Forty-Five Plus Years – Wow!!!!

Posted on Categories Marquette Law School, Marquette Law School History, Public2 Comments on Forty-Five Plus Years – Wow!!!!
John Kircher teaches a law school class, 1986
John Kircher teaches a law school class, 1986

Editor’s Note:  This semester, Marquette University Law School students will hear the immortal words, “I already have a  friend,” for the last time.  After a legendary career, Professor Jack Kircher will end his teaching duties in December.  He has influenced and inspired thousands of Marquette Lawyers over the past four-plus decades, and he has graciously agreed to share some reflections on his career.  And if you don’t understand the reference to “She Who Must Be Obeyed,” the answer can be found in John Mortimer’s delightful television series “Rumpole of the Bailey.”

Someone, possibly me, once said that if you find a job you love you will never again work another day in your life. That speaks well of my time here at the Law School.  My work here has been, with all apologies to “She Who Must Be Obeyed,” a love affair.

But my goal, leaving here as a graduate, was not to become a Law Professor.  I wanted to be a lawyer who would spend most of the time in a courtroom.  That is how I started, but then came the phone call.  It was from Professor James D. Ghiardi, my most favorite teacher during my three student years here at the Law School.  He asked me to join him as his assistant at the Defense Research Institute (DRI).  It was a national think tank for lawyers who defend insurance and personal injury litigation. It involved a lot of research, writing and editing.  It was then and there I learned, for the first time, that Jim had two full-time jobs.

My initial thought at his call was pride that he would seek me out to join him. I also came to the conclusion that if I did not like the new job I could always go back to the courtroom. But I did not go back to the court room.  But how did I end up in the classroom? The first step again relates to Jim. Continue reading “Forty-Five Plus Years – Wow!!!!”

People Who Have Shaped the Teaching Careers of Our Faculty—Part 2

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The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This is the second submission in the series, and it is by Professor John J. Kircher.

The answer to the question “who has been the most formative figure in your career as a legal educator” is very easy for me. It is one name, Professor James D. Ghiardi. During the course of my career Jim Ghiardi has been my law professor, my boss, my mentor, my golf partner, my colleague, my coauthor and my second father. I feel very fortunate to have had the ability of spending a great deal of time with him over the course of my career. Many learning experiences came from that, not only observing what he said, but also what he did.

My initial exposure to the man was in my first year of law school. He was my Torts professor. There was no attorney in my family and, other than characters in movies and on television, I never had any personal exposure to one. I was impressed. He was dressed in a business suit, unlike many undergraduate faculty members to whom I had been exposed. They dressed like their students, possibly thinking that undergraduate chic might make them appear young – certainly not professional. Jim told us that law was a profession and that he expected us to act and think like professionals. He told us what his role would be in the classroom and what our role should be.

A significant sign of Jim’s professionalism is evidenced by the fact that he was elected by the members of the State Bar of Wisconsin to be President of that organization. As far as I can discern he is the only “academic lawyer” to have achieved that status. However he was more than an academic lawyer. He was and continues to be a true professional. He certainly was and continues to be my role model.

 

If the Law Says That . . .

Posted on Categories Business Regulation, Health Care, Wisconsin Law & Legal System2 Comments on If the Law Says That . . .

This is the second post in an occasional series entitled “Law Gone Wrong.”  The editors of the Faculty Blog invited Law School faculty to share their thoughts on misguided statutes, disastrous judicial decisions, and other examples where the law has gone wrong (and needs to be nudged back on course).  Today’s contribution is from Professor Jack Kircher.

Alright, the law of subrogation is fairly simple.  If one who is secondarily liable pay a debt that should have been paid by the primarily liable person, the one who pays the debt steps into the shoes of the creditor to pursue the one primarily liable.  Subrogation also applies to an indemnity insurance situation.  An insurer paying on its policy when its insured sustains a loss caused by a tortfeasor may pursue the tortfeasor for the amount the insurer paid.  It thus becomes the alter ego of its insured, the tort victim, as to the tortfeasor.  In this context both insurance and tort law concern themselves with indemnity.

A wrinkle has been added to the basic context in Wisconsin and elsewhere.  Continue reading “If the Law Says That . . .”

Some Exam-Taking Advice from Professor Kircher

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[Editor’s note:  In this post, Professor John J. Kircher provides the first installment in our new series, “What are your best exam-taking tips for law students?”]

To begin with, always be careful to understand the “call” of the question. That is, what is the professor asking you to do? If he or she casts you in the role of the defense counsel and asks you to evaluate that side, don’t waste your time explaining what a great case the plaintiff has under the circumstances provided!

Also, if the question is jurisdiction-specific (e.g., Wisconsin), don’t waste your time and effort explaining the law of all other jurisdictions.

Finally, if you are uncertain about the answer to a particular question, go on to the other exam questions.  It is better to have one unanswered question than to spin your wheels and waste time trying to figure out its answer only to have inadequate time to properly answer the remaining questions.

Memories of Sensenbrenner Hall (Part 1)

Posted on Categories Marquette Law School, Marquette Law School History4 Comments on Memories of Sensenbrenner Hall (Part 1)

As the Law School community prepares to leave our current home and move into a new facility, it seems appropriate to pause and recall some of the memorable events that have taken place in Sensenbrenner Hall over the years.  Professor Jack Kircher shares the first of what we hope will be many faculty memories recounting the various classroom surprises, distinguished visitors, and construction oddities associated with our present surroundings.  These memories will ensure that Sensenbrenner Hall lives on forever in our hearts.  

My first memory of Sensenbrenner Hall goes back to my time as a 1L.  At that time, the library occupied all of the third floor, the second floor had two large classrooms and a moot court room, the first floor had two large classrooms, and the administrative offices (Dean, etc.) occupied the space now used by Admissions.  During the 2d semester of my first year, we were in our Contracts class during the early afternoon in a second floor classroom that occupied all of the east side of that floor (now Rooms 204 and 210). It must have been Springtime, as I remember that the windows in the room were open (they opened back then).  Unbeknownst to us, Marquette University had just announced that the school would no longer play varsity football beginning the following fall.  As we sat there in class, discussing some arcane Contracts issue, we slowly began to hear the chant “we want football” coming from the west. Continue reading “Memories of Sensenbrenner Hall (Part 1)”

Judicial Verbosity – It’s Not Easy Being Green

Posted on Categories Judges & Judicial Process, Legal Writing1 Comment on Judicial Verbosity – It’s Not Easy Being Green

paper-millAn article, “Conciseness in Legal Writing,” by my colleague Lisa Hatlen in the June 2009 issue of Wisconsin Lawyer [at 21] got me thinking.  My conclusion: I am surprised that “green” organizations do not picket at various appellate courthouses in this country, especially in Madison, Wisconsin.  A lot of trees are paying a price for judicial verbosity.

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.]  Continue reading “Judicial Verbosity – It’s Not Easy Being Green”

Stealthy or Shifty Tort Change

Posted on Categories Tort Law, Wisconsin Law & Legal System9 Comments on Stealthy or Shifty Tort Change

Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages.  Evidently, no one read the whole bill before taking the decisive action.

A similar approach seems to be occurring here in Wisconsin.  Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.

Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.”  Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!”  Aren’t juries supposed to be finders of fact and not charity institutions?

Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects.  Continue reading “Stealthy or Shifty Tort Change”

The Assault Upon the Citadel

Posted on Categories Legal Scholarship, Tort LawLeave a comment» on The Assault Upon the Citadel

I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)].  In that regard, it probably has had even more of an effect on me than any of my own articles.

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

My Favorite Wisconsin Cases

Posted on Categories Legal Education, Tort Law, Wisconsin Civil Litigation, Wisconsin Supreme Court1 Comment on My Favorite Wisconsin Cases

Where does one start?!  I attempt to bring Wisconsin law into my classes for several reasons.  The “Diploma Privilege” permits our students to practice in this state without taking the Bar Exam.  Wisconsin courts have been pacesetters as to matters considered in the subject areas in which I teach.  I believe students should learn, as early as their first year with us, that is not improper for one to find fault with judicial and legislative reasoning, at times even in a humorous fashion, as long as due respect is shown.

The first of my favorites is considered in my Torts class.  It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982).  It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property.  It is referenced to show how, at times, state legislatures see fit to modify common law rules.  The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another.  Continue reading “My Favorite Wisconsin Cases”

Favorite Law Movies: Witness for the Prosecution–An Oldie But a Goodie!

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This 1957 courtroom drama is based on a short story, and later a play, by Agatha Christie.  It involves the seasoned barrister and curmudgeon Sir Wilfred Robarts, masterfully played by Charles Laughton.  He takes on the murder defense of Leonard Vole (Tyrone Power).  Robarts’ private nurse (Elsa Lancaster) objects, constantly reminding the barrister of his doctor’s advice to stay away from criminal cases due to ill health. Vole is accused of the murder of a wealthy older woman Mrs. French (Norma Varden) who appeared to have fallen in love with him and changed her will to give Vole the bulk of her large estate.  Circumstantial evidence strongly points to Vole’s involvement.

Vole claims his defense is based on the fact that his wife, Christine (Marlene Dietrich), will testify that he arrived home the evening of the murder long before it occurred.  Robarts, of course, counsels Vole that the testimony of a wife in such a situation will be suspect.  Robarts’ first meeting with Christine leaves him concerned with her demeanor and sincerity. Continue reading “Favorite Law Movies: Witness for the Prosecution–An Oldie But a Goodie!”

Appreciating Our Professors: James D. Ghiardi

Posted on Categories Legal Education, Marquette Law School1 Comment on Appreciating Our Professors: James D. Ghiardi

My first experience with Professor James D. Ghiardi occurred in the fall of 1960 when I was a first year student at the Marquette Law School. I learned that Jim was my Torts teacher. Prior to that time I had never known any attorney. There were none in my family, and none of my friends had relatives who practiced law. I recall thinking in that first Torts class, if Jim was what being a lawyer was about, I had selected the right form of postgraduate education. He was the kind of lawyer I wanted to be.

At the inception, Jim made it clear to me and my fellow students that he was there not only to help us learn what Torts was all about, but also so that we learned to think, speak, and act like lawyers. We were not there to learn how to be philosophers, economists, sociologists, or political scientists. He also made it clear to all of us that knowing the elements of any particular Tort theory did a lawyer little good if he or she did not know how to prove those elements in court. What I experienced in that class made me want to take Jim’s other courses as well. It was very clear to anyone who cared to observe that Jim loved the law and what he was doing.

But Jim Ghiardi was much more than a law professor. He was and remains a dedicated husband, father, and now grandfather. He has served as President of the State Bar of Wisconsin. Election to that post speaks volumes about the respect he earned from lawyers in the state — even those who were not Marquette alums. He also served as a representative of the State’s bar in the ruling body of the American Bar Association. Jim loves sports, being a Marquette Basketball season ticket holder for as long as I can remember. Up until a few years ago he was also an avid golfer.

Several years after I graduated from the Law School, I felt a great deal of pride after making a presentation at a Wisconsin State Bar meeting. Thereafter, a member of the audience approached me and said that he was one of Jim’s former students. He then said that when he closed his eyes while listening to me he could have sworn that it was Jim making the presentation. High praise indeed.

Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

Posted on Categories Tort Law1 Comment on Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

I am very happy with the state of tort and insurance law. Thus, my message to the new president would be: Don’t change a thing.

I suspect that will be true if a Republican is elected president. If a Democrat is elected, I also suspect there will be little change in tort law brought about by Congressional action, especially when one considers the financial support the organized plaintiffs’ bar is providing to the dems, particularly to their presidential candidate.

However, if the November election results in the continuation of Democrat control of Congress and puts a Democrat in the White House, there could be a significant impact on insurance law. That impact could well be a switch from state to federal regulation of insurance. Continue reading “Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law”