alternative to traditional venues but can also be an income lifeline to…
Continue Reading Agricultural Tourism Immunity and Barn Weddings: The Defense

According to various different wedding websites, approximately 15 to 20 percent of couples are choosing to hold rustic wedding ceremonies and receptions at a barn, farm, or ranch.

While many attorneys practicing personal injury law may have come across a premises liability claim regarding a fall that occurred at a wedding, the agricultural tourism immunity statute, Wis. Stat. section 895.524, adds an interesting layer to an injury claim that occurred at a barn or farm wedding.
The Case
I…
Continue Reading Agricultural Tourism Immunity and Barn Weddings: The Plaintiff

“What hath God wrought?”

These words were delivered when Samuel Morse opened the first telegraph line in Washington, D.C., on May 24, 1844. Morse was keenly aware that this innovation in communication would transform the structure of American society.

Are we on the brink of a similar transformation with the advent of generative artificial intelligence (AI) chatbots?

When Open AI released “ChatGPT” to the public last November, it sent reverberations through the tech industry, inducing giants like Microsoft, Google,…
Continue Reading Can a Chatbot Assist with Legal Practice? Embrace the Potential of Generative Artificial Intelligence with Caution