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).

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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…
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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. 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 potential trial testimony, only to be disrupted with continuous speaking objections and coaching of the witness. For those defending a deposition, abusive tactics by opposing counsel –…
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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,…
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March 20, 2019 – Our state Legislature’s recent decision to institute a new limit on the number of interrogatories – as a part of its bundle of substantive changes to provisions of Wis. Stat. chapter 804 – deserves the attention of all practitioners. This new discovery statute under Wis. Stat. section 804.08(1)(am) now provides: A party shall be limited, unless otherwise stipulated or ordered by the court in a manner consistent with Section 804.01(2), to a reasonable number of requests, not to exceed 25 interrogatories, including all subparts.1 While some circuit courts already used local rules limiting the number…
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Litigation Section Blog February 07 2019 Update to ‘Appellate Filers Beware’: More Changes for Electronic Records on Appeal Sarah A. Zylstra In November 2018, Sarah Zylstra warned lawyers filing appellate briefs that the Wisconsin Court of Appeals computer system was reordering the record, making the record identifications in the clerk of circuit court’s certification incorrect. The issue has been fixed for records transmitted on or after Dec. 21, 2018, says Zylstra. In November, I wrote a blog article (“Appellate Filers Beware: Electronic Changes to the Record on Appeal”) about electronic changes made to the circuit court record when…