Springtime for Daubert: Insights From the EDWBA Panel

Posted on Categories Civil Procedure, Eastern District of Wisconsin, Evidence, Federal Civil Litigation, Wisconsin Civil LitigationLeave a comment» on Springtime for Daubert: Insights From the EDWBA Panel

In late January the “tort reform” package imposed the staid Daubert rules on the Wisconsin Rules of Evidence. Now it’s spring, although the weather feels a lot like January, and we must get serious about what to do with this gift that the judiciary did not want. The new rules require that expert testimony be based on demonstrably reliable methods and principles. To be determined is whether Wisconsin will be a “strict” or a “lax” Daubert jurisdiction — whatever that is. It is worth noting that the first wave of Wisconsin Daubert cases, which will likely set the mold for what follows, are also those that least interested the tort reformers, namely, criminal cases and “chapter 980” sexually violent offender cases.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do. Continue reading “Springtime for Daubert: Insights From the EDWBA Panel”

More “Bullcoming”? The Court Courts Confusion in Confrontation

Posted on Categories Criminal Law & Process, Evidence, U.S. Supreme Court3 Comments on More “Bullcoming”? The Court Courts Confusion in Confrontation

In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

Continue reading “More “Bullcoming”? The Court Courts Confusion in Confrontation”

Tort Reform 2011: True Science or Pure Mischief?

Posted on Categories Evidence, Tort Law, Wisconsin Law & Legal System6 Comments on Tort Reform 2011: True Science or Pure Mischief?

Well, that didn’t take long.  In its first week of political life, the new legislature has proposed sweeping “tort reform” legislation.  The compass of the 30-plus page bill is manifold, embracing punitive damages, fee shifting, product liability claims, and damages caps.  What interests me more, however, are proposed changes to the Wisconsin Rules of Evidence governing expert opinion testimony.  For years, some have bemoaned Wisconsin’s failure to adopt the so-called Daubert rule (see below), an often restrictive, ad hoc standard that ostensibly identifies those “reliable” expert methodologies worthy of consideration by the courts.  Unreliable methods, of course, are excluded.  And while courts and commentators still debate how one goes about reliably identifying reliable methodologies, Wisconsin will apparently make up for lost time by not only adopting Daubert, but also go it one better by requiring that expert methodologies be “true” as well as reliable.

True in what sense you ask?  Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word.  While you’re pondering what “true” might mean (and I still am), let me offer some background. Continue reading “Tort Reform 2011: True Science or Pure Mischief?”

Problems Aplenty With Forensic Science

Posted on Categories Criminal Law & Process, Evidence3 Comments on Problems Aplenty With Forensic Science

Last weekend I had the pleasure to participate in a conference sponsored by the Wisconsin Association of Criminal Defense Lawyers entitled, “Whatever Happened to the Science in Forensic Science?”  The conference centered upon the 2009 report by the National Academy of Science (NAS) that confirmed suspected and significant concerns about how the criminal justice system had been using science for decades.   And as if the NAS report wasn’t bleak enough, a number of speakers pointed to looming problems with DNA evidence, heretofore the vaunted “gold standard” for forensic science, and even with medical experts who diagnose child abuse.  In sum, the whole field is starting to resemble a mass of toxic Hungarian red sludge that is oozing over and through the law’s inadequate bulwarks.  (And no, I don’t believe that the answer is the Daubert “reliability” standard, which has proven to be ineffectual in most ways and pernicious in others.) 

 Kudos for organizing the conference go to Amelia Bizzaro (Law ‘03).  The conference drew excellent criminal lawyers and forensic experts from across the country (Boston, New York, Phoenix) as well as locally talented lawyers, such as Jerry Buting and Craig Albee.  Professor Paul Giannelli (Case Western) spoke about the NAS report itself while I discussed its impact on Wisconsin law governing expert evidence.  Paul and I agreed that the NAS report itself could be used to cross-examine forensic experts about deficiencies in their methodologies and theories, an inexpensive yet effective way of putting this information before a jury. Continue reading “Problems Aplenty With Forensic Science”

The Verdict? A Very Successful Civil Trial Conference

Posted on Categories Evidence, Federal Civil Litigation, Marquette Law School, Wisconsin Civil LitigationLeave a comment» on The Verdict? A Very Successful Civil Trial Conference

marquette1One of this Law School’s most noteworthy legacies is its production of many of the region’s most outstanding trial lawyers.  The legacy was fully evident on Friday, November 6, 2009 at the Civil Trial Evidence and Litigation Conference.  The sold-out event served as a “last call for Sensenbrenner Hall” of sorts while featuring a panel that well-represented the many fine trial lawyers who have distinguished themselves as Marquette lawyers.  It was my privilege to help organize the conference along with Pat Dunphy (L’76), who conceived of the idea and was the key to assembling the talented panel of Marquette alumni.  In light of Friday’s success, Pat and I have already begun discussing next year’s civil litigation conference, which will be held in the Law School’s new venue in Eckstein Hall. 

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome. Continue reading “The Verdict? A Very Successful Civil Trial Conference”

Why Did Lincoln Try to Buy a Slave? (One of Lincoln’s More Troublesome Legacies)

Posted on Categories Legacies of LincolnLeave a comment» on Why Did Lincoln Try to Buy a Slave? (One of Lincoln’s More Troublesome Legacies)

The Legacies of Lincoln Conference held on October 1 and 2, 2009 was, as Dean Joseph Kearney reported earlier, a terrifically successful program by any measure – attendance, audience response, and, most certainly, engaging presentations.  Jointly sponsored by the Law School and the History Department, the Conference featured lectures and comments by influential historians and lawyers which will appear later next year in the Marquette Law Review, yet another measure of the Conference’s success.  This is the first in a series of blog posts by Dean Kearney and me that will highlight each of these submissions, together with links to the audio of the Conference itself.

We begin most appropriately with the draft article of the Klement Lecture delivered by the distinguished historian Allen C. Guelzo of Gettysburg College, entitled “Colonel Utley’s Emancipation; or, How Abraham Lincoln Offered to Pay For a Slave.”  The provocative title reveals the subtlety of Guelzo’s analysis and historical judgment.  Continue reading “Why Did Lincoln Try to Buy a Slave? (One of Lincoln’s More Troublesome Legacies)”

The Lincoln Bicentennial Commission

Posted on Categories Marquette Law School, MilwaukeeLeave a comment» on The Lincoln Bicentennial Commission

Last week’s highly successful Legacies of Lincoln conference at the Law School, co-sponsored by the History Department, generated much praise and many compliments from both participants and the audience.  For those unable to attend as well as those hungering for more insights about Lincoln, please visit the Law School’s website or consider attending the program described below.

On Saturday, October 10, 2009, the Wisconsin Lincoln Bicentennial Commission will commemorate the Bicentennial of Abraham Lincoln’s birth as well as the 150th anniversary of Lincoln’s speech at the Wisconsin State Fair in Milwaukee on September 30, 1859. The keynote speaker for the event will be Orville Vernon Burton, emeritus professor of history at the University of Illinois and Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University.  His most recent book is The Age of Lincoln.  

The Program will be held in Memorial Hall at the Milwaukee War Memorial Center from 11 am to 12:30 pm.  Members of Wisconsin’s 1st Brigade Band will perform Civil War period music beginning at 10:30 am.  Continue reading “The Lincoln Bicentennial Commission”

Confrontation and Criminal Trials: What’s Actually in Play

Posted on Categories Constitutional Interpretation, Criminal Law & Process, U.S. Supreme CourtLeave a comment» on Confrontation and Criminal Trials: What’s Actually in Play

The long-awaited Supreme Court decision in Melendez-Diaz v. Massachusetts finally came down on June 25, 2009.  See my prior post here.  Neither the majority opinion nor the dissent yield many clues about what took so long (this was the last case from the Court’s November sitting), and on the surface at least there is little that is portentous.  Yet the case is ultimately about far more than hearsay evidence in criminal trials.  It reveals significant discord about the nature of the modern adversary trial as well as skepticism over the use of science in the courtroom. 

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test.  The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination. Continue reading “Confrontation and Criminal Trials: What’s Actually in Play”

Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Posted on Categories Criminal Law & Process, Evidence, Federal Law & Legal System, U.S. Supreme CourtLeave a comment» on Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some). Continue reading “Confrontation Avoidance? Part I: A Good Article to Read While Waiting”

Client Fraud and the Lawyer

Posted on Categories Criminal Law & Process, Legal Ethics, Legal Practice, Uncategorized, Wisconsin Law & Legal SystemLeave a comment» on Client Fraud and the Lawyer


As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)? Continue reading “Client Fraud and the Lawyer”

Taking Oaths Seriously

Posted on Categories Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch2 Comments on Taking Oaths Seriously


Most presidents take the oath of office twice in their lives only if reelected.  Yesterday night, Barack Obama took the oath – again –  from Chief Justice John Roberts because of the miscues during the inauguration ceremony the day before.  The media’s take, thus far, is to poke fun at what is called the “do over,” the “flub heard around the world,” (MSNBC) and the “oaf of office” (courtesy of the New York Post).  Yet at the same time, we are assured that Obama’s first oath was essentially good enough or perhaps even unnecessary for him to assume the presidency because the new term began at noon on January 20, 2009 regardless.  Yale’s Akhil Amar obligingly opined on NBC that the second oath was akin to “wearing both a belt and suspenders.” 

Personally, I’d find it somewhat unsettling if Obama began wearing a belt along with suspenders, so I think it is worth our time to take seriously an event that obviously the President and the Chief Justice took quite seriously.   I am very much impressed that Obama and Roberts thought the oath significant enough to warrant the second ceremony.  Clearly it was not done to deflect the embarrassment of the day before; indeed, the second oath only underscored their abject failure to recite correctly the 35 word oath – hardly a pas de deux.  I also doubt that either Obama or Roberts fretted about the legality of the inauguration ceremony; the second oath was not intended to avoid crack pot law suits.   Continue reading “Taking Oaths Seriously”

An Ode to John Mortimer

Posted on Categories Popular Culture & Law6 Comments on An Ode to John Mortimer

As faculty blogger of the month, I feel obligated to address this month’s question about one’s favorite movie about legal practice.  In truth I have no such favorite movie, only some that are less tedious or off-putting than others.  Yet the recent passing of John Mortimer (left) compels me to say just a few words.  (I know an “ode” is supposed to be a poem, but I’m a lawyer after all, so a short essay is the best I could hope for.)

I honestly do not much like movies or television shows about lawyers or legal practice.  It’s not that they are “unrealistic”; they are, after all, entertainment, not educational in purpose.  The lawyers are usually caricatures at one extreme or the other.  On the one side you have the unctuous Atticus Finch-type (I’d rather leave the planet than read or watch To Kill a Mockingbird — Finch loses the big case and gets his client killed; nice job!) and on the other you have the venal sleaze-ball.  I like subtlety.  Denzel Washington’s character in Philadelphia, for example, is affecting because he portrays a lawyer fighting his own demons while battling for his client.

And this brings me to John Mortimer, himself an accomplished barrister, a champion of free speech, and a gifted writer who died last week in Great Britain.  Continue reading “An Ode to John Mortimer”