Beruflich Dokumente
Kultur Dokumente
DECEMBER 2015
BIG
CHANGES
AHEAD!
PAGE 24
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(ERRATIC)
DRIVING
FORCE
THE PUSH IS ON
TO STRENGTHEN
DRUNKEN DRIVING
PENALTIES
INSIDE:
Disciplinary Actions
Bench Blog
Case Digests
Practice Management
PA G E 10
PA G E 1 2
PA G E 2 2
PA G E 4 0
PA G E 4 4
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CONTENTS
10 Disciplinary Actions
12 Bench Blog
Choice of wrong legal route wastes opportunity
14 Commentary
In race to stand out in social media, the first can
end up last
With pay progression, prosecutors and
defenders should come before judges
36 Verdicts & Settlements
18
STICKING POINT
Will lawmakers find support to make first drunken driving offenses criminal?
43
ANXIOUS TO SUCCEED
Yes
45%
55%
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Electronic filing
arrives in Wisconsin
Story on page 8
Starting July 1, courts
around the state will be
able to electronically
transmit records related to
cases that are on appeal.
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E-CHANGE
Court gives go signal for electronic transmission of appeals
Erika Strebel
erika.strebel@wislawjournal.com
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DISCIPLINARY ACTIONS
The latest complaints filed and discipline ordered against attorneys licensed to practice in state
Stories by Erika Strebel
10
A Green Bay attorney faces a public reprimand following allegations that he mishandled
client fees.
An OLR complaint filed in November alleges
Alf Langan, who practices in Green bay, committed 11 counts of misconduct stemming from the
cases of six clients whose fees he is accused of
mishandling. The OLR alleges that Langan entered into advanced fee agreements with clients,
who then paid part or all of the fee. Langan is
suspected of then failing to provide clients with
an account of his fees at the end of his representation and, in a number of cases, taking months
to refund unearned fees to clients.
The OLR is asking the Wisconsin Supreme
Court to publicly reprimand Langan for the
alleged misconduct, according to the complaint.
Langan has been licensed to practice law in
Wisconsin since 1991. He graduated from Saint
Louis University School of Law in 1984, according to the State Bar. Langans license is in good
standing, according to both the OLR and the bar.
This was not Langans first encounter with
the OLR. He was publicly reprimanded in 2011
in two client matters.
DECEMBER 2015 WISCONSIN LAW JOURNAL
The Wisconsin Supreme Court has suspended a Minnesota lawyers Wisconsin law license
for six months.
Wednesdays discipline stems from an OLR
complaint filed April 6 in Wisconsin, alleging
six counts of misconduct involving a settlement
Amoun Sayaovong failed to pay to three of his
clients and for practicing while his license was
administratively suspended in October 2013 for
failing to pay bar dues.
The complaint also asked the Supreme Court
to suspend his license for six months.
The justices agreed and also held Sayaovong
in default for failing to respond to the OLRs
complaint and for failure to appear at hearings
related to the complaint.
According to the State Bar and Wisconsin
Court System websites, Sayaovongs work address is in St. Paul, Minn. But according to an
Office of Lawyer Regulations complaint, the address does not exist and Sayaovong has listed
a Milwaukee address in some correspondence.
Sayaovong previously had a website and phone
number that place him in Milwaukee.
Sayaovong was publicly reprimanded in 2014
for mishandling immigration and Social Security
cases. He also has not paid mandatory bar dues
or fulfilled continuing legal education requirements, according to the State Bar website.
Sayaovong graduated from the University of
Michigan in 2006 and was admitted to practice
law in Wisconsin in 2007.
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Commentary
COMMENTARY
BENCH BLOG
Judge Jean
DiMotto retired
in 2013 after
16 years on
Adoption action
Just before Thanksgiving 2014, the couples
attorney filed an adoption action. Ms. L.s adoption
County Circuit
of the child, however, was not the goal of the action.
bench and now
Rather, in their Joint Petition for Determination
serves as a
of Parentage, the couple sought an order: (1)
reserve judge.
declaring C.L. a legal parent of the child; (2)
She also is of
declaring C.L. and S.R. to be equal legal parents of
counsel with
the child; (3) declaring that the anonymous sperm
Nistler Law office
donor was not a legal parent of the child; and (4)
directing the Wisconsin Department of Health
SC. She can
Services, Vital Records Office, to identify C.L. and
be reached at
S.R. as the childs legal parents and to issue a birth
jeandimotto@
certificate listing both C.L. and S.R. as parents.
gmail.com.
As part of their petition, the couple challenged
the constitutionality of two statutes.
The first sec. 891.41, the presumption of
paternity stemming from the marriage of the parties provides that
a man is presumed to be the natural father of a child if he and the
childs natural mother were married after the child was born and had
a relationship when the child was conceived, and if no other man has
been adjudicated the father.
The second sec. 891.40, artificial insemination provides that
if a wife is artificially inseminated, her husband, rather than the sperm
donor, is the natural father.
the Milwaukee
12
Court hearing
Because it was an adoption action, only the couple and their attorney
appeared at the hearing on the petition before Winnebago County
Circuit Judge Karen Seifert.
Counsel argued that the two statutes in question needed to be
ungendered under sec. 990.001(2) (words relating to one gender
shall be applied to both genders). This would allow Ms. L. to be
declared the natural, legal parent of the child. Not to do so, she argued,
would violate Ms. L.s due process and equal protection rights as
established by recent federal cases allowing same-sex marriages.
Judge Seifert said the couple could continue with the adoption action.
But: The relief that youve requested in your petition are all basically
asking for a declaratory judgment. Seifert recommended that the
couple file a civil action seeking either declaratory judgment or a
paternity action.
Counsel agreed that her clients were actually not seeking adoption.
She argued that a paternity action or a family action would be just as
inappropriate as an adoption action; in the end, counsel said, her clients
simply chose the option that came without a filing fee.
Seifert denied the petition because the action was one for adoption.
Because the constitutionality of the two statutes was being challenged,
she again said the couple could bring an action for declaratory
judgment and serve notice on the attorney generals office.
Rather than file an action for declaratory judgment, the couple
appealed.
Court of Appeals
In the appeal In the Interest of P.L.L.-R. v. Circuit Court for
Winnebago County the couple put forward similar arguments,
including that the matter was controlled by Judge Barbara Crabbs
decision in Wolf v. Walker (as affirmed by the 7th Circuit Court of
Appeals) and the subsequent U.S. Supreme Court decision in Obergefell
v. Hodges. Moreover, she asserted that the current version of the two
statutes violated not only the constitutional rights of the same-sex
parent but also those of the child.
Judge Mark Gundrum, writing for the District 2 Court of Appeals,
noted that Judge Crabb had indicated a few months ago that Obergefell
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Commentary
THINKSTOCK
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13
Commentary
ON ETHICS
Nate Cade is a
solo attorney
who previously
served on and
chaired the State
Bars Ethics
Committee
and served
on the ABAs
Standing Ethics
Committee.
You can contact
him at nate@
cade-law.com
14
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Commentary
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Commentary
ON THE DEFENSIVE
Anthony Cotton
is a partner at
Kuchler & Cotton
SC, Waukesha.
He is the vice
president of
the Wisconsin
Association of
Criminal Defense
Lawyers and
served two terms
on the board
of the National
Association of
Criminal Defense
Lawyers.
16
Wisconsin Supreme
Court Chief Justice Pat
Roggensack promised,
in her State of the
Judiciary Address, that
she will fight for higher
judicial salaries when
the Legislature begins
work on the states
next budget.
Roggensack
emphasized that
judicial salaries should
reflect the important
role that their recipients
play in maintaining
constitutional liberties.
A Wisconsin
Supreme Court
justice currently earns
$147,403 a year. State
court judges are paid
$131,200. Justice Roggensack said
that she wants the judiciary to be the
best it can be. Few would doubt that
fair compensation raises the quality
of the candidate pool.
Justice Roggensack (and every
other judge in the state) would
obviously reap personal benefits from
a salary increase. But are they truly
the ones who are in need? What about
the far more pressing concern the
unconscionably low salaries paid to
prosecutors and public defenders?
Under the current system in
Wisconsin, prosecutors and public
defenders will see virtually no pay
progression throughout their career.
In practical terms, this means
that regardless of performance,
prosecutors and public defenders
will spend virtually their entire
careers making between $50,000
and $60,000. Take, for example, an
assistant district attorney in Milwaukee
who has worked in that office for
fourteen years. He or she now earns
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Cover story
STAFF PHOTO BY KEVIN HARNACK
18
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Cover story
STICKING POINT
Will lawmakers find support to make first
drunken driving offenses criminal?
Erika Strebel
erika.strebel@dailyreporter.com
Lawyering up
Some question, though, whether heightened penalties are ever enough, on their own
at least, to prevent someone from getting
behind the wheel after having had too much
to drink. Skeptics say the real beneficiaries of
deterrence attempts are likely to be lawyers.
For defense attorneys in particular, higher
penalties generally mean more business.
Not one study of which I am aware has
ever shown that criminal sanctions decrease
the incidents, said attorney Chris Van
Wagner. Not one.
Mishlove said that when the stakes are
made higher for clients, lawyers tend to
respond by litigating even more.
Even a first offense can destroy a career,
he said. We have lots of good citizens who
have been good for decades who wind up
having their careers and families destroyed.
Van Wagner, a defense attorney in Madison, agreed, saying that mandatory minimum
sentences and higher penalties often do little
more than stiffen a clients resolve to fight.
Basically it doubles the amount of lawyers
Drunken driving , continued on page 20
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19
Cover story
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Cover story
Drunken driving, continued from page 20
program, and most choose that option.
But its hard to make the carrots effective,
Mishlove said, unless there is a big stick
hanging overhead.
We have such a lenient first-offense program, Mishlove said. A system where there is
no negotiation or plea bargaining no options
or incentive is a failure. I think we need a
dramatic increase in treatment options.
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No will, no way
Berceau said her bill faces two hurdles. The
first, she said, is opposition from the powerful Tavern League of Wisconsin, which gives
campaign donations to lawmakers on both
sides of the political aisle. The second is the
tolerance that many lawmakers continue to
show toward first-time drunken drivers.
The perspective is the first time you (get
caught driving drunk) its a mistake, and you
shouldnt be punished and that youve probably learned your lesson, she said.
Mishlove said he thinks such proposals
fail because criminalizing first-time offenses
would necessitate an overhaul of Wisconsins
court system. As a result of such a change,
THINKSTOCK
21
PUBLISHED OPINIONS
The Wisconsin Law Journal publishes case digests of every U.S. Supreme Court,
Wisconsin Supreme Court and state Court of Appeals opinion, as well as those cases
decided by the 7th Circuit that apply either Wisconsin or federal law.
In print, we offer shortened digests of the past months notable opinions from those
courts. Split into civil and criminal cases and organized by
practice area, this roundup of digests serves as an ideal case research tool.
Visit wislawjournal.com for links to the full opinions, as well as digests of other
cases. Welcome to our new, and improved, Case Digests:
CIVIL CASES:
Ch. 51 Commitment
WI Court of Appeals District IV
T. B. appeals an order of commitment, an order
for involuntary medication and treatment, and an
order denying postdisposition relief. T. B. argues
that the circuit court erred in denying his postdisposition motion to vacate the order for commitment because, according to T. B., the circuit court
lost competency to adjudicate [his] case when
it failed to make a verbatim record of [his] probable cause hearing, as mandated by WIS. STAT.
51.20(5), and the issue is not moot. For the
reasons set forth below, I reject T. B.s argument
and affirm the orders.
Decision.
Affirmed.
Officials: Kloppenburg, P.J.
2015AP799, Dane County v. T.B.
Immigration Asylum
7th Circuit Court of Appeals
Petition for review granted after Appellant petition for asylum denied. Appellant sought to
escape persecution from Chinas coercive population control program.
Petition granted. Remanded.
Officials: Posner, Kanne, and Hamilton,
Circuit Judges
No. 15-1261, Lishou Wang v. Loretta E. Lynch
PROCEDURAL MATTERS
Motion for New Trial
Reasonable Accommodations
7th Circuit Court of Appeals
Denial of appellant motion for reasons of her
being disabled was improper given the facts.
Reversed and Remanded.
Officials: POSNER, WILLIAMS, and SYKES,
Circuit Judges.
No. 14-1745, Linda Reed v. State of Illinois
ERISA
7th Circuit Court of Appeals
Chiropractic Association v. Independence
Hospital
Service provider not a beneficiary under ERISA
& Insurer not required to utilize fee-for-service
system in paying providers.
Reversed.
Officials: Easterbrook, Kanne, and Williams,
Circuit Judges.
No. 15-1274; 14-3174; 14-2322 Pennsylvania
22
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Disciplinary Proceeding
Attorney license suspended for failure to comply
with OLR investigation, pay bar dues and adhere
to CLE requirement.
License Suspended for two years
Per Curiam.
2014AP2476-D, OLR v. Phillip J. Ramthun
Disciplinary Proceeding
WI Supreme Court
Finding of incompetency leads to attorney suspension of license.
Attorney license suspended
Per Curiam
2013AP2235-D, OLR v. Kristy Joi Downing
Insurance Law
Stranger Oriented Life Insurance
7th Circuit Court of Appeals
Ohio National Life Assurance v. Steven Egbert
Insurance company induced to issue fraudulent
death benefits entitled to attorneys fees and
allowed to retain premiums paid by defendants
in fraudulent scheme.
Affirmed.
Officials: BAUER, POSNER, and EASTERBROOK,
Circuit Judges.
No. 1403664, No. 14-3725, Ohio National Life
Assurance v. Douglas W. Davis
INSURANCE LAW
Insurance Ambiguous Terms
Denial of Coverage
7th Circuit Court of Appeals
The term publication not ambiguous as utilized
in insurance policy
Affirmed.
Officials: KANNE, WILLIAMS, and HAMILTON,
Circuit Judges.
No. 14-1805, Defender Security Company v. First
EMPLOYMENT LAW
Retaliatory Termination
7th Circuit Court of Appeals
Appellant Title VII case dismissed in error
The pleading standards in Title VII cases are, of
course, different from the evidentiary burden a
plaintiff must subsequently meet. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002). It may be
that Huri, once discovery has run its course, cannot
produce evidence to survive summary judgment.
Your defense
is our focus.
www.First Indemnity.net
800.982.1151
26
See Video
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Wrongful Termination
Collective Bargaining Agreement
7th Circuit Court of Appeals
Labor Management Relations Act preempts
appellants tortious interference claim.
Affirmed.
Officials: BAUER, KANNE, and ROVNER, Circuit
Judges
No. 15-1241, Joseph Healy v. Metropolitan Pier
and Exposition Authority
Claim for Unpaid Wages
WI Court of Appeals District IV
Paul Mertz appeals a circuit court order that
affirmed a decision of the Department of
Workforce Development (DWD) dismissing
FAMILY LAW
Paternity Petition
WI Court of Appeals District III
Douglas L. appeals an order dismissing, without
prejudice, his petition to determine paternity.
Douglas argues the circuit court erroneously
concluded that a paternity determination was not
in the best interest of the child. Arika B. crossappeals, arguing the petition should have been
dismissed with prejudice. We reject Arikas argument and conclude the circuit court was authorized to dismiss the petition without prejudice.
However, the court set forth no factual findings
underlying its decision. Because the WIS. STAT.
767.863(1m) best-interest-of-the-child determina-
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28
Juvenile Delinquency
WI Court of Appeals District IV
B.A.H. appeals the circuit courts order that
imposed restitution on B.A.H. after the court
found him not competent to proceed on juvenile
delinquency allegations. Because of B.A.H.s
incompetency, the court never made a finding
as to delinquency and instead found that B.A.H.
was a juvenile in need of protection or services.
B.A.H. argues that, under these circumstances,
the circuit court lacked statutory authority to
impose restitution. I agree because, as B.A.H.
points out, the applicable restitution provision
requires a finding that the juvenile committed a
delinquent act resulting in damage or physical
injury. See WIS. STAT. 938.34(5).
Decision
Reversed and Remanded.
Officials: LUNDSTEN, J.
2015AP1256-FT, State of Wisconsin v. B.A.H
Plain Error
7th Circuit Court of Appeals
Overwhelming evidence overcomes argument
that court made plain error in identifying
appellant.
Affirmed.
Officials: BAUER, KANNE, and WILLIAMS, Circuit
Judges.
CRIMINAL CASES:
www.wislawjournal.com
Sentence Modification
WI Court of Appeals District I
Jovan T. Mull, pro se, appeals orders denying
his motion for modification of the sentences he
received for crimes he committed in 1999. The
circuit court concluded that an alleged change
in parole policy does not constitute a new factor warranting sentencing relief. We agree and
affirm.
Decision.
Affirmed.
Officials: Kessler, Brennan and Bradley, JJ
2014AP2297-CR; 2014AP2296-CR, State of
Wisconsin v. Jovan T. Mull
Child Pornography
7th Circuit Court of Appeals
Court did not err in sentencing, restitution order,
or conditions of supervised release conditions
imposed.
Affirmed.
Officials: MANION, ROVNER, and HAMILTON,
Circuit Judges.
No. 15-1090; 14-2211, United States of America
v. Christopher Bour
Sentence Modification
WI Court of Appeals District II
Daniel Gandy appeals from a judgment convicting
him of second-degree sexual assault of a child
under sixteen years old and from a postconviction
order denying his motion (1) seeking sentence
modification due to a new factor or (2) resentencing because the circuit court relied upon
inaccurate information. We agree with the circuit
court that Gandy neither demonstrated a new
Abuse of Discretion
7th Circuit Court of Appeals
District court did not abuse its discretion in
ordering restrictive conditions when appellant
revoked.
Affirmed.
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30
Dale Ramczyk
Sentence Modification
Court of Appeals District IV
John G. Dahlk appeals an order denying a motion
for sentence modification. For the reasons
stated below, we reverse and remand for further
proceedings on the question whether Dahlks
post-sentence cooperation with authorities
constitutes a new factor that warrants sentence
modification.
Reversed and Remanded. Per Curiam.
Officials: Kloppenburg, P.J., Lundsten, and
Blanchard, JJ.
2015AP717-CR, State of Wisconsin v. John G.
Dahlk
Sentence Modification
Court of Appeals District I
Kelvin D. Kirk appeals an order denying his motion
for sentence modification. He argues: (1) that the
circuit court sentenced him based on inaccurate
information; (2) that he is entitled to sentence
modification based on a new factor; and (3) that
the circuit court should have recused itself from
deciding the postconviction motion. We affirm.
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DNA Surcharge
WI Court of Appeals District II
Tabitha A. Scruggs appeals from a judgment
of conviction for burglary as a party to a crime,
which imposed a $250 DNA surcharge pursuant
to WIS. STAT. 973.046(1r)(a) (2013-14), and an
order denying her motion for postconviction relief
vacating the $250 DNA surcharge. At the time
Scruggs committed the crime, the imposition of a
$250 DNA surcharge for that offense was subject
to the courts discretion; however, by the time
she was convicted and sentenced, the legislature
had made the $250 DNA surcharge mandatory
for all felony convictions. Scruggs contends that,
as applied to her, the mandatory imposition of
the $250 DNA surcharge violates the ex post
Sufficiency of Evidence
WI Court of Appeals District I
Joshua J. Feltz appeals from a judgment entered
after a jury found him guilty of two counts of
repeated first-degree sexual assault of the same
child, contrary to WIS. STAT. 948.025(1)(a)
(2013-14)1 , and from an order denying his postconviction motion. Feltz argues: (1) the evidence
was insufficient to support a conviction on the
second count; (2) the police officers testimony
that the victim appeared to be telling the truth
violated State v. Haseltine, 120 Wis. 2d 92, 352
N.W.2d 673 (Ct. App. 1984); and (3) the prosecutors closing argument referencing the victims
religious schooling improperly enhanced her
credibility. We affirm.
Decision
Affirmed.
Officials: Curley, P.J., Kessler and Bradley, JJ
2014AP2675-CR, State of Wisconsin v. Joshua
J. Feltz
Sufficiency of Evidence
Court of Appeals District II
Dewayne D. Knight appeals from a judgment of
conviction entered after a jury found him guilty of
three offenses, including two counts of robbery
stemming from separate incidents. Knight argues
that the evidence at trial was insufficient to sustain the jurys verdict on count three, and that the
trial court erred in denying his motion to sever
charges. We disagree and affirm.
Affirmed.
Per Curiam.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP2757-CR, State of Wisconsin v. DeWayne
D. Knight
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PARENTAL RIGHTS
Termination of Parental Rights
Court of Appeals District IV
J.R.D., the father of three minor children, M.L.D.,
E.N.D., and V.A.D., appeals the orders terminating his parental rights to the children. The
father argues that the orders should be reversed
because: (1) the petition to terminate did not
give him sufficient notice of the grounds for termination; and (2) the circuit court demonstrated
a lack of impartiality when, according to the
father, it told the Petitioner [mother] to proceed
on different grounds. For the reasons set forth
below, I reject the fathers arguments and affirm.
Affirmed.
Officials: KLOPPENBURG, P.J.
2015AP1726; 2015AP1727; 2015AP1728, N.A.H.
v. J.R.D.
Termination of Parental Rights
Court of Appeals District I
Mr. G appeals from an order terminating his
parental rights to A.K. and from an order denying
his postdisposition motion. He argues that: (1)
the trial court failed to ensure that his stipulation
to grounds was made voluntarily and with an
understanding of the nature of the failure-toassumeparental-responsibility ground; (2) WIS.
STAT. 48.415(6), as applied to him, violates his
right to substantive due process; and (3) the trial
court erroneously exercised its discretion when
it denied him a new dispositional hearing based
upon alleged newly discovered evidence. For the
reasons which follow, we affirm.
Affirmed.
Officials: BRENNAN, J.
2015AP245, State of Wisconsin v. K.G.
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35
VERDICTS&
SETTLEMENTS
wislawjournal.com
Parties reach settlement in lawsuit over childs injuries from eyeglass display
Milwaukee County Circuit Court Judge Richard Sankovitz approved
a $300,000 settlement of a lawsuit involving a minor injured at a WalMart store, and signed a dismissal order July 14, 2014.
The settlement included attorney fees, costs, and payment of medical expenses, as well as $31,220.86 to the minors mother for her loss
of aid, society, comfort and companionship as a result of her childs
injuries. Also included was $150,000 to purchase an annuity for the
minors benefit.
Wal-Mart agreed to pay the $300,000 settlement, and the plaintiffs
were directed to execute a release in full to all defendants.
Case history (according to court documents):
On Nov. 7, 2010, then 4-year-old J.M.A. was injured at a Wal-Mart
store in Monroe when a metal spike on a childrens sunglasses display
penetrated his left eye, causing him to suffer a large corneal laceration
and a cataract.
The minor underwent immediate emergency surgery. Two days
later, he underwent a lensectomy, removal of the cataract, and wound
revision. After a five-month recovery period, the anterior portion of
the minors eye was reconstructed, a corneal scar was removed, and
the minor was given both a corneal transplant and a lens implant.
Vision in the eye, with a corrective contact lens, remained at
20/200, making him legally blind. He wore glasses, not for corrective
purposes, but to protect his remaining eye from injury.
According to the complaint, defendant Syndicate Systems Inc., a
division of the defendant Leggett & Platt Inc., designed and set up the
sunglass display that injured the minor.
The plaintiffs argued Syndicate Systems had failed to exercise ordinary
care with respect to the design, nature, and condition of the sunglass
display, including the use of metal spikes to display the sunglasses.
Cristina Janda
SETTLEMENT
$300,000
Case name: J.M.A., a minor, by
his guardian ad litem, Paul Scoptur,
and Brenda Myers, individually and
as mother and natural guardian
of J.M.A., plaintiffs, and State
of Wisconsin, Department of
Health Services, and Dean Health
Plan Inc., involuntary plaintiffs
v. Wal-Mart Stores East LP, ABC
Insurance Company, a fictitious
insurance company, Syndicate
Systems Inc., and Leggett & Platt
Inc., defendants
Case type: personal injury
Court: Milwaukee County Circuit
Court
Case number:12-CV-2221
Date of incident: Nov. 7, 2010
Disposition date: July 10, 2014
Injuries: large corneal laceration
and traumatically induced cataract
Special damages: Pain, medical
and hospital expenses, future loss
of earning capacity, attorney fees
and costs
Plaintiffs attorneys and firm:
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36
www.wislawjournal.com
SETTLEMENT
$182,696.01
Case name: Thomas and Doreen
Sollman, and Gallo Manufacturing.
Co. Inc., plaintiffs, and General
Casualty Company of Wisconsin
and Anthem Insurance Companies
Inc., involuntary plaintiffs v. James
Ferguson, Nassco Inc., and The
Cincinnati Insurance Co., defendants
Case type: torts
Court: Racine County Circuit
Court
Case number:10-CV-3885
Date of incident: Sept. 7, 2010
Disposition date: July 30, 2014
Injuries:facial fractures, chipped
teeth and impacted sinus cavity
Special damages: past
and future medical expenses,
pain and suffering, loss of
ability to enjoy life, costs and
consequential damages, spouses
related claim for loss of society
and companionship, punitive
son had been acting within the scope of his employment at Nassco Inc.
at the time of the incident.
Cristina Janda
37
Parties settle in lawsuit involving child hit by car while exiting bus
Judge Jeffrey Conen of the Milwaukee County
SETTLEMENT
Circuit Court approved a minor settlement totaling $87,500 in a personal-injury lawsuit.
The settlement, reached with ArgonautMidwest Insurance Co., included $21,875 to
Case name: H.G. and Zaid Gebremehin,
the plaintiffs attorneys for fees, $2,348.91 to
elbow injuries
Special damages: medical and hospital
the plaintiffs attorneys for costs, $3,000 to the plaintiffs, and State of Wisconsin Department
minors mother, $50,788.63 to be deposited
of Health Services and United Healthcare of
expenses, pain and suffering, restricted
into an interest-bearing account for the benefit
Wisconsin Inc., involuntary plaintiffs v. The
enjoyment of life, mothers related claim
of the minor, and $9,487.46 for subrogation.
Bus Stop LLC, Argonaut-Midwest Insurance
for loss of society and companionship,
Case history (according to court
Co., and Tammy Rose, defendants
compensatory damages, attorney fees and
Case type: personal injury
documents):
costs
Court: Milwaukee County Circuit Court
Plaintiffs attorneys: Michael Trager of
H.G., a minor, was a passenger on a school bus
operated by the defendant Tammy Rose and owned Case number: 12-CV-008078
Phillips, Cymerman & Stein SC, Milwaukee
Date of incident: June 9, 2011
Plaintiffs experts: Dr. Scott Van Valin,
by the defendant The Bus Stop LLC. The defendant
Disposition date: July 8, 2014
Argonaut-Midwest Insurance Co. provided insurpediatric orthopedic surgeon at Childrens
Injuries: fractured shin bone, and head and
ance coverage for The Bus Stop LLC, including
Hospital of Wisconsin, Milwaukee
coverage for negligence by uninsured motorists.
vide H.G. with adequate warning of the imminent risk of harm, exposing
Rose stopped the bus for H.G. to exit. When
H.G. to an unreasonable risk of harm and failing to ensure H.G. was safe
exiting, H.G. was struck by a vehicle operated by an unknown driver.
and protected upon leaving the bus.
The driver failed to yield to H.G. while she was crossing the street.
In addition, the plaintiffs contended that the unknown driver, an
H.G. suffered injuries to her head and elbow, and a fractured shin bone.
uninsured
driver covered by The Bus Stops insurance policy, was negH.G. and her mother, Zaid Gebremehin, brought negligence claims.
ligent
in
failing
to act as a proper lookout, driving inattentively, failing to
Specifically, the plaintiffs argued that The Bus Stop failed to follow adequate
control
his
vehicle
and driving too fast for the conditions.
safety precautions and failed to properly train and supervise its bus drivers.
Cristina Janda
The plaintiffs also asserted that Rose was negligent in failing to pro-
$87,500
SETTLEMENT
$83,859.98
www.wislawjournal.com
$68,000
www.wislawjournal.com
39
Practice Management
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By Jessica Stephen
Law Journal
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40
www.wislawjournal.com
Practice Management
Lenn Eidson Espenschied resisted writing
about grammar.
Im not a grammarian; I didnt study English, even in college, said Espenschied, who
wrote The Grammar and Writing Handbook
for Lawyers.
But, one day, she knew she had found her
calling.
I was in the law office one day and a
partner came storming in, and he was irate
because an associate didnt understand that
irregardless is not a word. He was absolutely losing it, so I decided that day I would
write the grammar book after all because I
could see these lawyers needed it.
The foundation for her future was laid in
1994, when the National Council of Teacher
of English recommended deleting grammar
from school curricula. Since then, students at
all levels have largely lacked formal instruction in grammar.
Now, Espenschied said, those students
are emerging from law schools.
And their lack of grammatical knowledge
Jim Cole
Jim Cole brought
a huge amount
Mediatorexperience
& Arbitrator
of knowledge,
and skill
to our dispute settlement.
If your disputes require
Matej Kosmrlj, Managing Director,
expertEuropean
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call
Jim Cole.
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Member:
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& Arbitrators
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Designated:
The Best Lawyers in America, Alternate Dispute Resolution
(2005 -)
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(Madison Magazine, 2004 -)
Jim Cole
Mediator & Arbitrator
Who Gets
What
Attorney prepares will for a client who is
matriarch to a complex set of families and
potential beneficiaries. At her death, some
are unhappy with their share and sue the lawyer.
Explore likely complications when doing an estate
plan and document everythingincluding
Designated:
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www.wislawjournal.com
41
Practice Management
You dont have to remember all the rules of grammar, but you do have to have a flag that goes
up to check it. Then, you need to know to check it and get it right.
Reading List
The Grammar and Writing Handbook for Lawyers,
by Lenn Eidson Espenschied
Legal Writing: Getting it Right and Getting it
Written, by Mary Barnard Ray
Things Your Grammar Never Told You, by Maurice
Scharton and Janice Neuleib
Legal Writing in Plain English, by Bryan A. Garner
Writing Tools: 50 Essential Strategies for Every
Writer, by Roy Peter Clark
www.wislawjournal.com
Practice Management
Jessica Stephen
Special to the Wisconsin Law Journal
www.wislawjournal.com
43
Brenner
Cameli
Hansen
Peterson
Reinhart earns
nationwide
honors
Reinhart Boerner Van
Deuren s.c has received
Benchmark Litigation 2016s
highest honor being named
Schlinsog
a highly recommended law
firm. The publication also recognized attorneys Laura
Brenner, Mark Cameli, Scott Hansen, David Peterson
and Allen Schlinsog Jr.
Reinhart also had 46 attorneys recognized as 2015
Wisconsin Super Lawyers and 19 recognized as Super
Lawyers Rising Stars.
Also, U.S. News Best Lawyers highly ranks
Reinhart in numerous practice areas, within Wisconsin
44
www.wislawjournal.com
26 Quarles attorneys
named Super Lawyers
www.wislawjournal.com
Tom Watson
45
Closing Arguments
INACTION ANY DAY OVER PARTISAN
WITCH HUNTS
QUESTION:
Is the breaking up of the GAB justified?
Will the breaking up of the states Government Accountability Board into two agencies controlled
he idea behind the GAB turning
mostly by representatives of the main political parties result in nothing more than gridlock and inaction?
the administration of elections
and campaign finance over to a
Our first columnist this month argues, that even if thats the case, those outcomes will be better
than the political witch hunts that critics contend the GAB was able to indulge in under ostensibly
nonpartisan group of judges had
nonpartisan overseers. In other words, if inaction is the price of preventing the agencies of
merit. But an idea, in order to be shown
government from being used for political purposes, so bet it.
to be good, must eventually withstand
The same columnist Rick Esenberg, president and general counsel of the Wisconsin Institute
the test of experience.
of Law & Liberty also provides the starting point for the second Closing Arguments article this
The second Doe investigation was
month. In a piece that appeared Nov. 2 on the conservative news outlet Right Wisconsin, Esenberg
implied that journalists are being hypocritical when they argue that politicians should not be
facilitated by the GAB at the instigation
allowed to keep the names of campaign donors secret and then go on to vigorously defend their
of the Milwaukee County District
right to cite anonymous sources.
Attorney. Whatever the DAs motives, his
The piece, entitled What the Press Doesnt Get about Freedom of Speech, caused quite a
membership in one particular political
stir, especially since it came around the same time that Republican lawmakers were voting for
party cannot be overlooked.
legislation that will prevent them and other politicians from having to disclose the names of donors
on official documents. Brendan Fischer, general counsel at the Center for Media and Democracy,
The states former John Doe law
argues this month that Esenbergs arguments fail to take into account important differences and,
allowed him to launch an investigation
in doing so, lead to a false comparison.
into almost the entire political
Now, gentlemen, to your corners.
infrastructure of the opposing party.
From the beginning, the hypothesis the
no matter the good intentions behind the agency,
DA was working with was beset by flaws. This is
then it was in desperate need of reform.
evident in the fact that every court that has reached
From our current vantage point, its easy to see
the merits of the prosecutors view of the laws
that this type of misadventure was likely from the
scope has ruled against it.
beginning. Retired judges have usually stopped
Even if GAB officials and
working for a reason and could have been expected
prosecutors thought that these
to be willing to spend only so much time on their
flaws could be overcome, they
duties related to the GAB. Judges, moreover, are
should have understood them. They
by their disposition and experience used to ruling in
should have appreciated the danger
response only to what others have brought before
to freedom of expression entailed
them. This tendency made it likely that the board
Rick Esenberg
by aggressive criminal investigations
would be highly dependent on staff.
of political activity and tempered
The GAB staff, even under the best of
their prosecutorial zeal accordingly.
circumstances,
was likely to have its own biases.
But they did not. The nature of their suspicions
Regulators, for example, generally like to regulate. If
might have led to a civil investigation, but they
partisan bias is introduced to the mix and there is
instead pursued a criminal one. They cast a
some very uncomfortable evidence emerging that it
broad round up the usual suspects net in an
may have been youve got the potential for disaster.
extraordinarily aggressive way using predawn
And disaster is precisely what happened.
raids that are not the normal stuff of campaignThe current plan to return to a board with a
finance law. They accompanied these unusual steps
calculated
partisan balance has its own flaws. The
by another one a gag order that prevented those
board, for instance, may fail to act when it should.
who were targeted from telling anyone but their
But when it comes to the regulation of speech, I
own lawyer what was being done to them.
would prefer inaction to action that targets protected
Nevertheless, those targets knew that the
expression. I would prefer a truce between partisans
investigation, like the first and largely ineffectual
even one that is rooted in deadlock to the potential
Doe investigation, was likely to be beset by leaks.
for partisans to use regulation as a political weapon.
If the goal was to send a chilling message to
advocacy groups throughout the state, this was the
Rick Esenberg is president and general counsel
way to do it. If this was the actual fruits of the GAB,
of the Wisconsin Institute for Law & Liberty.
46
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Closing Arguments
www.wislawjournal.com
47
Construction accidents
Product liability cases
Automobile crashworthiness
cases
Medical devices
Medical negligence
Nursing home negligence
Mesothelioma
Class action wage and
hour disputes
Class action overtime cases
Volkswagen
Metal-on-metal hips
Vaginal mesh