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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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

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.
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
Continue Reading <em>Cattau</em> and Pleading Standards: Comments from the Wisconsin Supreme Court

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
Continue Reading Prisoner Litigation and the Exhaustion of Remedies Requirement

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
Continue Reading Consequences of Misclassifying Workers as Independent Contractors

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
Continue Reading Ending Uncivil Behavior in Depositions

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
Continue Reading The Art of Voir Dire: Getting the Best Jury for Your Client’s Case