Wisconsin Law Journal - October 2015

VOLUME29 | NUMBER10
OCTOBER 2015
www.wislawjournal.com
Taking
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LIMB LOSS CASE LEADS TO REVISITING

OF MEDICAL-MALPRACTICE LAWSUITS
INSIDE:
Disciplinary Actions
Commentary
Case Digests
Practice Management
Whos Doing What
PA G E 10
PA G E 1 4
PA G E 2 6
PA G E 4 0
PA G E 4 4
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October 2015 Volume 29, No. 10
CONTENTS
10 Disciplinary Actions
STAFF BY PHOTO KEVIN HARNACK
15 Bench Blog

Judge declines to like defamation on Facebook
17 Commentary
TV Time: Billable Hours for watching 48 hours?
The expanding Fourth Amendment
34 Verdicts & Settlements
20
MALPRACTICE LIMITS
Is the $750,000 limit enough to cover non-ecomonic damages in medical-malpractice suits?
39 Around the Water Cooler

Is there a place for shielding lawmakers
communications from public view?
4 4 People and Places
Whos Doing What
Remembering Justice N. Patrick Crooks

46 Closing Arguments
Should appellate judges be allowed to base
decisions on their own Internet research?
STAFF PHOTO BY KEVIN HARNACK
40
Pro se litigants becoming more common in

family-law cases
Law-school debt not as easy to pay

off as many hope
GOING TO BAT FOR ONES SELF
ON COVER: Milwaukee attorney Mike End, one of

a shrinking number of Wisconsin plaintiff lawyers
who specialize in medical-malpractice cases.
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Wisconsin Law Journal is live 24/7 at wislawjournal.com. Here are the stories and special
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Should the two Wisconsin Supreme Court

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5. Justice Crooks dies in chambers at state Capitol
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News & Views
Rethinking the business

of family law
Number of pro
se litigants on
the rise
Erika Strebel
erika.strebel@wislawjournal.com
When Susan Hansen, a Milwaukee attorney,

started her career in family law, about 10
percent of the cases of that sort filed in circuit
court were brought by pro se litigants.
Now, about 30 years later, pro se litigants
are believed to be the source of well more than
half of all the family-law cases filed. Although
there is no official count, Hansen said, the
state estimates that about 70 percent of familylaw cases are now brought pro se.
That the number of pro se litigants is
increasing is nothing new, said both Hansen

and Elise Ruoho, a Madison family attorney.
Of far greater significance are recent
changes in the characteristics and mentalities
of those who make up the pro se pool.
Doing themselves in
Ruoho has encountered, in both her own
practice at Cullen Weston Pines & Bach LLP
and in the clinics that she volunteers for
in Dane County, what she believes to be a
new group of pro se litigants. It is made up
Family Law, continued on page 8
News & Views
Family Law, continued from page 7

primarily of millennials who are steeped in
technology. Many times, its people who can
afford legal counsel but choose not to because
they believe they can maneuver through a
divorce or other family law action themselves.
That confidence, Ruoho said, is often
misplaced.
In divorce and paternity cases they are
dealing with complex issues and the emotional
side, she said. Thats also where the role
of the attorney comes in working toward
making the best decision for them and their
families without the emotional component
driving it. People under stress dont necessarily make the best decisions. It may be the best
decision in the moment but not the best one
long term.
Hansen said the trend toward pro se litigation has emerged for a variety of reasons.
Some people simply do not value the services
that family lawyers provide.
There are many individuals who could
The greater number of pro se litigants is a sign

of a fundamental change that is taking place in
family law. Clients, for the most part, no longer
want to go the adversarial route in divorces and
other legal disputes.
Susan Hansen
Milwaukee attorney
afford a lawyer who dont necessarily see the
cost-benefit connection, she said. They dont
look to the cost of a lawyer and see that they
are getting value for that.
Many pro se litigants, Ruoho said, are
learning the hard way and the expensive way.
Clients who litigate pro se cases often end up
going back to court, sometimes to seek a postjudgment modification.
Usually, though, its too late. The courts can
review custody rulings, but divisions of prop-
erty in divorce cases are usually final while

relief from a judgment requires meeting a high
standard of proof.
Ruoho recently took part in a case in which
a pro se couple paid a hefty price for failing to
recognize that the terms of a support agreement were inaccurate.
Had they gone through an attorney they
would have avoided having to spend close to
more than $30,000, if not more, she said.
Looking for the right fit
Hansen said the greater number of pro se
litigants is a sign of a fundamental change that
is taking place in family law. Clients, for the
most part, no longer want to go the adversarial
route in divorces and other legal disputes.
And lawyers, for whatever reason, are not
viewed as a means of avoiding conflict.
Too often, the perspective is that you
need a lawyer as a weapon, a legal weapon
to protect yourself or have an adversarial
dispute to get the most you can from the legal
proceeding, Hansen said. I think that some
of that is now perhaps an old-fashioned view.
The general public, Hansen said, often cast
family-law attorneys into the role of formidable
court adversaries and fail to see they can
also be problem-solvers who clear up legal
disputes using mediation or similar means.
Catering for a different crowd
Both Ruoho and Hansen agree that much
good would come from merely ensuring that
the public is better aware of their legal options.
Toward that end, Ruoho has been working
with the State Bars family-law practice section
to develop a brochure containing useful information about the legal system and the choices
that clients often must make. Ruoho also said
Family Law, continued on page 9
News & Views
Family Law, continued from page 8

that she and her colleagues are trying to use
their firms website and marketing endeavors
to place an emphasis on education.
The goals of the section and section board
are to improve relations with the community
through our clients, she said.
That involves getting information to the
public about collaborative divorce, mediation
and arbitration. It also means convincing
potential clients that divorces, contrary to
what is often portrayed on television, arent
always rife with conflict.
Hansen and her firm, Hansen &
Hildebrand, S.C., have decided to try a
new approach. They have established what
was initially called the Milwaukee Family
Mediation Center and then quickly became
the Family Mediation Center.
The centers priority is education, Hansen
said. Couples who go there can pay $250 for a

joint-education session, during which a neutral
lawyer will lay out all their options.
Wed like to give people a place to go
that isnt a law firm but that is an education resource she said, and then if
they choose mediation they have the skilled
and trained individuals who can help them
navigate the process.
Hansen said the center also offers what she
calls interdisciplinary mediation, which involves a neutral lawyer who acts as an adviser
and educator.
Typically, its You represent the husband,
you represent the wife, and were stuck. You
got to mediation to hammer out a resolution,
she said.
The kind of mediation she is offering is
aimed at preventing the parties from ever
getting stuck.
Its like contract mediation, she said. Im
seeing mediation in a different light, which at

the very front end is about being a source of
education, option generation and problemsolving before theyre stuck.
Hansen said she first thought the center
would be nothing more than a small community resource and would need only a voice-mail
system to handle the calls that would come in.
It has instead proved so popular that additional
employees have been hired to answer the
phones and offshoots have been opened in
Brookfield and Mequon.
Hansen said she believes no one else in
Wisconsin is offering similar services.
My competition is all of the pro se couples
who are speaking to no one, she said. So I
dont see this mediation center as something
that takes away business from private lawyers.
I see it as an education resource and support
system for couples who would otherwise hire
no one at all.
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News & Views
DISCIPLINARY ACTIONS
The latest complaints filed and discipline ordered against attorneys licensed to practice in state
Stories by Erika Strebel
Attorney faces discipline for

smuggling drugs to clients
An attorney faces a three-year suspension
of his law license in Wisconsin for discipline
he received in Michigan, including smuggling
drugs to a client in jail.
John Waters has been licensed to practice
law in Wisconsin since 2002. He earned his
degree from the University of Wisconsin Law
School in 2000.
According to the State Bars website, his
license had been suspended for not submitting
a trust-account report and for not completing
continuing-education requirements. Waters
has no disciplinary history in Wisconsin,
according to the Office of Lawyer Regulation.
In a complaint filed Aug. 13, the OLR
alleged that Waters, who practiced in Grand
Rapids, Mich., failed to report that his
Michigan license had been suspended in 2012,
when he was convicted of two felony counts of
delivery of a controlled substance.
According to court records, he was found
guilty of smuggling a prescription painkiller,
Suboxone, to a client in a county jail in 2011.
Waters was sentenced to spend between 14
months and 7 years in prison, according to
court filings. He was discharged from prison
in June.
By law, he was supposed to report the
convictions to the OLR within 20 days of
the June 2013 notice issued by Michigans
Attorney Discipline Board.
The State of Michigan Attorney Discipline
Board in June 2013 issued a notice that
Waters Michigan license was to be suspended
retroactively for the two convictions and for
misconduct involving two of his clients. The
board also found that Waters had failed to
properly communicate with clients, did not
refund unearned fees or release two client files
and did not cooperate in an investigation of
the misconduct.
The board ordered Waters to pay $2,600 in
restitution and $870.68 in court costs.
In February, the Attorney Discipline board
10
issued a notice adding another year to Waters

suspension, noting that he had failed to
comply with the 2013 order.
The OLR, according to its complaint, is
asking the Wisconsin Supreme Court to
impose reciprocal discipline on Waters. The
punishment would be a three-year suspension
of his license to practice law in Wisconsin.
State Supreme Court formally

reprimands Chicago attorney
The Wisconsin Supreme Court has
publicly reprimanded a Chicago attorney for
practicing while his license was suspended.
Charles Boyle earned his degree from
Loyola University School of Law in 1966.
He has been licensed to practice law in
Wisconsin since 1985. According to the
State Bar and OLR websites, his license is in
good standing.
Boyle has never been professionally disciplined in Wisconsin, though his license has
been administratively suspended a number
of times for not paying dues or reporting his
completion of continuing-legal-education requirements, according to the Office of Lawyer
Regulation. The last time that happened was
in 2006.
Wednesdays discipline stems from an
Office of Lawyer Regulation complaint filed
in October 2012 alleging nine counts of
misconduct related to Boyles representation
of a widow in Racine County Circuit Court
and his behavior in the U.S. District for the
Northern District of Illinois. The complaint
was amended in June 2012.
The Office of Lawyer Regulation alleged
that Boyle, while representing a woman in a
civil case in Racine County Circuit court, filed
motions and appeared in court while his Wisconsin license was suspended for failure to
report his completion of continuing-education
requirements and not paying dues. According
to the complaint, he tried to get permission to
appear pro hac vice in Racine County.
When a judge refused to grant permission,

he argued with him and later continued to
pursue the matter in a draft order. The OLR
also alleged that he had lied to the Racine
County Circuit Court Clerk about a filing
deadline and his pro hac vice application.
The complaint also alleged Boyle broke
several rules of the federal court, saying that
he lied about being a member of the courts
trial bar while representing a woman in a
case against a Chicago school board in the
Northern District.
The OLR asked that Boyles license be suspended for two months and a court-appointed referee, after reviewing the facts of the
case, suggested a three-month suspension.
However, the high court wrote in its per
curiam decision that it would only consider the
part of the complaint related to the client Boyle
represented in Racine County Circuit Court.
The justices agreed with all five counts of
misconduct the referee and OLR identified in
the Racine County court case. Still, they disagreed with the recommendation that Boyles
license be suspended, noting that Boyle had
been licensed to practice in the state for more
than 30 years and had no disciplinary record.
On the other hand, Attorney Boyle should
understand that his experience as a lawyer
should not be used as an excuse to ignore
the particularities of the ethical rules and the
local court rules that govern his conduct or to
stretch the truth in an effort to pursue what he
believes is a just outcome, the court wrote.
The court said Boyle lied and broke ethical
rules, but did so to help his client, whom he
represented pro bono.
We are not dealing here with a lawyer who
is acting improperly for his own benefit, according to the court, but rather with someone who acted overzealously and improperly
while trying to help a disadvantaged person
without compensation.
Justices Ann Walsh Bradley dissented,
joined by Shirley Abrahamson, contending
that Tuesdays public reprimand understates
the gravity of Boyles lies to the Racine County court and does not consider the bigger
News & Views

picture of Boyles pattern of conduct. Bradley
noted that Boyles license was suspended in
Illinois in July for converting trust funds in
a medical-malpractice lawsuit. Bradley also
argued that the decision did not adequately
explain why the court had not considered the
five counts of misconduct alleged to have
occurred in the Northern District.
Sheboygan attorney faces public

reprimand for repeat OWIs
A Sheboygan attorney faces a conditional
public reprimand for being convicted a fourth
time of drunken driving.
Robert Horsch has been licensed to practice
law in Wisconsin since 2003. He earned his

law degree from the University of Dayton
School of Law.
According to the State Bar and Office of
Lawyer Regulation websites, Horschs law
license is currently suspended for failure to
pay dues and report completion of continuing
legal-education requirements. He has been
privately reprimanded for practicing law while
his license was suspended and for being
convicted of drunken driving.
Horsch was convicted in 1999, 2012 and
2010 for drunken driving.
According to an Office of Lawyer
Regulation complaint filed Sept. 21, he was
convicted of his fourth OWI in April and of
driving with a suspended drivers license. He
was sentenced to eight months in jail, with

Huber privileges, and his drivers license was
revoked for three years.
The OLR alleges that Horsch did not notify
the OLR or the Supreme Court Clerk of his
convictions, violating Supreme Court rules.
The OLR also contends that Horsch refused
to cooperate with its investigation into the
convictions earlier this year.
In all, the OLR alleges he committed three
counts of misconduct.
The OLR is asking that the court publicly
reprimand Horsch and require him to
participate in a drug-abuse and mental-health
assessment, submit to drug monitoring for
two years, and abstain from alcohol and drug
use while being monitored.
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13
Commentary
14
Commentary
COMMENTARY
BENCH BLOG
Judge declines to like defamation on Facebook

In this age of cyberspace incivility, do remarks
on Facebook that impugn a persons reputation
and character constitute defamation?
In the case of Laughland v. Beckett, the Court
of Appeals answered yes.
The Facebook account
John Beckett created a Facebook account
under the name of Stephen Laughland and posted
Judge Jean
a photo of Laughland. At the time, Laughland was
DiMotto retired
an adjunct lecturer at various Milwaukee-area
in 2013 after
schools, including Marquette University. Indeed,
16 years on
the picture Beckett used on the faux account was
the Milwaukee
from Marquettes website.
Beckett put posts up on the Facebook page
County Circuit
over a period of four months. The initial post
bench and now
called Laughland a preying swindler and
serves as a
remarked, Since he knows so much about bank
reserve judge.
manipulation Marquette must have beleived (sic)
She also is of
that he was an excellent choice to teach Bank
counsel with
Management.
Nistler Law office
Pretending to be Laughland, Beckett later
posted, Manipulation, control and, deceipt (sic)!
SC. She can
I would like to continue my useless life. I have no
be reached at
problem being a debt to society as long as I can
jeandimotto@
continue (to) manipulate people, banks, and credit
gmail.com.
card companies. I wonder what my children think
about having such a loser for a father.
In another post on the fictitious Laughland page, Beckett wrote, It
is nice being a loser and taking advantage of banks and credit card
companies. I am not sure why more people have not caught onto the
fact that I am a low life manipulative person.
Other posts asserted that Laughland defrauded banks, was
corrupt, and engaged in underhanded business practices.
Beyond posting these remarks, Beckett requested that Laughlands
friends become friends of the Facebook page. As a result of his
efforts, six people decided to like the page.

One of Laughlands acquaintances emailed Laughland in the fourth
month to say, I received a (Facebook) friend request from you however,
it must be someone using your name. It says horrible things about you.
Laughland conducted a Google search and found the Facebook account.
Laughland initially suspected the perpetrator was Jean Placke, a
woman with whom he was enmeshed in a child-custody battle. It
was later discovered that Beckett, Plackes on-and-off boyfriend, was
responsible for everything on the account. Beckett had never met
Laughland.
Bench trial
Laughland sued Beckett for defamation. The case was tried without a
jury before Milwaukee County Circuit Judge Christopher Foley. Beckett
asserted that he had not defamed Laughland but merely expressed
opinions based on factual information culled from public records.
On both Google and the Wisconsin Circuit Court Access website,
Beckett had found records of Laughlands foreclosures and bankruptcies. He concluded that Laughlands financial difficulties were the result
of Laughlands being irresponsible and reckless.
Foley disagreed with Beckett that these records allowed him to publish so-called opinions suggesting that Laughland was a swindler and
bank manipulator. Rather, the statements were defamatory. He found
that Becketts connection to Placke motivated him to try to impress her
and was the source of the malice and ill will toward Laughland.
Foley awarded $15,000 in general damages and $10,000 in punitive
damages. Beckett appealed.
Appellate opinion
The District I Court of Appeals decision was written by Judge Joan
Kessler. After dealing in a matter-of-fact way with a question concerning
the statute of limitations, she turned to the nature of the posted material
and Becketts reasons for appealing Foleys ruling.
Beckett first asserted that the statements were substantially true
Facebook, continued on page 16
15
Commentary
Facebook, continued from page 15
since the doctrine of substantial truth permits
slight inaccuracies of expression. He argued that all his posts on the Facebook page
were grounded in public records.
But the court noted that Beckett had
claimed that Laughland defrauded banks,
was corrupt, a low life loser and a
swindler who used underhanded business
practices and manipulated banks and credit
card companies. The court concluded that
none of the public records contained evidence
to support any of these allegations.
Instead of being substantially true, the
posts were found by the court to consist
solely of Becketts speculation.
Moreover, the court rejected the second
ground that Beckett had cited for his appeal,
in which he had argued the posts were
protected as opinions. The court noted that
merely phrasing communications as opin-
ions, suspicions or beliefs does not prevent

them from being defamatory. Here, there was
no factual basis for Becketts opinions.
Lastly, Beckett questioned whether Laughlands reputation had indeed suffered any
harm. Beckett noted that only one person had
reported the Facebook page to Laughland.
The court agreed with Foley that Becketts
posts were not only meant to besmirch
Laughlands reputation but also had the
intended effect.
For example, the acquaintance who
reported the page to Laughland characterized
the posts as saying horrible things about
him. Moreover, at least six friends ended up
viewing the page, which could be accessed
by other social media users as well.
It also noted when analyzing the damages
award that Laughlands Google search of his
own name had shown the Facebook page as
the first hit, so I knew everyone could see it.
Accordingly, the appellate court affirmed Foleys
READ MORE ONLINE
decision concerning both liability and damages.

Commentary
What a pathetic attempt to win a womans
heart by defaming the father of her child
because she was in a custody entanglement
with him! In this day of digital anonymity,
though, this suitor almost got away with it.
The case is recommended for publication
because it is an unprecedented look at defamation in the context of social media.
Social media increase the risk of far-reaching defamatory damage, as attested to here
by the Google search results showing the
Facebook page as the first hit. Still, this case
found evidence that a mere six peoples liking the page and one acquaintances email
about it were sufficient proof of harm, given
the false and derogatory posts.
Finally, this case does a good job of
distinguishing factual foundations from
opinions and speculative inferences.
Reserve Judge Jean DiMotto regularly provides insight on

recent court decisions for Wisconsin Law Journal.
View all of her columns at wislawjournal.com.
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16
Commentary
ON ETHICS
TV Time: Billable Hours for Watching 48 Hours?

Lawyer suspended for turning to television to do case research
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
With the advent of fall, the kids are

back in school and football season
has begun. Perhaps even more
important to me a child of the 70s
who was raised with the TV as a
babysitter a new season of shows
is on the air. Indeed, television is an
important part of the lives of many
Americans.
So it was a bit disappointing when
I recently read about a discipline case
that arose in Tennessee. A lawyer
there was suspended for a year
because of charges brought against
her for her preparation of a lawsuit
concerning the death of her clients
daughter. And what exactly was the
crime leading to the suspension?
Nothing more than relying on TV
shows to prepare for the case.
The lawyer in this instance decided
it would be a good idea to watch
certain shows to gain further insight
into the rather unusual claims that
she was bringing against her clients
son-in-law. Those, namely, were that
he had killed his clients daughter by
pushing her down the stairs.
His motive was believed to be
his desire to collect on a $1 million
insurance policy. To more effectively
represent her clients, the lawyer in
question wanted to do some research
on similar instances of alleged
homicide.
Here its important to keep in mind
that, in preparing for the case, she
didnt watch just any television show.
No, the programs she billed for were
48 Hours, Perry Mason and others of a
similar quality. For 48 Hours alone, she
billed her clients more than $5,000.
This just goes to show that
television can be both enlightening
and informative. Indeed, even Donald
Trump noted not long ago that he
does not have military advisers on
his staff. No, rather than directly

employing experts, he suggested he
needs no better guide for his policies
than time spent watching a few
shows featuring retired generals.
Even though so prominent a figure
as Trump apparently does not disdain
the practice, the bar authorities in
Tennessee could not see the wisdom
behind allowing lawyers to watch TV
in order to gain expert knowledge.
The authorities, and subsequently
the states Supreme Court, instead
decided to suspend the attorney
for her reliance on this rather novel
research method.
Also upsetting to the court and
various other authorities were the
lawyers attempts at charging her
clients $140,000 for performing
three-months worth of work, as well
as her later threat to sue the clients
and their new lawyer.
The court, expressing extreme
disappointment in the lawyers
conduct, noted that a comment
concerning Rule 1.5 (Fees) provided
that, A lawyer should not exploit a
fee arrangement based primarily on
hourly charges by using wasteful
procedures. The lawyer was believed
to have told the clients that she would
bill them $250 an hour. Although, this
might have been true, she often then
go on to bill for 20-hour days.
Despite all this, I disagree that
charging a client for watching
television in order to prepare for
a case is per se impermissible. A
legitimate argument can be made that
viewing a television show for research
purposes is akin to watching an
Internet webinar. Indeed, the ethics
rules would suggest that preparing in
such a manner is permissible.
In particular, a comment to Rule
1.1 (Competence), states that, . . .
Perhaps the most fundamental legal

skill consists of determining what
kind of legal problems a situation
may involve, a skill that necessarily
transcends any particular specialized
knowledge. . . . And there is no
dispute that one of the purposes of
attending continuing-legal-education
courses, whether in person or over
the telephone or Internet, is to
learn about prospective difficulties
so that you can spot them before
encountering them. In trying to show
how much of an aid TV can actually be
to a lawyer, lets consider a legitimate
television show, such as Frontline.
Is it too incredible to believe
that TV research, as long as it were
conducted in a proper way, would
be inappropriate to bill for? In truth,
would it be any worse than some
education courses that seem to come
with pre-approved credits?
In the Tennessee case, I was not
especially troubled by the methods
the lawyer used in her research. For
one, the true-crime shows that she
was watching often end with a twist
or turn that is impossible to foresee.
If lawyers can benefit from
becoming familiar with the
unexpected denouements of TV
shows, then why not charge for the
time spent watching them? In the
Tennessee case, it was in fact what
the lawyer charged not what she
was charging for that led to her
downfall.
Also, its abundantly clear that
she was watching the wrong shows.
A better choice would have been
Matlock or Law & Order.
Finally, a word of caution: Although
most of us like to enjoy some
popcorn or chips while watching TV,
its probably best not to charge clients
for our snacks.
17
Commentary
ON THE DEFENSIVE
The expanding Fourth Amendment

Whether a home is rented or owned, certain areas are still considered private
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.
18
In recent years, some of the

biggest cases before the United States
Supreme Court have dealt with how
Fourth Amendment protections should
apply in modern circumstances.
Should, for instance, cell-phone
contents be shielded from unreasonable searches and seizures? Should
the police be permitted to use drug
dogs to sniff out places that an officer
would otherwise be forbidden to
enter? Should it matter if the dog is
sniffing a vehicle rather than a home?
As a general rule, defendants can
prevail in Fourth Amendment claims
only if they can show that the government has intruded into a place where
a person would have a reasonable
expectation of privacy. Yet in 2012,
Supreme Court Justice Antonin Scalia,
writing for the majority in the case of
United States v. Jones, resurrected
what is known as the common-law
trespassory test.
This test greatly expands the reach
of the Fourth Amendment. Now, if a
defendant can show the government
trespassed into a constitutionally
protected area, he or she can secure
the suppression of any contraband
found during that intrusion.
Clearly, the Fourth Amendment
protects ones home from government intrusion. What some may not
recognize, though, is that there is an
area around a home known as the
curtilage that receives the same
degree of protection.
For example, if a police officer
brought a drug dog onto the front
porch of a persons house a place
that would clearly be within the curtilage that act of trespassing would
result in the suppression of the derivative evidence. But many cases are not
THINKSTOCK
quite so clear-cut.
And because the notion curtilage
lacks a strict definition, courts have
struggled with how to apply it to multiunit dwellings. Among the questions
without clear answers is: Should a
person receive Fourth Amendment
protection over areas that he or she
shares with other tenants?
This month, the Wisconsin Supreme Court wrestled with that question in the case of State v. Dumstrey.
At issue was whether a locked, secure
underground parking garage should
be considered part of the curtilage. If
it should, then any contraband found
by officers while they were technically
trespassing would be suppressed.
The United States Supreme Court
has not provided specific guidance
in this area. But, as far back as 1974
in the case of Conrad v. State, the
Wisconsin Supreme Court described
a common storage room of an
apartment house as clearly within
the curtilage. Stare decisis should

require the court to make the same
finding for the locked underground
parking garage.
In any event, the Wisconsin Supreme Court and lower courts should
follow the lead of the United States
Supreme Court by broadly interpreting
the Fourth Amendment. Especially in
urban areas, more and more people
are electing to rent or otherwise live in
communal circumstances.
These people expect that nobody,
including the police, will trespass
into locked, secured areas. If courts
permitted the police to search storage areas or underground parking
garages, the Fourth Amendment
would be given two meanings one
for those who rent and one for those
who own their home.
A holding of this sort would be
inconsistent with the principles the
Fourth Amendment was written to
uphold.
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Cover story
Mike End, a lawyer in Milwaukee, says

Wisconsins $750,000 cap on non-economic
damages, as well as other restrictions on
medical-malpractice lawsuits, has caused
plaintiffs lawyers to become much more
selective about the cases they bring to court.
20
Cover story
Taking
the cap
The limit on non-ecominic

damages filed under a
medical-malpractice
lawsuit is currently being
challenged in Wisconsin
Erika Strebel
erika.strebel@wislawjournal.com
A possible misdiagnose that led to a patients
losing her limbs may prove to be the case that blows the
cap off medical-malpractice lawsuits in Wisconsin.
Ascaris Mayo, a Waukesha resident, ended up losing
both of her arms and legs in 2011 after doctors initially
failed to detect that the severe abdominal pain, rapid
heartbeat and other symptoms she was suffering from
were the results of a Strep A infection. Not long after the
amputations, Mayo and her husband went to the Habush,
Habush and Rottier law firm to seek representation in a
lawsuit against Mayos doctors.
Mayos lawyer, Dan Rottier, said his firm has tried on
many occasions over the years to challenge the states
$750,000 cap on non-economic damages, which are those
related to pain and suffering. Until now, those attempts
have been short-circuited by out-of-court settlements
reached between plaintiffs and insurance companies.
When they resolved, that issue would go away,
Rottier said.
Mayos case, in contrast, has already delivered the
$750,000 cap a blow at the circuit-court level. When the
lawsuit was in Waukesha County Circuit Court in 2014, the
jury handed down a $25.34 million verdict, $16.5 million of
which consisted of non-economic damages. Even though
the award exceeded the cap, the judge decided to let the
entire amount stand.
Before appealing, Rottier said, the defendants went
ahead and paid everything that was not in excess of the
cap, leaving $15.75 million in dispute. That means the only
matter still at issue is the validity of the cap itself.
A decision from the Court of Appeals is expected in the
coming months.
The case could prove a turning point, some say, for
medical-malpractice lawyers and clients, giving them a way
Medical malpractice, continued on page 23
21
Cover story
22
Cover story
Medical malpractice, continued from page 21
around at least one of the states statutory
limits on medical-malpractice lawsuits. Those
restrictions, many plaintiffs attorneys argue,
can prevent clients from getting justice while
letting grossly negligent doctors continue to
practice.
On the other hand, doctors and defense lawyers, many of whom are watching the Mayo
case closely, are sticking up for the cap by
contending that doctors who are not hemmed
in by a fear of lawsuits are able to put their first
priority on tending to the needs of patients.
Limiting practice
Since 1975, doctors in Wisconsin have been
required to carry a type of insurance known
as primary liability to cover awards stemming
from medical-malpractice suits. For claims
that go beyond what that insurance will cover,
there is something known as the Injured
Patients and Families Compensation Fund,
which medical professionals are required to
pay premiums into.
Because of the cap on non-economic damages, insurance policies and the compensation
fund are often tapped for the larger sorts of
claims that can result when a doctor is found
liable for economic damages. Unlike noneconomic damages, Wisconsin sets no limit
on the amount of economic damages that can
be awarded by a jury.
The cap on non-economic damages, for its
part, was first established in 1995 and set at
$350,000. Subsequent years brought regular
cost of living adjustments, taking the top
limit up to $445,775 by 2005.
In that year the Wisconsin Supreme Court,
in the case of Ferdon vs. Wisconsin Patients
Compensation Fund, struck the cap down
after finding it to be in violation of the state
constitution.
The state Legislature did not wait long to
institute another cap, adopting the current one
in 2006. This time, the maximum payout was
set at $750,000.
Unlike under the old system, the new cap
was not set up to be adjusted once a year in
LEFT PHOTO | STAFF PHOTO BY KEVIN HARNACK
Dan Rottier, a lawyer at Habush Habush

and Rottier, has a pending case before the
District I Court of Appeals that directly
challenges the states $750,000 cap on
non-economic damages.
accordance with increases in the cost of

living, although there is a provision allowing
state lawmakers to make periodic changes.
Other new restrictions included limits on the
fees that attorneys can charge or recover
in medical-malpractice lawsuits and rules
governing who can seek compensation.
A cap on justice?
Wisconsins medical-malpractice laws,
according to various plaintiff attorneys, have
come over time to place more and more limits
on what sorts of cases can be taken on with
any hope of success.
The system that we have here makes it
easy for the insurance companies for doctors
to take cases to trial, said Michael End, a
lawyer who specializes in medical malpractice. They dont have much incentive to
settle... And the insurance company pretty
much wins.
Since the adoption of the current cap in
2006, the number of medical-malpractice
suits filed in Wisconsin has gone down
sharply. In 2005, 240 lawsuits were brought
forward alleging negligence or other misdeeds on the part of doctors and their fellow
practitioners. By 2014, the annual number of
filings had fallen to 84, according to statistics
from the Office of the Director of State
Courts annual reports.
Plaintiff lawyers say these numbers show
how selective theyve become about what
sorts of cases theyll take. End said his firm
End, Hierseman & Crane LLC in Milwaukee has three lawyers and gets at least ten
calls a day about possible lawsuits. He said the
chances are good that he and his associates
will decline all of them.
The overwhelming probability is that if
someone calls us, were not going to do it,
said End. We have to be more selective. When
we take a case its a sure thing that were going
to be spending hundreds of hours on that case
and thousands of dollars.
Unlike in other sorts of litigation, End said,
defendants in medical-malpractice lawsuits
have little incentive to resolve legal disputes
outside court. One reason for the hesitancy,
he said, is that doctors are required to report
any settlements theyve been involved in
to the states Department of Safety and
Professional Services, as well as to an even
larger tracking system known as the National
Practitioner Data Bank.
The resulting records have been known
These laws (noneconomic damage laws

established in 2006 and
capped at $750,000)
have the perverse effect
of preventing seriously
and legitimately injured
people from having their
day in court and holding
grossly negligent doctors
accountable.
Ann Jacobs
President of the Wisconsin
Association of Justice
State of Wisconsins trial
attorneys association
to haunt medical practitioners in future job
searches. As a result, many doctors would
rather fight things out in court than impede
their employment prospects.
We continually have tried to bring the
impact of these limitations to the attention of
the public and lawmakers, said Ann Jacobs,
president of the Wisconsin Association of
Justice, which is the states trial attorneys association. These laws have the perverse effect
of preventing seriously and legitimately injured
people from having their day in court and holding grossly negligent doctors accountable.
As a result, she said, grossly negligent
doctors are not being punished and can
continue practicing. Other recent law changes
have meanwhile put up even more obstacles to
medical-malpractice lawsuits.
Most notably, state legislators in 2013
passed a bill that altered medical practitioners
duty of informed consent. Previously, doctors
had to tell patients all the reasonable diagnoses
of a particular condition and then list various
treatments and their likely consequences.
Now, doctors no longer have to worry
about alternative diagnoses, and only have to
inform patients about the one they believe is
Medical malpractice, continued on page 24
23
Cover story
Medical malpractice, continued from page 23

most likely accurate. Had the new informedconsent standard been in place sooner, some
plaintiffs lawyers say, it might have even prevented the Mayo lawsuit from going forward,
since the case involves a doctors alleged
misdiagnosis of a Strep A infection.
Defenders of the current system,
meanwhile, argue that the cap on noneconomic damages both ensures doctors can
practice to the best of their ability, without
fear of being sued, and serves as a check on
frivolous lawsuits.
Guy DeBeau, a health care defense attorney,
said the states $750,000 cap should be viewed
as being part of a bigger picture. He noted Wisconsins lack of a cap on economic damages.
Ive never run across any of my friends in
the plaintiff bar who would really, legitimately
turn down a good case because theyre only
going to get three-quarters of a million dollars in this one area of damage, where theres
certainly a potential for a lot more than that in
another - if theres another area, he said.
Wisconsin is, in fact, perhaps the only
state that couples no cap on economic damages with a requirement that doctors carry
umbrella insurance coverage, said Mark
Grapentine, who lobbies for the Wisconsin
Medical Society on the behalf of medical
professionals.
24
And thats the way it should be, he said.

If someone is harmed because of negligence, they can get every last dollar that
they deserve from a fund that is stable and
working well without having to go into this
weird world of who can be more theatrical
in the courtroom and get a jury to feel badly
for someone
Because of that, (physicians) are going
to practice medicine according to what the
latest science says as opposed to what
the latest lawsuit environment is like, he
continued. I think thats what reflects in our
quality of care.
Grapentine said he and his members are
not in favor of going the route that various
other states have and imposing a limit on
economic damages.
Rather, he said, the priority is on maintaining a balance in Wisconsin.
Grapentine noted that Wisconsin came in
at number two in 2015 in the federal Agency
for Healthcare Research and Qualitys annual
health care rankings. The states place near
the top has been consistent over the years,
Grapentine said, suggesting that the current
system serves both doctors and patients well.
Taking on the cap
For the sake of protecting the good
results, said Grapentine, the medical society
is keeping a close eye on cases like the
Patricia Putney, a defense attorney at Bell Moore &

Richter, says she and her colleagues find themselves
litigating few medical-malpractice cases these days as
plaintiffs lawyers shy away from those sorts of cases.
Mayo lawsuit. So are those who think the

states medical-malpractice laws could stand
improving.
Yet, Jacobs said the significance of the
Mayo case can be overstated.
It is both more and less important than it
seems, she said.
On the one hand, the case sheds light on
how the cap stands in the way of justice for
those who have suffered the most horrific
injuries, she said. On the other, the Mayo lawsuit might ultimately have little influence on
future court proceedings, largely because the
trial judge was explicit in saying his decision
applied to a very specific set of circumstances, Jacobs said. The court found that only in
Mayos case did the $750,000 cap violate the
principle of due process.
Even so, Eric Farnsworth, a lawyer in
Madison now litigating a medical-malpractice
case in Green County, said the case remains
capable of planting a seed that could eventually sprout far-reaching roots.
If that concept gets firmly implanted in
Wisconsin jurisprudence, he said, it will allow review of the $750,000 cap and perhaps
then the playing field will get more level.
Cover story
The steadily disappearing

med-mal lawsuit
Lawyers who take on medical malpractice as a
specialty are a dying breed in Wisconsin.
played a part in plaintiff attorneys shying away from

bringing cases.
Although the causes of the decline are complex and

many in number, the chief one is simple enough. The
Thats when I saw cases pulled back, he said.

As happened to many other businesses, law firms
states $750,00 cap on non-economic damages and
found themselves with shortened credit lines during
similar restrictions make it impractical to take all but
the recession. As a result, plaintiff attorneys had to
the most egregious cases such as the Mayo case
start taking cases with smaller up-front costs.
featured in our cover story to court.
Defense attorneys make money largely in a different
Other than a very small number of us.
way and so were not as affected. Whereas plaintiff
said Mike End, a plaintiff attorney, everyone else
attorneys usually receive contingency fees if they are
has abandoned the whole practice of taking medical-
successful in getting a verdict or settlement, those
malpractice cases.
on the defendants side can often rely on insurance
Defense lawyers are noticing the trend as well.

Patricia Epstein Putney, a lawyer at Bell Moore &
Richter, said she takes on fewer medical-malpractice
cases than she did years ago, adding that most of her
colleagues can attest to seeing the same thing.
She said she enjoys medical-malpractice work
companies to cover many of the pre-trial costs.

The result, Putney said, is that defense attorneys are
less constrained by cash-flow considerations.
Cost, meanwhile, isnt the only source of anxiety for
plaintiff lawyers. Farnsworth noted that if a case is lost,
he and his colleagues are out not only what they spent
but nonetheless finds herself litigating more cases
up front on experts, but also the time devoted to the case,
involving car accidents and general liability.
which often comes to between 2 and three years.
Guy DuBeau, a health-care defense attorney at Axley
Many plaintiff attorneys try to mitigate the risks by
Brynelson LLP in Madison, likewise said he has seen a
diversifying their caseloads. But a strategy of that sort
general decrease in the number of medical-malpractice
can bring its own troubles.
cases that are being filed, as well as an increase in
For example, Eric Farnsworth, a plaintiffs lawyers at
the number of clients who seek to resolve a complaint
DeWitt Ross & Stevens, said that if he has ten cases going
before a lawsuit is ever filed.
at once and two of them are medical-malpractice cases,
Putney agreed. More and more of her clients, mostly

insurance companies and healthcare companies, are
those two will take up at least 80 percent of his time.

Quite frankly, as a business decision, he said.
choosing to deal with claims on their own rather than
I dont know how you can survive simply doing
turn to outside counsel, she said.
medical-negligence cases given the challenge.
She said she is also seeing more pro se litigants go

before the states medical-mediation panel, a board
Why do it full time, then?

I ask myself that everyday said End. Theres
that is always given a chance at resolving a dispute
clearly a need for people to be able to go into court
before a formal lawsuit can be filed in circuit court.
and try to recover fair compensation (A)nd if we
From our perspective, plaintiff attorneys are not
throw in the towel, as 99 percent of lawyers have, its
taking the cases they used to take, Putney said, and
going to be tough for those people to even think about
so we have less to defend.
achieving justice.
DuBeau said he suspects that the 2008 recession
- Erika Strebel
25
CASE DIGESTS|Wisconsin Law Journal
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:
Reasonableness - Error
WI Court of Appeals District II
Robert Weiss appeals a postdivorce judgment
ordering him to pay $90,255.95 in attorney fees
and costs as an overtrial sanction. He challenges
the sanctions propriety and reasonableness.
Decision. Affirmed.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2015AP86 Marla Joy Baker-Weiss v. Robert
George Weiss
Insurance - Indemnification
This is an insurance coverage dispute arising out
of the allegedly negligent installation of a water
pump in a municipal well. In the underlying complaint, the subrogated insurer of the municipal
utility sued the water well contractor, alleging
negligent work.
Decision. Affirmed.
Gundrum, J.
2014AP2484 Water Well Solutions Service Group
Inc. v. Consolidated Insurance Company
Motion to Suppress - Reasonable Suspicion
WI Court of Appeals - District IV
Jessica Johnson appeals a judgment of conviction and the order denying her motion to suppress
evidence arising out of a traffic stop. After a jury

trial, Johnson was found guilty of operating a
motor vehicle while intoxicated first offense and
operating a motor vehicle with a prohibited alcohol concentration. Johnson argues that the arresting officer did not have the requisite reasonable
suspicion to extend her detention for field sobriety testing and, therefore, the circuit court erred
in denying her motion to suppress the test results
and subsequent evidence of intoxication.
Decision. Affirmed.
Officials: KLOPPENBURG, P.J.
2014AP332 Columbia County v. Jessica N.
Johnson
Motion to Reopen
Samuel Buoscio appeals the order denying his
motion to reopen a default judgment that had
been entered against him. Buoscio filed a small
claims complaint against Parker Pen Company,
seeking the return of a pen that he alleges he
sent for a warranty repair. Buoscio attached to
the complaint a letter allegedly from Boufford
acknowledging receipt of the pen and stating
that the pen was being sent to a repair facility
in France.
Decision. Affirmed
Officials: KLOPPENBURG, P.J.
2015AP547 Samuel L. Buoscio v. Parker Pen
Company
Freedom of Information Act

7th Circuit Court of Appeals
Disclosure of a single document when numerous
documents requested in relation to H1-B visa was
inadequate to satisfy request.
Reversed and Remanded
Officials: BAUER and SYKES, Circuit Judges, and
REAGAN, Chief District Judge
No. 14-3733 David Rubman v. USCIS
Seizure of Assets State Sponsored
Terrorism 7th Circuit Court of Appeals
Plaintiffs awarded judgments in state-sponsored
terrorism cases against foreign governments and
who seek to attach property are not required
to comply with notice requirements of 1608(e)
before executing judgment.
Affirmed.
Officials: BAUER, FLAUM, and HAMILTON, Circuit
Judges.
No. 14-3344; 14-3327 Mary Wyatt v. Francis
Gates
Class Action Class Certification
Employees willfully denied overtime payment by
PNC bank certified as a class.
Affirmed
Officials: KANNE and ROVNER, Circuit Judges,
and SPRINGMANN, District Judge
No. 14-3018 Mariseli Gomez Bell v. PNC Bank
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26
Wisconsin Law Journal|CASE DIGESTS

Abuse of Discretion Fraud
District court properly dismissed appellant action
with prejudice for falsifying evidence.
Affirmed
Officials: CUDAHY, KANNE, and HAMILTON,
Circuit Judges
No. 15-1328 Neal Secrease, Jr. v. Western &
Southern Life Insurance
Motion to Dismiss Failure to Respond
District court dismissal of case without oral argument or hearing improper where appellant did not
have full and fair opportunity to respond
Officials: BAUER, FLAUM, and HAMILTON, Circuit
Judges
No. 14-3668 Dr. Robert L. Meinders, D.C. v.
United Healthcare, Inc.
Antitrust Unjust Enrichment
Respondent activity of purchasing cheese from
primary supplier and communication in course of
legitimate business relationship not synonymous
with violation of the Sherman Act.
Affirmed.
Officials: BAUER and SYKES, Circuit Judges, and
REAGAN, Chief District Judge
No. 14-3239 In Re: Dairy Farmers of America, Inc.
Cheese Antitrust Litigation
Prisoners Rights Prenatal Care
District court dismissal of appellant claim for failure to exhaust administrative remedies improper
where no administrative remedies existed.
Reversed & Remanded
Officials: POSNER, KANNE, and HAMILTON,
Circuit Judges
No. 14-3185 Wenona White v. Timothy Bukowski
Adverse Possession Permissive Use
WI Court of Appeals District III
On appeal, the Hattamers appear to argue that
the area of permissive use that Northern States
historically granted to owners of the Hattamers
property was, in fact, a small distance south of
the location of parties property boundary, which
the circuit court concluded had not changed since
1950. We conclude the circuit courts finding that
the parties property line had not changed since
1950 was not clearly erroneous.
Decision. Affirmed.
Officials: Stark, P.J., Hruz, J., and Thomas Cane,
Reserve Judge
2014AP1854 Randall A Hattamer v. Northern
States Power Company
Trust & Estates Power of Attorney
WI Court of Appeals District IV
This case involves unequal transfers of money by
the late Mary Jane Foseid to her children, focusing on the fact that Mary Jane transferred what
could be considered a double share of settlement
money that Mary Jane had received to one of her
children, Kathryn Walters, but transferred only a
nominal share of the settlement money to another
of her children, Kari Foseid, who is disabled.
Decision. Affirmed. Per Curiam.
Officials: Kloppenburg, P.J., Higginbotham, and
Blanchard, JJ.
2014AP2878 Kristin Robbins DDS v. Thomas
Foseid
Breach of Duty of Loyalty
Thomas Peterson, a former sales representative
for Matenaer Corporation, appeals a judgment
entered after a bench trial in which the circuit
court awarded Matenaer approximately $71,500
in damages on Matenaers claims against
Peterson. The circuit court concluded that
Peterson breached an implied agreement with
Matenaer to repay advances made to Peterson.
Officials: Kloppenburg, P.J., Lundsten and
Blanchard, JJ
2014AP2941 Matenaer Corporation v. Thomas
Peterson
Admission of Evidence Harmless Error
Circuit court error of admitting letter implicating appellant of murder weeks before murder
occurred prejudiced appellant.
Affirmed
Officials: WILLIAMS, TINDER, and HAMILTON,
Circuit Judges
14-1380 Mark D. Jensen v. Marc Clements
Excessive Force
Officer aggressive actions applied on appellant
held as excessive in light of appellants conduct.
Officials: RIPPLE and HAMILTON, Circuit Judges,
& STADTMUELLER, District Judge
12-3639 Michael B. Kinglsey v. Stan Hendrickson
Improper Dismissal - Untimely Filing

Circuit court dismissal of prisoners suit rooted
in improper conduct by prison medical staff as
untimely was inappropriate given delays beyond
prisoners control.
Officials: POSNER, ROVNER, and HAMILTON,
Circuit Judges
No.14-3426 William Nally v. Parthasarathi Ghosh
Real Estate - Easement
WI Court of Appeals - District III
Ronald Berg appeals a judgment concerning a
recorded general easement over property owned
by Thomas Ziel and Shawn Newhouse. The judgment extinguished Bergs existing access route,
but granted Berg access on a newly created road
along the edge of Ziels property.
Decision
Reversed and Remanded - Recommended for
Publication
Reserve Judge
2014AP2802 Ronal M. Berg v. Thomas R. Ziel
Abuse of Discretion - Failure to Respond
Green Box, N.A. Green Bay, LLC, and its founder
and chairman, Ronald Van Den Heuvel (collectively Green Box) appeal a judgment awarding Marco Araujo $813,735.34, consisting of
$600,000 for damages relating to a breach of
contract plus prejudgment interest and costs.
Decision
Affirmed in part. Reversed and Remanded in part.
Reserve Judge.
2014AP2846-FT Marco Araujo, M.D. v. Ronald H.
Van Den Huevel
Statute of Repose
Walter H. Wise and his son, Walter R. J. Wise,
appeal a summary judgment dismissing their
property damage action against the Village of
Kimberly and its insurer, Cities & Villages Mutual
Insurance Company. The Wises contend the
circuit court erred by concluding their action is
procedurally barred by the statute of repose.
Decision
Affirmed. Per Curiam.
Officials: P.J., Hruz, J., and Thomas Cane, Reserve
Judge.
2015AP197 Walter H. Wise v. Village of Kimberly
27

Notice Requirements
WI Court of Appeals - District II
In 2013, the Village of Harrison was born from
land within the Town of Harrison. Shortly thereafter, the Town and Village of Harrison entered
into an intergovernmental cooperation agreement
that transferred additional land to the Village and
provided for the sharing of services between the
two communities. The Cities of Kaukauna and
Menasha, the Village of Sherwood, and individual
property owners (collectively, the Challengers)
argue that the intergovernmental cooperation
agreement is void.
Decision. Affirmed - Recommended for Publication
Gundrum, J.
2014AP2828 City of Kaukauna v. VIllage of
Harrison
Lack of Jurisdiction WI Court of Appeals - District II
Conor B. Fisk was cited in municipal court with
operating a motor vehicle while under the influence of intoxicants (OWI) and with a prohibited
alcohol concentration (PAC) in violation of Village
of Thiensville ordinances adopting WIS. STAT.
346.63(1)(a) and (b).

Decision. Reverse and Remanded
Officials: REILLY, P.J
2015AP576-FT Village of Thiensville v. Conor B.
Fisk
sufficient to pass Daubert test.

Affirmed
Officials: KANNE and SYKES, Circuit Judges, and
Ellis, District Judge
No.14-3448 C.W. & E.W. v. Textron, Inc.
Ineffective Assistance of Counsel

Failure of counsel to presentence report characterization of appellant crimes and failure to
timely request for certificate of appealability
necessitates a reversal. We agree with Ramirez
that trial counsels performance was deficient.
An attorneys failure to object to an error in the
courts guidelines calculation that results in a longer sentence for the defendant can demonstrate
constitutionally ineffective performance.
Vacated and remanded.
Officials: WOOD, Chief Judge, and BAUER and
MANION, Circuit Judges
No.13-3889 Israel Ramirez v. United States of
America
Tax Income Classification

Monies paid to appellants in government settlement stemming from qui tam claim properly classified as other income rather than capital gain.
Affirmed
Officials: RIPPLE, WILLIAMS, and SYKES, Circuit
Judges
No.14-2190 Craig Patrick v. CIR
Writ of Habeas Corpus 7th Circuit Court of Appeals
Appellants writ of habeas corpus petition filed
over a decade after his conviction became final
was untimely and he did not meet the actual
innocence exception for extending the time limit;
as such, his petition was properly dismissed.
Affirmed
Officials: BAUER and HAMILTON, Circuit Judges,
and ELLIS, District Judge.
Toxic Tort - Exclusion of Expert Testimony

Appellant experts reliance on attenuated data not
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Labor Relations
Collective Bargaining
Employment Litigation
Employee Benefits
Employment Counseling
Immigration
Regulatory Compliance
Work Injury Defense
Restrictive Covenants

No.13-3141 Myron Gladney v. William Pollard
Administrative Enforcement Proceeding
Appellant attempt to circumvent an administrative and judicial review by filing suit in federal
court to question the authority of the SEC to conduct a de novo review fails.
At any rate, this unsettled issue does not affect the
outcome in this case. We think the most critical.
Affirmed
Officials: BAUER, ROVNER, and HAMILTON,
Circuit Judges
No. 15-1511 Laurie A. Bebo v. Securities and
Exchange Commission
Statute of Limitations - Defamation
WI Court of Appeals - District I
John Beckett appeals a judgment of the circuit
court, following a bench trial. The circuit court
found that Beckett defamed Stephen Laughland
by creating a Facebook page in Laughlands
name and posting numerous items that defamed
Laughland and disparaged Laughlands character.
Decision.
Affirmed - Recommended for Publication
Officials: Curley, P.J., Kessler and Brennan, JJ

2014AP2393 Stephen Laughland v. John Beckett
SUMMARY OF JUDGMENT
Summary Judgment Court Error
WI Court of Appeals District I
Perrault Jean-Paul, pro se, appeals from a trial
court order that granted summary judgment to
the City of Milwaukee on both its claims and
Perraults counterclaims. Perrault claims that
the circuit court erred in refusing to adjourn or
stay proceedings when he so requested and that
it erred in its application of the exhaustion of
remedies doctrine to grant summary judgment to
the City.
Decision. Affimed. Per Curiam.
Officials: Curley, P.J., Brennan and Bradley, JJ.
2014AP1089 City of Milwaukee v. Perrault Jean-Paul
Summary Judgment WI Court of Appeals - District II
This case arises from a dispute over the planned
removal of a driveway connecting a highway and
commercial property in the city of Waukesha. The
Wisconsin Department of Transportation (DOT)
appeals a grant of summary judgment in favor

of Chan Lee and C. Lee Development, LLC (collectively, Lee). The DOT contends that summary
judgment should have been granted in its favor.
Decision. Affirmed. Per Curiam
Officials: Neubauer, C.J., Reilly, P.J. and Brennan, J.
2014AP2304 Chan Lee v. DOT
CONSITUTIONAL LAW
First Amendment Equal Protection Clause
Appellant did not obtain position due to failure to
submit proper paperwork, not discrimination.
Affirmed
Officials: WOOD, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges
14-3365 Theresa Bisluk v. Brian Hamer
Constitutionality
State statute governing system for election
judges held unconstitutional.
Affirmed
Officials: KANNE and ROVNER, Circuit Judges,
and SPRINGMANN, District Judge
29

14-3300 Common Cause Indiana v. Individual
Members of Indiana Election Committee
LABOR LAW
Collective Bargaining Agreement
Short term agreement between employer and
union altering duty of employer to contribute to
pension fund sufficient to end employer duty and
allow for new arrangement.
Officials: WOOD, Chief Judge, and FLAUM and
EASTERBROOK, Circuit Judges
No. 14-3737; 14-3726 Michels Corporation v.
Central States Southeast and Southwest Areas
Pension Fund
Petition for Review Unfair Labor Practices
Holding of meeting where employer attempted to
prevent employees from unionizing held to violate
unfair labor practices act.
Decision Enforced
Officials: WOOD, Chief Judge, and ROVNER and
WILLIAMS, Circuit Judges
No. 14-2991; 14-3361 AutoNation, Inc. v. NLRB
EVICTION
Eviction
Carol Coltman, pro se, appeals a summary judgment in favor of her daughter, Zoe Wesolowski,
on Wesolowskis eviction claim against Coltman
and on Coltmans counterclaims. Coltman also
appeals an order dismissing her claims against
various third-party defendants.
Officials: Stark, P.J., Hruz and Seidl, JJ
2014AP2671 Zoe Ann Wesolowski v Carol Ann
Coltman
Eviction - Motion to Reopen
Ryan P. and Bobbie S. Walker, husband and wife,
appeal the circuit courts denial of their motion to
reopen and vacate a judgment of eviction entered
against them following a court trial. The Walkers assert
that the circuit court erred in denying, without a hearing, their motion to reopen and vacate the judgment.
Decision. Affirmed
Officials: GUNDRUM, J.
2015AP509 Wright Weber Management, LLC v.
Ryan P. Walker
30
BREACH OF CONTRACT
Breach of Contract
Movie company allegations of breach of contract
asking for $5.5 million in damages could not be
sustained by a reasonable trier of fact.
Take this case, for example. Who can say why
a critically praised movie did not make money?
Merry Gentleman claims as damages all $5.5
million it spent to produce the movie. If Keaton
had somehow prevented completion of the movie,
Merry Gentleman might well have been entitled
to all expenditures made in preparation for his
performance (subject, of course, to the losing
contract limitation in 349).
Affirmed.
Officials: BAUER, ROVNER, and HAMILTON,
Circuit Judges
No.15-1195 Merry Gentleman, LLC v. George and
Leona Productions and Michael Keaton
Failure to State a Claim - Breach of Contract
Appellant breaches clause of settlement agreement, eradicating any obligation of defendantrespondent to pay him.
Affirmed
Officials: KANNE and SYKES, Circuit Judges, and
ELLIS, District Judge
No.14-3563 Steven Olson v. Bemis Company, Inc
Breach of Contract - Nonconforming goods
Buyer attempts to circumvent the economic loss
doctrine by bringing suit for negligent misrepresentation.
Reversed in part. Affirmed in part
Officials: FLAUM, MANION, and HAMILTON,
Circuit Judges
No.14-3315; 14-3306 JMB Manufacturing, Inc. v.
Harrison Manufacturing, LLC
Breach of Contract Summary Judgment
Ambiguous language of arbitrage agreement as
related to termination made summary judgment
inappropriate. District court abused discretion in
not allowing Appellant to amend complaint.
Rovner concurs and dissents
Officials: MANION, ROVNER, and HAMILTON,
Circuit Judges.
No. 14-1437 Life Plans Incorporated v. Security
Life of Denver Insurance Company
Breach of Contract
Dismissal of appellant breach of contract claim on
grounds that he was barred from pursuing legal
action due to a material default improper.
Affirmed as to breach of fiduciary duty claim
Reversed and remanded as to dismissal of breach
of contract claim
Officials: EASTERBROOK, WILLIAMS, and SYKES,
Circuit Judges
No. 14-1949 Daniel Avila v. CitiMortgage, Inc.
BANKRUPTCY AND FORECLOSURE

Bankruptcy
Appellants increased persona expenditures in
the wake of bankruptcy considered bad fatih and
warranted dismissal of bankruptcy petition.
Affirmed
Officials: POSNER, KANNE, and ROVNER, Circuit
Judges
No. 15-1416 Michael D. Schwartz v. Barclays
Capital Inc.
Foreclosure Reformation of Mortgage
Gene and Gloria Raatz appeal a summary judgment of foreclosure entered after the circuit court
granted OneWest Bank, FSBs action for reformation of the mortgage to make it apply to both of the
lots owned by the Raatzes. Although the Raatzes
raise several confusing arguments challenging
the courts decisions and the Bank offers several
alternative grounds for affirming the decisions, we
conclude resolution of two issues is dispositive.
Reserve Judge
2014AP2687 OneWest Bank, FSB v. Gene O. Raatz
Receivership Stay of Proceedings
Attorneys attempt to circumvent receiver by
obtaining judgment and submitting a claim after
court imposed a stay on all legal proceedings
warrants sanctions.
Affirmed & Sanctions Ordered
Officials: FLAUM, KANNE, and SYKES, Circuit
Judges
No. 13-3837 Kevin Duff v. Central Sleep
Diagnostics
DUE PROCESS
Recusal Motion Due Process

Carol Coltman, pro se, appeals an order dismissing her claims against attorney Stephen Kase;
Brooks, Kase & Erikson, S.C.; Zoe Wesolowski;
attorney Erik Monson; Coyne, Schultz, Becker &
Bauer, S.C.; and Antoinette Christenson. Coltman
argues: (1) the circuit court erred by concluding
her complaint failed to state a claim on which
relief could be granted; (2) dismissal of her claims
violated her right to due process; and (3) the circuit court erred by denying her motion for recusal.
Officials: Stark, P.J., Hruz and Seidl, JJ.
2014AP2887 Carol Ann Coltman v. Stephen A
Kase
Due Process - Absolute Immunity
Defendant-respondents not entitled to absolute
immunity for misconduct during investigation.
Officials: BAUER, MANION, and SYKES, Circuit
Judges
No.13-3343; 13-3346; 13-3347 Robert Lee
Stinson v. James Gauger, Lowell T. Johnson, and
Raymond Rawson
Reinstatement - Proper Remedy
Jesus Jesse Alba sought to be reinstated
as City of Waukesha Fire Department (the
Department) fire chief and provided back pay. The
circuit court denied his statutory appeal under
WIS. STAT. 62.13(5)(i) (2013- 14), but on certiorari review found a fundamental due process
violation and remanded the case to the City of
Waukesha Board of Police and Fire Commission
(the PFC) for rehearing. Alba appeals the circuit
courts remedy of a rehearing.
Decision. Affirmed.
Officials: Neubauer, C.J., Gundrum and Stark, JJ.
2014AP2448 Jesus Alba v. City of Waukesha
Board of Police and Fire Commission
FAMILY LAW
Divorce - Spousal Maintenance
Joseph Ferrara appeals an order that denied his
motion to terminate or modify maintenance paid
to his ex-wife Eva Ferrara Vase. He argues that
the circuit court erroneously ruled that he failed
to show any substantial change in circumstances
from the time of divorce to the time of his motion
that would warrant either a termination of maintenance or modification of maintenance.
Decision
Affirmed. Per Curiam
Officials: Kloppenburg, P.J., Sherman and
Blanchard, JJ.
2014AP2712 Eva M. Ferrara Vase v. Joseph S.
Ferrara, Jr
Termination of Parental Rights Neglect
M.H. appeals from a circuit court order terminating her parental rights to S.H. She argues that the
circuit court erroneously exercised its discretion
when it concluded that M.H.s failure to appear
at the July 9, 2014 dispositional hearing was not
excusable neglect.
Decision. Affirmed.
Officials: BRENNAN, J.
2015AP711 State of Wisconsin v. M.H.
Ch. 51 Commitment
C.Y.K. appeals from an order for involuntary
medication and treatment. She argues that there
was insufficient evidence to prove by clear and
convincing evidence that she is substantially incapable of applying an understanding of the advantages and disadvantages of and alternatives to
treatment to her mental illness in order to make
an informed choice whether to accept or refuse
medication or treatment.
Decision. Affirmed.
Officials: NEAUBAUER, C.J.
2015AP1080-FT Ouzakee County v. C.Y.K.
Family Divorce
Gavin M. Walwork appeals the property-division
portion of the judgment granting him and Erika
M. Weber, f/k/a Erika M. Walwork, a divorce.
The issues are whether the trial court improperly
allocated an income tax liability, impermissibly
double counted an asset, and failed to make an
order regarding the 2014 income taxes.
Gundrum, J.
2014AP2243 Erika M. Weber v. Gaving M.
Walwork
Child Custody & Physical Placement
This is an ongoing child custody and physical
placement dispute between the childs mother,
Stephanie Przytarski, and the childs adjudicated
father, Ted B. Vallejos.

Higginbotham, JJ
2014AP2942 Stephani M. Przytarski v. Ted B.
Vallejos
Grandparents Rights - Visitation
Gary and Sandra Kramschuster appeal an order
granting them supervised visits in New Jersey
with their maternal grandchild. The grandparents
ask this court to reverse the circuit courts order
and to grant them broader visitation rights as
requested in their motion for grandparent visitation. Decision
Higginbotham, JJ.
2014AP2993 Gary A. Kramschuster v. Stephanie
M. Przytarski
CRIMINAL CASES:
Sexual Abuse/Statutory Rape
Appellant argues for court to part ways with
established precedent as it relates to the definitions of sexual abuse of a minor and statutory
rape.
Affirmed
No.14-1994 United States of America v. Alejandro
Zuniga-Galeana
Revocation - Irrevocable Commitment
Judge prepared sentencing decision in preparation of revocation hearing not considered an
irrevocable commitment.
Affirmed
Officials: POSNER, SYKES, and HAMILTON,
Circuit Judges
No.15-1425 United States of America v. Michael
Dill
OWI Third Abuse of Discretion
Sharod Weaver appeals a judgment convicting
him of operating a motor vehicle while under the
influence of an intoxicant (OWI), third offense,
and an order denying his motion for postconviction relief. Weaver argues the circuit court
31

erroneously exercised its discretion when it
disregarded the OWI sentencing guidelines on the
mistaken assumption that they were not based on
the four primary sentencing factors. We affirm.
Decision. Affirmed.
Officials: STARK, J.
2015AP170-CR State of Wisconsin v. Sharod D.
Weaver
Miranda Warnings Motion to Suppress
Eriberto Valadez appeals from a judgment entered
after a jury found him guilty of possession with
intent to deliver cocaine as a party to a crime,
contrary to WIS. STAT. 961.41(1m)(cm)2.,
939.05 (2013-14).
Decision. Affirmed.
Officials: Curley, P.J., Brennan and Bradley, JJ.
2014AP2855-CR State of Wisconsin v. Eriberto
Valdez
Ineffective Assistance of Counsel
John Phillips appeals an order adjudging him to
be a sexually violent person under WIS. STAT. ch.
980 and an order denying his motion for a new
trial based on ineffective assistance of counsel..
Reserve Judge
2014AP2083 State of Wisconsin v. John L. Phillips
Miranda/Good Child Hearing
Perk Eugene Thomas, pro se, appeals from an
order of the circuit court that denied his motion
for a Miranda/Goodchild1 hearing.
Decision. Affirmed.
Officials: Curley, P.J., Kessler and Bradley, JJ.
2014AP2898-CR State of Wisconsin v. Perk
Eugene Thomas
SEARCH & SEIZURE

Unreasonable Search & Seizure
WI Court of Appeals District IV
Emiliano Calzadas was charged with operating
without a license.2 Calzadas moved the circuit
court to suppress all evidence obtained as a
consequence of a traffic stop and subsequent
seizure. The court denied the motion. Calzadas
pleaded no contest and a judgment of conviction
was entered.
Decision. Affirmed.
Officials: HIGGINBOTHAM, J.
32
2015AP162-CR State of Wisconsin v. Emiliano

Calzadas
Destruction of Evidence
David R. Yates challenges multiple warrantless
searches of his home, the destruction of potentially exculpatory evidence, various evidentiary
rulings at trial, and the effectiveness of his trial
counsel.
Officials: Lundsten, Higginbotham and Sherman, JJ
2013AP1936-CR State of Wisconsin v. David R. Yates
COURT ERROR
Harmless Court Error
Appellant fails to show that conceded court error
by government prejudiced his case.
Affirmed
No.14-3097 United States of America v.
Christopher Seifer
Tax Evasion Court Error
Competency evaluation not necessary for appellant with no history of mental illnessattempts
to show existence of illness were all utilized in
attempt to pursue sovereign citizen legal defense.
Court did no err in refusing to include willfulness
jury instruction.
Affirmed.
Judges
No. 14-1206; 13-3844 United States of America v.
Sharon Anzaldi and Steven Latin
Court Error - Prosecutor Strike of Juror
Courtney J. James appeals from a judgment of
conviction entered after a jury found him guilty of
one count of first-degree reckless homicide and
one count of first-degree recklessly endangering
safety, both with use of a dangerous weapon and
as a party to the crime.
Decision. Affirmed.
Officials: Curley, P.J., Kessler and Brennan, JJ.
2014AP1120-CR State of Wisconsin v. Courtney
J. James
Chemical Intoxication Test - Court Error
David Francis Walloch appeals from the circuit
courts order finding he unlawfully refused to submit to a chemical test for intoxication.
Decision. Affirmed.
Officials: GUNDRUM, J.
2015AP574 State of Wisconsin v. David Francis
Walloch
MOTION TO SUPPRESS
Motion to Suppress
Among multiple other issues, officers conduct
during car stop was more akin to a warrantless
arrest, therefore drugs seized as a result of the
stop that ultimately led to conviction must be
reversed.
Affirmed in part, reversed in part, vacated in part
Officials: FLAUM, MANION, and HAMILTON,
Circuit Judges.
No.13-3715; 13-3727 United States of America v.
Brian Wilbourn and Adam Sanders
Search & Seizure Motion to Suppress
Ryan Tentoni asserts a privacy interest in text
messages sent by him and discovered through
a warrantless search of Wayne Wilsons phone.
Tentoni seeks suppression of the text messages
and other subsequently obtained phone records
as fruit of the governments illegal search of his
text messages stored in Wilsons phone.
Decision. Affirmed. Recommended for Publication.
Gundrum, J.
2014AP2387-CR State of Wisconsin v. Ryan H. Tentoni
Traffic Stop Motion to Suppress
Manuel Talavera appeals an order denying his
motion to suppress evidence. He argues that
when relying on a violation of WIS. STAT.
346.34(1)(b) to justify a warrantless traffic stop,
the State must present evidence that a defendants failure to signal prior to turning his vehicle
actually affected other traffic.
Decision. Affirmed.
Officials: REILLY, P.J.
2015AP701-CR State of Wisconsin v. Manuel
Talavera
Motion to Suppress Search Warrant
Even where probable cause lacking, good-faith
exception allows admission of evidence obtained
from search warrant.

Officials: MANION, WILLIAMS, and HAMILTON,
Circuit Judges.
14-3262 United States of America v. Sidney
Thompson
SUFFICIENCY OF EVIDENCE
Insufficiency of Evidence
Michael Delaney appeals judgments of conviction for second-degree sexual assault of a child
under the age of sixteen, contrary to WIS. STAT.
948.02(2) (2013-14) as a repeater, and five counts of
child enticement, contrary to WIS. STAT. 948.07(1).
Officials: Higginbotham, Sherman and Blanchard, JJ.
2014AP1810-CR State of Wisconsin v. Michael L.
Delaney
Sufficiency of Evidence Jury Instruction
Patently false tax returns sufficient to demonstrate knowledge of false checks tendered to IRS.
Affirmed
Officials: BAUER, EASTERBROOK, and RIPPLE,
Circuit Judges
No.14-3515 United States of America v. Eugene Clarke
Abuse of Discretion
Anthony Lee appeals judgments convicting him
after a jury trial of multiple crimes, including
burglary, battery, substantial battery, and seconddegree recklessly endangering safety, all as party
to a crime and by use of a dangerous weapon.
Officials: Higginbotham, Sherman and Blanchard, JJ.
2014AP2103-CR, State of Wisconsin v. Anthony M. Lee
Prosecutorial Misconduct
Evidence of quid pro quo not necessary to
establish evidence of bribery. Prosecutor misstatement that was promptly objected to, and
cured by presiding judge did not prejudice appellant.
Affirmed.
Officials: POSNER, ROVNER, and WILLIAMS,
Circuit Judges
No. 14-1701 United States of America v. Eugene
Mullins
Sufficiency of Evidence
Appellant repeated solicitation to arrange for a
contract killing sufficient to uphold conviction.
Affirmed.
Judges
No.14-2799 United States of America v. Daniel
Dvorkin
PLEAS & SENTENCING

Unreasonable Sentence
Appellant failure to fully carry through with
conspiracy or solicitation to commit murder does
not alter applicability of 2X1.1(c)(1) of the US
Sentencing Commission Guidelines Manual.
Affirmed
Officials: BAUER, KANNE, and WILLIAMS, Circuit
Judges
No. 14-3460 United States of America v. Zenon
Grzegorczyk
Mishlove and Stuckert

Attorneys at Law
Wisconsin OWi defense

the law and Practice,
by Andrew Mishlove and
James Nesci
lawyers and Judges
Publishing
Board Certified Specialist

in Drunk Driving Defense
By the National College for
DUI Defense ABA Accredited.
Wisconsin-OWI.com andrew@MishloveandStuckert.com
Sentencing - Good Time - Revocation

Christopher Baade earned ninety days of good
time while serving one year in the county jail
as a condition of probation on a stayed prison
sentence. Baades probation was revoked, and
he began his prison sentence of two years of
initial confinement to be followed by two years of
extended supervision.
Decision. Reversed - Recommended for
Publication
Gundrum, J.
2014AP2655 Christopher W. Baad v. Brian Hayes
Pleas & Sentencing - Sentencing Error
Appeal of sentence given by two separate judges
for crimes that were interrelated both in time and
fact not held as frivolous.
Reversed and Remanded.
Officials: POSNER, EASTERBROOK, and SYKES,
Circuit Judges
No.14-2154; 13-3711 United States of America v.
Robert Maday
Conditions of Supervision
District court failure to make finding in support of
discretionary conditions imposed on appellants is
not a harmless error.
Remanded for resentencing
Officials: BAUER, EASTERBROOK, and SYKES,
Circuit Judges
No. 14-1369 United States of America v. Robert
D. Falor
No. 14-1603 United States of America v. Michael
Richard Jines
(877) DUI-DREW
Phone 24/7: 414-332-3499
Fax: 414-332-4578
The Eastlake
Towers
Corporate Center
4425 North Port
Washington Road,
Suite 110
Glendale, WI 53212
Andrew Mishlove
Attorney at Law
33
Verdicts & Settlements
VERDICTS&
SETTLEMENTS
For a complete database of all verdicts and settlements

and to submit your own online visit
wislawjournal.com
For help submitting or to get an

email copy of the form, contact
Jenny Byington at 414-225-1803 or
jenny.byington@wislawjournal.com.
Parties settle lawsuit over injuries from collision

of motorcycle, delivery truck
Jefferson County Circuit Court
Judge William Hue approved a
$5.5 million settlement June 13,
2014, in a motor vehicle accident
lawsuit. The settlement included
$1,833,333.34 for attorney
fees and costs, and a cushion
or credit against any additional
claim by the plaintiff for workers
compensation benefits.
Case history (according to
court documents):
On Aug. 24, 2012, at approximately 4:24 p.m., a collision
occurred at the intersection of
Highway 18 and County Road D
in Jefferson County, involving a
2005 GMC delivery truck driven
by the defendant, Brian Kozak, in
the course of his employment at
Schwans Home Service Inc, the
trucks owner, and a 2004 Honda

motorcycle owned and operated
by the plaintiff Evan Bashirian.
As a result of the accident,
Bashirian suffered permanent
injuries to his head, neck,
and spinal cord, and suffered
chronic pain.
Another defendant, Hartford Fire Insurance Co., was
the insurer for Kozak and the
Schwans vehicle.
Bashirian argued that Kozak
was negligent and Schwans was
directly liable for all of Bashirians injuries and damages,
according to the doctrine of
respondeat superior.
Cristina Janda
SETTLEMENT
$5,500,000
Case name: Evan Bashirian
v. Hartford Fire Insurance Co.,
Schwans Home Service Inc., and
Brian Kozak
Case type: motor vehicles
Court: Jefferson County Circuit
Court
Case number:12-CV-873
Date of incident: Aug. 24, 2012
Disposition date: June 13, 2014
Injuries: brain, head, neck, spinal
cord, and other injuries, including
chronic pain
Special damages: pain and
suffering, interference with normal
activities and ability to earn
income, medical expenses, and
property damage to motorcycle

and personal property,
Plaintiffs attorneys and firm:
James Jansen of Habush Habush
& Rottier SC, Madison
Defendants attorneys and
firm: Patrick Lubenow of
SmithAmundsen LLC, Milwaukee
Defendants experts: James
Whelan, P.E., and Ashley Liston
Dunn, Ph.D., specializing in vehicle
accident reconstruction, of SEA
in Elk Grove, Ill., and certified
nurse and life care planner Jan
Klosterman, RN, CNLCP, of
Klosterman & Associates, St.
Louis, Miss.

Search online at verdicts.wislawjournal.com
New reports every week.
34
Wife settles lawsuit over husbands death involving obscured stop sign
Judge Gregory Gill Jr. of the Outagamie County Circuit Court signed
an order June 6, 2014 approving disbursement under Wis. Stat.
102.29 of a $610,000 settlement reached in a personal-injury lawsuit
involving a fatal motor-vehicle accident.
The settlement included attorney fees and costs of $208,276.77.
Previously, the defendant, Wisconsin Bell Inc., had offered to settle
for $500,000 in an offer of judgment dated Feb. 21, 2014. The plaintiff
rejected the offer and countered in an offer of settlement dated June
23, 2014. The offer was for $650,000 plus statutory costs.
Case history (according to court documents):
On June 30, 2010, Louis Schmidt was working Vanderloop Equipment Inc. while driving east on Rock Road in Ellington. Rock Road
intersected with Market Road. At that intersection, traffic on Market
Road had the right of way while motorists on Rock Road were required to stop at a stop sign.
An AT&T utility van owned by the Wisconsin Bell Inc. and operated
by an AT&T employee, Joel Grambsch, was parked to the west of the
intersection, on the south shoulder of eastbound Rock Road. The utility
van was in front of the stop sign controlling the traffic on Rock Road.
As a result, Schmidt could not see the stop sign and entered the
intersection at the same time Adam Van Zeeland was traveling south
on Market Road. Van Zeelands vehicle collided with Schmidts vehicle,
causing Schmidts vehicle to rollover. Schmidt died.
Schmidts spouse, Jody Schmidt, filed a lawsuit against Wisconsin Bell
SETTLEMENT
$610,000
Case
name: Jody Schmidt,

individually, as the spouse of, and as
special administrator to the estate of
Louis Schmidt v. Wisconsin Bell Inc.
doing business as AT&T Wisconsin,
Adam Van Zeeland, and West Bend
Insurance Co.
Court: Outagamie County
Circuit Court
Case number: 12CV616
Date of incident: June 30, 2010
First offer: $500,000
Last demand: $650,000
Injuries:
Death
Special damages: emotional
distress, pain and suffering, medical

expenses, funeral and burial
expenses, wage loss, spouses related
loss of society and companionship
claim, statutory costs, attorney fees,
and disbursements
Plaintiffs attorneys and firm:
John Claypool of Herrling, Clark
Law Firm Ltd., in Appleton
Defendants attorneys and firm:
Peter Mullaney of von Briesen &
Roper SC, Milwaukee (representing
Wisconsin Bell Inc.)
Inc., Van Zeeland and West Bend Mutual Insurance Co. She argued that
the accident was caused by the defendants negligence. She also brought
a claim against Wisconsin Bell Inc. for a public nuisance violation.
- Cristina Janda
Mark lifes moments at Bacchus.
925 East Wells Street, Milwaukee | (414) 765-1166 | bacchusmke.com
35
Jury sides with stepmother in dispute over resort

Following a jury trial in a breach of contract
lawsuit at the Barron County Circuit Court, jurors returned a verdict in favor of the plaintiff,
awarding her $172,000 in damages.
Case history (according to court
documents):
Plaintiff Kathryn Trawin married Robert
Trawin in the 1990s, sold her home, and used
the proceeds from the sale of her home to
pay off Robert Trawins land contract due on
a resort and to make improvements to the
resort. Kathryn stated that she did this based
on promises that she would be reimbursed
and be a part owner of the resort.
The plaintiffs stepchildren, the defendants
Cindy Henrickson, Michael Trawin, and Kathy
Trawin, executed a written agreement in January 1994 to transfer 40 percent of the resort
property to the plaintiff after Roberts death
and confirmation of no claims against his
estate, and other conditions.
The plaintiff said that she lived at the resort
for more than 23 years. During that time she
ran the resort business with Robert and the
stepchildren for 13 years until October 2012,
when the stepchildren forced her to stop after

Robert died.
The plaintiff said she worked full time to
operate the resort, while the stepchildren did
not live on the property, work on it, or make or
pay for repairs or maintenance.
Since Roberts death, the plaintiff asserted,
she had repeatedly asked the stepchildren to
honor the terms of the agreement and change
the deed to reflect her 40 percent ownership
of the resort, but the stepchildren refused to
comply. Eventually, the stepchildren filed an
eviction action against her in Barron County
Circuit Court, case number 13-SC-548.
The plaintiff filed the lawsuit against the
stepchildren, asserting claims for breach of
agreement to transfer real estate, reformation
of agreement to transfer real estate, reimbursement of amounts contributed from sale
of the plaintiffs residence, breach of implied
covenant of good faith and fair dealing, equitable estoppel and relief, partition and sale,
and misrepresentation.
- Cristina Janda
Jury sides with man who hit

trailer with no brake lights
Following a trial, an Outagamie County
Circuit Court jury returned a verdict awarding $133,358.39 in damages to a plaintiff in a
vehicle-accident lawsuit.
The jury determined that both the plaintiff
motorcyclist was negligent and an unknown
driver towing a trailer without functioning
break lights was negligent. Fault was attributed
35 percent to the plaintiff and 65 percent to the
unknown driver.
The jury awarded the plaintiff $65,304.47
for past hospital and medical expenses,
$18,053.92 for past wage loss, and $45,000
for past and future pain and suffering. The jury
also awarded $5,000 for the related loss of
society and companionship claim asserted by
the plaintiffs spouse.
Judge Gregory Gill Jr. signed the parties stipulation and order for dismissal on June 10, 2014.
documents):
36
Plaintiff Lester Haack was operating a

motorcycle Aug. 18, 2011 on Highway 41
in Menasha when he hit a trailer, suffering
injuries. The trailer did not have functioning
brake lights. The unknown driver of the truck
towing the trailer did not stop at the scene of
the accident.
Haack and his wife, Pamela Haack, filed a
lawsuit against his uninsured motorist insurers, Dairyland Insurance Company and Farmers Automobile Insurance Company. BlueCross
BlueShield of Massachusetts was included as
a defendant in the suit because of its possible
subrogation rights, in compliance with Wis.
Stat. 803.03.
The plaintiffs argued that the unknown
driver was an uninsured motorist, and the
unknown driver was negligent, which caused
the plaintiffs injuries and damages.
- Cristina Janda
SETTLEMENT
$172,000
Case name: Kathryn Trawin v. Cindy
Henrickson, Michael Trawin, Melissa Trawin,
and Kathy Trawin
Case type: breach of contract
Court: Barron County Circuit Court
Special damages: equitable relief,
pecuniary damages, exemplary damages,
attorney fees, costs, and disbursements
Trial dates: June 3, 2014
Plaintiffs attorneys and firm: Alexander
Ullenberg of Ullenberg Law Offices, Fond
du Lac
Defendants attorneys and firm: Terry
Moore of Herrick & Hart SC, Eau Claire
Plaintiffs experts: Jon Gargulak, of
Gargulak Appraisal Services LLC, Rice Lake
SETTLEMENT
$133,358.39
Case name: Lester and Pamela Haack v.
Dairyland Insurance Co., Farmers Automobile
Insurance Association, and BlueCross
BlueShield of Massachusetts
Court: Outagamie County Circuit Court
Date of incident: Aug. 18, 2011
Special damages: expenses for care and
treatment of injuries, lost wages, spouses
related loss of society and companionship
claim, interest, costs, and attorneys fees
Trial date: March 5, 2014
Plaintiffs attorney: John Peterson of
Peterson, Berk & Cross SC, Appleton
Defendants attorney: Monte Weiss
(attorney for Farmers Automobile Insurance),
and Russ Delury (representing BlueCross
BlueShield)
Worker falls into

HVAC vent at
construction site,
settles with
insurers
SETTLEMENT
$150,065
Case
Milwaukee County Circuit Court Judge

Jane Carroll approved a $150,065 personalinjury settlement, which included $50,000 for
attorney fees and $21,346.73 for costs.
documents):
The plaintiff, Jason Trevorrow, fell into an
uncovered HVAC vent at a construction site
on Nov. 16, 2007, while working for KleinDickert Milwaukee Inc, Pewaukee.
A defendant, C.G. Schmidt Inc., Milwaukee, was the general contractor on the project, which was at an Amtrak station work
site. Klein-Dickert was a window glazing
subcontractor. The defendants, Belonger
Corporation Inc., West Bend, and Regency
name: Jason Trevorrow v. Zurich

American Insurance Co., The Cincinnati
Insurance Co., C.G. Schmidt Inc., Continental
Western Insurance Co., Allstate Insurance
Co., Belonger Corporation Inc., Allied
Property and Casualty Insurance Co.,
Regency Janitorial Services Inc., and Wausau
General Insurance Co.
Case type: personal injury
Court: Milwaukee County Circuit Court
Date of incident: Nov. 16, 2007
Special damages: Pain and suffering,
disability, humiliation, embarrassment, worry
and mental distress, loss of enjoyment of life,

past wage loss, impairment of future earning
capacity, past and future medical expenses,
spouses related loss of consortium claim,
costs, disbursements, and interest
Plaintiffs attorneys and firm: Timothy
Trecek and Benjamin Wagner of Habush
Habush & Rottier SC, Milwaukee
Defendants attorneys and firm: Mark
Rattan and Brad Markvart of Litchfield Cavo
LLP, Brookfield (representing Cincinnati
Insurance), and Quentin Shafer of Shafer &
Stewart, Waukesha (representing C.G. Schmidt
Inc. and Zurich)
Expert: Dr. John Xenos, orthopedic surgeon
Janitorial Service Inc., New Berlin, were

also subcontractors doing HVAC installation and cleaning, respectively.
The plaintiff asserted claims for negligence
and violation of the safe-place statute, Wis.
Stat. 100.11.
The defendants argued that Trevorrows

own negligence outweighed any negligence of
the defendants, before that Trevorrow failed to
ensure that his workspace was free of hazard
and confronted an open and obvious danger.
- Cristina Janda
Wisconsins Leader in
Structured Settlements
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37
Back By popular demand: unsung Heroes 2015

The Wisconsin Law Journal is searching for the
states unsung legal heroes.
This years categories consist

of but are not limited to:
Lawyers in Wisconsin do outstanding work. But where would

they be without the members of their support staff who work
hard behind the scenes to get it all done?
Court Clerk(s) of the Year

Firm Administrator(s) of the Year
Human Resources Provider(s) of the Year
IT Specialist(s) of the Year
Law Librarian(s) of the Year
Legal Community Service(s) of the Year
Marketing Provider(s) of the Year
Legal Secretary(s) of the Year
Paralegal(s) of the Year
Lifetime Achievement
Pro Bono Provider(s) of the Year
Thats why, back by popular demand, the Wisconsin Law

Journal is honored to once again present Unsung Heroes in
2015, with a special publication and an awards luncheon Dec.3.
Nominate a deserving candidate by Oct. 9
If would like to nominate a person, company or

organization in a different category, please submit
that suggestion along with your nomination, as
award categories are subject to change.
Please nominate online here: http://wislawjournal.com/unsung-heroes/

or email your nomination to Jenny Byington at jenny.byington
@wislawjournal.com. Please include contact information for the nominee
(name, company, title, address, phone and email).
Description of nominee must be more than 150

words! More info is better as winners are
completely based off the nominations!
You can also submit a hard copy if preferred, to: Jenny Byington,
Classfied Account Executive, Wisconsin Law Journal,
225 E. Michigan St., Suite 540, Milwaukee, WI 53202.
CLE OPPO RTUNITY

Please join us for a CLE program sponsored by Bultman Financial Services, The Wisconsin Law
Journal and SJA Financial Advisory, LLC
The program will take place Oct. 14, 2015 from 8:30 AM 4:30 PM at Bultman Financial Services,
13625 Bishops Drive, Brookfield WI 53005. A continental breakfast and box lunch will be provided.
Space is limited. Please register by Oct. 7, 2015
Agenda:
8:30 am: Registration and Breakfast
9:00 am:
Medicare Made Clear (Approved for
2 CLE credits)
Presented by: Troy Wagner,
United Healthcare
11:00 am:
What Every SOLO and Small Firm
Attorney Needs to Know About
Health Insurance Planning for
Individuals and Small Businesses
(Approved for 1 CLE credit)
Presented by: Corrine Bultman
12:00 pm:Lunch
12:30pm:
Investment Strategies for 2015 and
Beyond (Approved for 1 CLE credit)
Presented By: Joseph B. Dailey, CFP SJA
Financial Advisory, LLC
1:30 pm:
Tax Strategies for 2015 and Beyond
(Approved for 1 CLE credits)
Presented by: Mike Arnow, CPA, CFP,
MBA SJA Financial Advisory, LLC
2:30 pm:
Developing an Employee Benefits Plan
for Small Business (2-50 Employees)
(Approved for 1 CLE credits)
Presented by: Ralph D. Bultman, CPA,
CLU and Corrine Bultman, GBDS
The cost to attend this event is $60

If you are interested in attending, visit
www.wislawjournal.com/cleopportunity or
call Jenny Byington at 414-225-1803
Approved for 6.0 CLE Credits

38
YES
FISCHER
Every month, the Wisconsin Law Journal asks experts

around the state for their take on pressing legal issues.
QUESTION OF THE MONTH

Do you see there being a place for any sort
of law that would shield some of lawmakers
communications from public view?
DEAN
FALLONE
Background: While putting the final

touches on the states budget in early
July, lawmakers approved a provision
that would have eliminated the
publics right to view many legislative
documents, including emails between
lawmakers and constituents. The
proposal was quickly withdrawn
following a public outcry.
Still, various legislators continue to call
for a new means of shielding from public
view at least some of the deliberative
materials that go into making new laws.
Brendan Fischer, general counsel for
the Center for Media and Democracy:
No. Wisconsin law already provides a
process to protect genuinely personal
information like a persons medical
information, but the presumption
is that communications with public
representatives about public policy
are part of the public record. This
transparency is a vital measure to deter
corruption and ensure a fully accountable
government.
Michael Dean, a lawyer in Brookfield:
Yes. But hard its to say what might
make sense. Gotcha politics makes
the open records law as much a
GESKE
KAMENICK
political weapon as a good government

tool, so lawmakers and officials feel
pressure to do meaningful business
outside channels. Im not sure theres
a very good solution that could provide
transparency and protect against abuse
at the same time.
Ed Fallone, law professor at Marquette
University: No. I would keep the entire
communication open to public view,
but clarify the circumstances where a
persons name would be blacked out.
Janine Geske, former Wisconsin
Supreme Court Justice: No. I do not
believe there is any place for protected
closed records in Wisconsins legislative
process. Now, more than ever, with
a great mistrust in government and
fear of the influence of big money in
decision-making, we need openness and
transparency in governmental records.
Tom Kamenick, open records attorney
at the Wisconsin Institute for Law &
Liberty: No. And peoples names should
almost never be blacked out. The public
has a right to know who is attempting
to influence a legislator, even when that
person is an ordinary constituent.
Likewise, when legislators are talking to
NO
PHILLIPS
HAWKINS
each other and doing the peoples work,

we should have oversight.
Andrew Phillips, attorney at von
Briesen & Roper: Yes. I believe that
there ought to be some limitation in the
public records laws related to disclosure
of lawmakers communications. There
are certain communications that are
completely unrelated to a public officials
office or responsibilities which, because
they bear no rational relationship to a
governmental purpose, ought to be
shielded. I personally believe in an
open government, the key term being
government communications
unrelated to government and policy
arent related to governments purpose.
Derek Hawkins, managing partner
at the Hawkins Law Office: No. I am
a strong proponent of transparency
in government, particularly among
the legislature. Lawmakers are
public servants, and as such their
communications with the public,
whether it be constituents or third
parties, regarding their duties should be
accessible to the public. These are the
individuals that shape and mold the laws
of our land.
39
Practice Management
Great Expectations
Law grads find paying off debt
not as easy as they had hoped
Jessica Stephen
Special to the Wisconsin Law Journal
When Karen Bauer was in law school, she

gave a presentation called Dont Freak Out
About Your Law School Loans.
Judging by what shes hearing from her
fellow graduates and the nearly 10 percent
unemployment rate reported by the American
Bar Association for the Class of 2014, a figure
down only a fraction from 2013 she might
want to dust it off.
Overwhelmingly, the people I talk to are
anxious and depressed about the amount of
student-loan debt they have. Many of them
are so fearful of when theyll ever repay it that
theyve refused to deal with it and let them go
into default, said Bauer, an attorney at the
Legal Aid Society of Milwaukee.
Since her graduation from the University of
Wisconsin Law School in 2009, Bauer has developed an unexpected specialty in law-school
debt and the repayment of student loans.
Its a familiar story at the State Bar of Wisconsins Lawyer Assistance Program, which
saw a four percent jump in calls about financial
troubles over the last fiscal year. The increase
was sharp from previous years, when few
calls, if any, were about money troubles.
Theyre struggling with finding a job.
Theyre struggling with high student-loan
payments relative to their income; theyre
not making enough, said Linda Albert,
program manager.
Theyre feeling disillusioned. They are
anxious. They are depressed. Its feeling, Will
I ever get a job? Did I waste my time going to
law school? Theyre really trying to figure it
out. Some people are close to defaulting on
their student loans. And thats where we see
the anxiety and depression set in.
They thought they would get a job that
would support themselves and their families.
They get out thinking theyre going to make
$70,000, and they make $50,000 and they
have $150,000 in student debt. And that
40
doesnt include their undergraduate debt.

So, they call our program. And what
were seeing is young lawyers are putting off
things that, typically, they would be engaging in, like marriage and having children and
buying homes. Its changing those decisions, and that is, in some ways, stressful
because its not what they expected to be
doing with a law degree.
I felt that pressure, and I still feel it, said
Kate Harrell, who spent six months living at
home after graduating from Marquette University Law School with $100,000 in debt.
Ive definitely postponed all sorts of things.
My car was on its last leg forever; the last
thing I could really afford was a car payment.
Eventually, I had to do it, but things like that, I
feel at this point in my life, shouldnt be such
difficult decisions. Things like vacation last
year was the first time I could afford to take
a vacation, said Harrell, who has been an
attorney since 2006.
You realize youre not going to get paid
what you think youre going to get paid. Unless
youre with a bigger firm, youre not going to
be making six figures, and thats a shocking
reality when you start.
With sacrifice, Harrell said, she has paid off
half of her law school debt an accomplishment that, this past year, helped dropped her
loan payments from $850 a month to $350.
That has been a huge relief, said Harrell,
an attorney at Boardman Clark in Madison.
Not having to pay that every month, I dont
worry as much about the debt. But its still
such a high figure. You make your monthly
payment, but it feels like it wont get paid off
until I retire.
It is, unfortunately, a little like a life
sentence, conceded Bauer, who walked
away with about $130,000 in debt when she
Classic, continued on page 42
Practice Management
41
Practice Management
Classic, continued from page 40
graduated in 2009 from the University of
Wisconsin Law School.
Like Harrell, Bauer also moved home for a
while, living in her sisters basement for five
months while she looked for work and tweeted
about student loans.
Nearly six years later, shes working to retire
that debt while paying $1,000 a month for daycare. That latter expense became unavoidable
when her husband took a job as an art teacher
at a public school.
With so much money walking out the door
every month, Bauers one saving grace the
great light at the end of a seemingly endless
tunnel has been the hope that her loans will
be forgiven.
Under the College Cost Reduction and
Access Act, which went into effect in October
2007, student loans can be cancelled if the
borrower has made at least 120 payments and
has worked at least 10 years in public service.
According to those requirements, Bauer
has just four years before her loans can be
forgiven.
Yet there are still reasons for anxiety. Bauers
job, for one, is supported by grants that last
only a year. Then there are proposals to curtail,
if not eliminate, loan forgiveness although
the Department of Education has suggested
grandfathering in certain students who are on a
repayment schedule that has been adjusted to
take into account their incomes.
Bauer said she knows there are no
guarantees.
Its terrifying for me to think about losing
my job and having to pursue a job to repay
loans, Bauer said.
Universities themselves can help meet some
of the needs.
At Marquette, for instance, about 60 graduates in public-sector jobs have received loan
assistance getting about $1,800 each on
average since the program began in 2001,
according to the school. To qualify, attorneys
must be working as public defenders or
prosecutors, for non-profits, for the military
or, in general, on behalf of those with barriers
to legal representation. They also must earn
less than the median starting salary made by
members of the previous graduating class.
Meeting those requirements may not be
hard for notoriously low-paid public servants.
But then there are lawyers in private practice.
Those who graduated from Wisconsins
42
two law schools, Bauer said, still make about

$70,000 a year on average and are often
required to meet stricter forgiveness standards
than their counterparts in the public sector.
For those reasons, many could be looking at
20 to 25 years before they see any debt relief.
If you think about what that amount of debt
does to a familys finances or just the ability to
have freedom in their careers, it informs why
people are so depressed, Bauer said.
Thats why Paul Katzman tries to help
students, before they enter the job market to
weigh, their career prospects and likely future
income against their debt load.
At some point, it is time to pay the piper,
said Katzman, assistant dean for career planning at Marquette law school, where 15 to 20
percent of the graduates have gone into publicsector work since 2010.
You realize youre not

going to get paid what
you think youre
going to get paid.
Kate Harrell
Attorney, since 2006,
at Boardman Clark in Madison
What debt does is its a fly in the ointment.

Its a wrench thrown in there that has to be
accounted for, because that dream job, assuming theyre otherwise qualified, because of
that debt or the compensation structure of that
field, can become less viable for them.
Whether its enough to steer them away
from that, that depends. But it creates a sense
of urgency. And well see graduates pursue positions they normally wouldnt and you can
see it coming, that there will be less satisfaction in that job but they take that job to begin
paying that debt.
So, what can the legal profession do?
Well, law schools could certainly freeze
tuition.
What a lot of older lawyers dont understand is why we have this much debt, Bauer
said. But we have this much debt because,
relative to the minimum wage or starting salaries for attorneys, the cost of legal education
has gone up exponentially.
According to the American Bar Association,

in-state or resident tuition for public law
schools was $2,006 in 1985. In 2012, it was
$23,000.
In 1985, you could easily work 10 hours
a week during law school and earn $2,006,
Bauer said.
Today, many law schools discourage
students from working, at least in their first
year. And, for students like Bauer, who juggled
one or two jobs during law school, the income
hardly seemed worth the effort.
The amount of money I made barely made
a dent. It cut about $10,000 off my debt; it
would have covered my law school education
in 1985.
Harrell believes that lawyers who have been
around longer sometimes fail to appreciate
their younger colleagues struggles.
Harrell said she has discovered that associates might only make a few thousand dollars
a year more than senior legal secretaries. In
fact, Harrell said that she made about the same
as a new associate when she was working, in
Denver, as a legal secretary with virtually no
experience.
I try not to let it get me down. Its just a
reality in life, but there are times when I think,
I just should have gone to work at Epic, or
you see what senior paralegals are making
without incurring that debt. It can be shocking, Harrell said.
They lowball it because they can. I think
theres this idea that they can get away with it
because people are still desperate for jobs and,
maybe, they can get away with it. But it doesnt
do anyone any good. They might get the associate to bite at the offer, but I think youre
setting yourself up for that associate leaving.
Theyre absolutely going to leave because they
have to with the debt.
Albert agreed.
Things dont necessarily have to be this
way, she said.
In August, her team of volunteers met to
talk about ways to reduce the effects of lawschool debt on young attorneys.
We are taking it on as a big piece of our
program, Albert said. Were looking at the
importance of mentoring programs which get
people lined up with another attorney who is
working and has made it through.
Bauer hopes its enough.
It shouldnt be the case that so many of our
lives and futures are so negatively affected by
our debt, she said.
STATEMENT OF OWNERSHIP,
MANAGEMENT AND CIRCULATION
Wisconsin Law Journal; Publication number 000-857; Complete Mailing Address of Known Office of Publication:
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Offices of the Publisher (Not printer), Wisconsin Law Journal, 225 E. Michigan St., Ste. 540, Milwaukee, WI 532024900; Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor: Stephen Staloch
Publisher, 225 E. Michigan St., Ste. 540, Milwaukee, WI 53202-4900; Editor, Joseph Yovino, 225 E. Michigan St.,
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REQUIRED BY TITLE 39 U.S.C. 3685 STATEMENT SHOWING OWNERSHIP, MANAGEMENT AND CIRCULATION OF Wisconsin Law Journal, publication number 000-857, filed October 1, 2015, Published Monthly 12
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43
People and Places

WHOS DOING WHAT
96 from Reinhart Boerner

Van Deuren make list
Reinhart Boerner Van Deuren has announced that 96
of the firms attorneys were selected by their peers for
inclusion in The Best Lawyers in America 2016 list.
Within Reinharts group of 96 selected attorneys, nine
were named Lawyer of the Year.
Marquette to host
sports law conference
Hupy and Abraham President Michael Hupy (middle) donates $50,000 to the Milwaukee Justice Center alongside MBA
Foundation President Francis Deisinger and Mary Ferwerda, executive director of the Milwaukee Justice Center.
Hupy donates $50,000 to

Milwaukee Justice Center
WHD elects board

members, shareholders
Hupy and Abraham President Michael Hupy recently

donated $50,000 to the Milwaukee Justice Center.
Hupy is a founding member and the principal
benefactor of the MJC. He has already donated $100,000
to help transform MJC from an idea into a reality.
Located in the Milwaukee County Courthouse, MJC has
helped more than 20,000 people in the past two years.
Whyte Hirschboeck Dudek has announced the election

of Gina Carter, John Emanuel and Eric Lenzen to its board
of directors, and has also announced the re-election of
Andrew Jones to its board.
Jones has served on the board since 2012. Fellow
board members include Patrick Howell, Daniel Miske and
Joseph Pickart.
Erik Eisenmann, Patrick Harvey and Philip Koutnik have
been elected shareholders.
Schmidt joins
Ogletree
Deakins
Kelsey Schmidt has joined
the Milwaukee office of Ogletree
Deakins as an associate.
She earned her law degree
from the University of Wisconsin Schmidt
Law School and focuses her
practice on employment law matters.
Attorneys named
to Best Lawyers list
Kohner, Mann and Kailas attorneys Robert Gegios,
Matthew Gerdisch, Christopher Kailas, Samuel Wisotzkey
and David Chartier have been selected by their peers as
The Best Lawyers in America.
Gegios has also been named Best Lawyers 2016
Antitrust Law Lawyer of the Year and is the only attorney
at Kohner, Mann and Kailas to receive the award.
44
Coon named to
Best Lawyers list
Hall Renders Larry Coon was recently named the Best
Lawyers 2016 Milwaukee Health Care Lawyer of the
Year, and Pat Walsh was named the Best Lawyers 2016
Milwaukee Project Finance Lawyer of the Year.
Seventeen other Hall Render attorneys were also
named to the list: Liz Callahan-Morris, Art deVaux, Mary
Gaughan, Scott Geboy, Terry Heath, Doug Long, Steve
Lyman, John Render, John Ryan, Mark Sabey, Ren
Savarise, Dave Snow, Wally Stromberg, Gerry Stovall,
Scott Taebel, Bill Thompson and Gregg Wallander.
3 WHD attorneys
named Best Lawyers
Whyte Hirschboeck Dudeks Ross Anderson, Richard
Lewandowski and Philip Miller were recently selected by their
peers for inclusion in The Best Lawyers in America 2016 list.
Marquette Law School is hosting a national sports law

conference.
The conference, which is hosted by the National
Sports Law Institute of Marquette University Law School,
is scheduled for 9 a.m. Oct. 16 at Eckstein Hall, 1215 W.
Michigan St.
This years theme will be maintaining fairness, integrity
and safety in sports, according to a news release.
Speakers at the event include former Major League
Baseball Commissioner Bud Selig, lecturer in sports law
and policy at the law school.
Registration is $150 and can be done online. The
institute will seek CLE credits for the event from the Board
of Bar Examiners.
The institute was founded in 1989 and sponsors local
and national events and spreads information about the
sports industry and sports law through publications,
including the Marquette Sports Law Review.
Quarles & Brady gives

back to the hungry
Quarles & Brady LLP has announced that its first firmwide summer hunger campaign raised equivalent money
to provide nearly 130,000 meals to hungry children and
families across its hometown office locations.
The initiative was coordinated by Quarles Cares, the
firms program that supports charities and causes across
each of its offices. The primary areas of focus are projects
related to hunger and education. Organizations that
benefited from the firms efforts include A Just Harvest
in Chicago; Shepherd Community Center in Indianapolis;
Second Harvest Foodbank in Madison; Hunger Task Force
in Milwaukee; St. Matthews House in Naples, Fla.; Boys
& Girls Clubs of Metro Phoenix; End 68 Hours of Hunger
in Tampa; Community Food Bank of Southern Arizona in
Tucson; and the Capital Area Food Bank in Washington, D.C.
Submit your good news

for our Whos Doing What
monthly feature to Joe
Yovino, editor, at
joe.yovino@wislawjournal.com
People and Places
Remembering
justice n. patrick crooks

Longtime Wisconsin Supreme Court Justice
N. Patrick Crooks died of natural causes on
Sept. 21 in his chambers in Madison.
TOP PHOTO
M.P. KING/WISCONSIN STATE JOURNAL VIA AP, FILE
Wisconsin Supreme Court Justice N. Patrick Crooks

speaks inside the Wisconsin Supreme Court in 2013.
BOTTOM PHOTO
JOHN HART/WISCONSIN STATE JOURNAL VIA AP
Wisconsin Supreme Court Justice Shirley Abrahamson

places a judicial robe on the chair of the late Justice
Crooks following a moment of silence Sept. 22.
Crooks was elected to his first 10-year term on the Wisconsin Supreme Court in 1996, and was
re-elected in 2006 without opposition. He was appointed as a Brown County judge in 1977 by
then-acting Gov. Martin Schreiber. In 1978, Crooks was elected a Brown County Circuit Court
judge. He was re-elected to the Brown County Circuit Court in 1985 and 1991. Crooks said in
mid-September that he wouldnt run for a third 10-year term on the high court and instead
planned to retire when his current term ended in July. The state Supreme Court held a moment
of silence for the justice on Sept. 22.
45
Closing Arguments
PRO | THERES NOTHING NEW ABOUT
A COURT DOING SOME INDEPENDENT
FACT FINDING
QUESTION:
Should judges be to allowed to make rulings based on facts
introduced into the record through their own Internet research?
hat is the proper role of an

BACKGROUND:
appellate court judge? Is it to In the recent case of Rowe v. Gibson, a fairly routine appeal concerning a prisoners medical
treatment turned into a full-blown controversy about whether judges should be allowed to base
simply accept the record as
their rulings on their own independent Internet research.
is, or to go beyond the cases and facts
In writing the majority decision, Judge Richard Posner of the U.S. Court of Appeals for the
cited by the parties in their briefs?
Seventh Circuit relied on facts that were not originally part of the judicial record but were
In the case of Rowe v. Gibson,
instead gleaned from research he had conducted on Web MD, Wikipedia and similar websites.
In Rowe v. Gibson, Jeffrey Allen Rowe had accused prison officials of failing to properly treat
Judge Richard Posner arrived at
him for a gastro-intestinal complaint.
his decision, in part, by relying on
Rowe, who was representing himself, did not enlist a medical expert to testify on his behalf. That
information he had gathered from
him at a disadvantage to the defendants, who were able to cite expert testimony to bolster
various websites independent of what put
their arguments.
was included in the judicial record.
In finding in favor of Rowe, Posner defended his use of Internet research by writing that it would
In dissent, Judge David Hamilton
have been heartless to rule against Rowe simply because he has no practical access to
strongly rebuked Posner, arguing it
offsetting evidence. In a strongly worded retort, Posners bench mate David Hamilton accused
Posner of breaking from precedent and questioned whether judges are presuming too much if
was improper for him to introduce
they think Internet research can turn them into substitutes for medical experts.
facts that way.
But is what Posner did so unusual?
facts from amicus briefs that were never part of
Judges have always been able to take judicial
the record.
notice of certain facts.
Whether appellate or even trial court judges
Also, courts routinely cite
should go outside the record and find facts the
dictionary definitions to support
parties are not aware of is a complex question.
their opinions and, more recently,
On one hand, it is unfair to the parties.
(also more controversially)
How can an attorney make an argument
Wikipedia.
concerning facts of which they are unaware? On
There is a high standard for
the other hand, used sparingly and judiciously,
Nick Zales
taking judicial notice of a fact,
judges ability to go outside the record on appeal
Posner wrote, and a low standard for allowing
can help achieve justice.
evidence to be presented in the conventional
As Posner wrote: Must our system of justice
way, by testimony subject to cross-examination,
allow the muddled affidavit of a defendant who
but is there no room for anything in between?
may well be unqualified to be an expert witness
Perhaps the definition of judicial notice needs to
in this case to carry the day against a pro se
be amended.
plaintiff helpless to contest the affidavit?
It is a sacrosanct rule of appellate law that
Rowe was a prisoner with no resources up
attorneys may not go beyond the record in
against a private law firm and the State of
making arguments. Whether judges are free to go Indiana. His request to the trial court for a lawyer
outside the record is less clear.
and expert were denied. The issue was one of
No one would argue an appellate court
proper medical procedure, something that could
judge cannot apply controlling law not cited by
be found on the Internet.
the parties or the trial court. But what about
Judges should not be advocates but likewise
independent fact finding?
they should not sit back and affirm an injustice.
The U.S. Supreme Court has been doing it for
In this case, it was fair for them to go outside the
decades. In cases ranging from the Brandeis
record to achieve justice.
Brief of 1908 to Brown v. Board of Education to
Nick Zales is an appellate lawyer in Milwaukee,
Citizens United v. FEC, the court has been citing
Wisconsin.
46
Closing Arguments
CON | POSNERS MOVE GAVE DEFENSE NO CHANCE

TO REFUTE INDEPENDENTLY GATHERED EVIDENCE
owe brought a suit, pro se, alleging that

the administration and staff of an Indiana
prison were deliberately indifferent to a
serious medical need.
The Federal District Court granted the prisons
motion for summary judgment relying, in part, on
the affidavit of the contract physician, which was
submitted as expert testimony. In reversing the
trial courts order, Judge Posner, writing for the
majority, relied heavily on research conducted
on the Internet sites of respected medical
clinics, drug manufacturers and distributors, and
other reputable medical related sites. He also
conducted research on Wikipedia.
Judge Posners majority opinion prompted
a strong dissent from Judge Hamilton, who
chastised Judge Posner for premising the
reversal of the trial court on evidence this
appellate court has found by its own internet
search. In her concurrence, Judge Rovner
succinctly stated that the dispute between
Judges Posner and Hamilton was over the
propriety of appellate courts supplementing the
record with Internet research.
Judge Posner stepped over the line when
he found and introduced evidence that directly
contradicted the prisons summary-judgment
presentation, including the self-serving affidavit
of the contract physician. It is appropriate for
appellate judges to conduct Internet research
and use the fruits of that research to provide the
reader with context and background information
to clarify the courts reasoning; in fact, I have
done it myself.
However, an appellate judge goes too far when

he conducts Internet research and discovers
significant evidence which, as in this case, creates
a disputed issue of material fact. By doing so,
he becomes an advocate rather than an arbiter.
It was only through the research conducted by
Judge Posner that it became clear that the contract
physicians prescribed timing of Rowes medication
violated the manufacturers recommended timing
for dosing and the general medical practice for the
administration of this particular drug.
Historically, our adversary system has called on
litigants themselves to develop the record they
believe supports their claims and defenses. A
judge will declare a mistrial if it is learned a juror
conducted independent research.
Trial judges have suffered reversals when they
make a decision on facts without support in
the record. So it is egregious for a judge on an
appellate court to dig up new evidence during
Internet research and rely upon it in reaching
a decision. Simply put, it is sand-bagging the
parties; they do not have the opportunity to
challenge and rebut the evidence.
Judge Posner may have had the best of
intentions; he asked, (s)hall the unreliability of
the unalloyed adversary process in a case of such
dramatic inequality of resources and
capabilities of the parties as in this
case be an unaltered bar to justice?
Unfortunately, the old legal saw I
learned as a first-year law student
is still valid today, Hard cases
make bad law.
Daniel P. Anderson retired in 2011 Daniel P. Anderson
after 21 years on District II of the
Wisconsin Court of Appeals.
47
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VOLUME29 | NUMBER10

LIMB LOSS CASE LEADS TO REVISITING

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At the intersection of legal hurdles and business objectives is a law firm

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39 Around the Water Cooler

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