Access to Justice in a Civil Context

Posted on Categories Federal Civil Litigation, Human Rights, Judges & Judicial Process, Legal Profession, Pro Bono, Public, Wisconsin Civil LitigationLeave a comment» on Access to Justice in a Civil Context

ATJ-reportIndigent defendants in criminal cases, and select civil matters (i.e., child in need of protective services petitions, termination of parental rights petitions, Chapter 51 petitions, and Chapter 980 petitions), are entitled to the appointment of counsel when they cannot afford representation. Either the state public defender’s office represents the individual, or an attorney is appointed by the county. It is imperative that individuals facing some form of deprivation of their individual liberty and freedom, as in the aforementioned scenarios, be represented.

But, what happens in other types of civil matters, where there is no right to counsel? What happens when a person or family faces a legal issue that will affect their rights, health, safety, economic security, and overall well-being? All people, regardless of socioeconomic status, should have access to the justice system. While some individuals may be able to handle a matter pro se, meaningful legal assistance or full representation is often needed to assist individuals in asserting and defending their rights.

The Wisconsin Access to Justice Commission (WATJC) is one entity working toward “improving the administration of justice by supporting civil legal services to those who cannot afford them”. In 2011, Wisconsin became one of only four states nationally, and the only state in the Midwest, that failed to provide any state funding for civil legal services. The 2015-2017 budget appropriates $500,000 per year of the biennium for civil legal aid service to abuse victims. This sum is well below the other neighboring states. Minnesota, for example, appropriated over 12 million dollars per year of its biennium for civil legal services. According to WATJC, the average budget for indigent civil legal services in other Midwestern states is $7.6 million. While Wisconsin falls well below that average, it is at least an improvement that the current state budget appropriates some funding, albeit for a very specific class of litigants.

There are a variety of agencies that offer legal assistance and full-representation to indigent clients in civil matters. From my experience working at Centro Legal, I am aware that many more people were in need of assistance than that organization had the capacity to handle. While I cannot speak for other agencies, my best guess is that they also have more work than they can take on, and that as a result many people are turned away because there just isn’t the capacity to represent them. There are notable efforts to coordinate volunteer attorneys and to help people be matched with an attorney that would be willing to take on a case for a reduced rate. With low levels of funding from the state to support agencies already offering civil representation, the difference must be made up somehow. Whether it is volunteering to represent someone, participating as a volunteer at one of the several clinics offering brief legal advice, offering a reduced rate in certain circumstances, or offering support to practitioners that incorporate as a non-profit and offer reduced rates for indigent or modest means clients, all lawyers have a role to play in ensuring that access to justice and the legal system is not limited by one’s socioeconomic status. We all have a stake in improving access to civil legal service for people who cannot afford an attorney.

Any Chance of Protection?

Posted on Categories Public, Tort Law, Wisconsin Civil Litigation1 Comment on Any Chance of Protection?

I was inspired to write this post after a lovely conversation with my roommates (for those of you that might not know, by “roomies/roommates” I mean my parents #Living@Home) who were up north skiing over winter break. Essentially, my roomies called me with a very urgent question regarding the law. “Son, it appears they are having us sign a ‘Waiver and Release’ form that is really long, with lots of statements in capital letters that really don’t make any sense. Is there a statute on point that requires companies to use the word NEGLIGENCE in all capital letters over 30,000 times? What do we DO!?!?” asked my confused father. Fresh off my Professor Anzivino contracts exam, I knew exactly how to respond.

“Dad, you guys are in Wisconsin correct?”

“Yes, we are in Wisconsin.”

“Excellent. Dad, Mom, as an aspiring law student, and in order to adhere to the heightened Ethical Code that comes with being a lawyer, please understand I cannot provide any legal advice… but I think you should read the contract and ski away!” Continue reading “Any Chance of Protection?”

Electronic Filing Has Arrived in the Milwaukee County Circuit Courts

Posted on Categories Legal Practice, Public, Wisconsin Civil Litigation, Wisconsin Court SystemLeave a comment» on Electronic Filing Has Arrived in the Milwaukee County Circuit Courts

As of today, eFiling is now available in Milwaukee County for family and civil cases.  John Barrett, the Milwaukee County Clerk of Circuit Court, referred in this press release to eFiling’s “fast, secure filing” and “ease of use and cost efficiency”, among other benefits.  The Wisconsin Court System website also includes a demonstration of the process and tutorial.

A person wishing to use eFiling must register with the Consolidated Court Automation Programs (CCAP). The eFiling website may be used at any time, any day to file or access a document.

A Jewel in Our Midst

Posted on Categories Civil Procedure, Legal Education, Marquette Law School, Mediation, Milwaukee, Negotiation, Public, Wisconsin Civil LitigationLeave a comment» on A Jewel in Our Midst

Throughout the history of legal education, there has been a consistent call for greater levels of experiential learning and especially clinical education in the law school curriculum. This call has received renewed strength in the Carnegie Report released in 2007. It reminds us again of the importance of building skills for lawyering, for serving as counselors to those who seek our assistance.

Marquette University Law School, for over thirteen years, has been polishing a gem that provides our students with a rich opportunity to some of the very skills required to be an effective lawyer (you might remember the list from the first blog…communication, listening, writing, negotiation and time management, to list only the top five survey responses). This gem is the Small Claims Mediation Clinic.

The Small Claims Mediation Clinic is housed in the Milwaukee County Courthouse and provides pro se litigants an opportunity to access student-led mediation services in an effort to resolve the disputes themselves. This program was the brainchild of former Wisconsin Supreme Court Justice Janine Geske and I have had the honor and privilege to work with Janine at the Clinic for several years and have served as the faculty member for a number of semesters. Continue reading “A Jewel in Our Midst”

Change in Wisconsin Venue Law

Posted on Categories Civil Procedure, Public, Wisconsin Civil LitigationLeave a comment» on Change in Wisconsin Venue Law

Wisconsin Act 61 changed the law in Wisconsin regarding where a lawsuit is venued. Adjunct Professor Erin O’Connor recently wrote this article on the change in the law and its implications for Wisconsin litigation.

The new law affects both where a case may initially be venued, as well as where an appeal may be brought. Professor O’Connor notes in her article that as a general matter, “a plaintiff can file its action against the state in any county – including counties having no connection to the defendant, the plaintiff, or the cause of action.”

With regard to appeals, under the new law, a party seeking an appeal may not file the appeal in the same court of appeals district where the case was originally venued at the circuit court. However, the party may choose among the remaining three Wisconsin court of appeals districts.


Judge Sumi Does Her Job

Posted on Categories Judges & Judicial Process, Political Processes & Rhetoric, Wisconsin Civil Litigation, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme Court4 Comments on Judge Sumi Does Her Job

Judge Maryann Sumi issued the long anticipated opinion in Ozanne v. Fitzgerald yesterday, holding: 1) that the circuit courts have jurisdiction to hear cases alleging that a particular piece of legislation was not constitutionally enacted; 2) that the court’s jurisdiction includes challenges alleging noncompliance with Wisconsin’s Open Meetings Law; and that 3) the failure of the March 9, 2011 Joint Committee of Conference Meeting to comply with the Open Meetings Law rendered the legislative action taken at that meeting — 2011 Wisconsin Act 10 — void.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about. Continue reading “Judge Sumi Does Her Job”

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”

“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

Posted on Categories Constitutional Interpretation, Family Law, Federal Law & Legal System, U.S. Supreme Court, Wisconsin Civil Litigation, Wisconsin Court System, Wisconsin Law & Legal SystemLeave a comment» on “Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

On June 24th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here. Continue reading ““Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All”

How Toxic is Thomas?

Posted on Categories Constitutional Interpretation, Eastern District of Wisconsin, Wisconsin Civil Litigation, Wisconsin Supreme CourtLeave a comment» on How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version. Continue reading “How Toxic is Thomas?”

GFFD in Employment Contracts Comes to Wisconsin?

Posted on Categories Labor & Employment Law, Wisconsin Civil LitigationLeave a comment» on GFFD in Employment Contracts Comes to Wisconsin?

Wisconsin For those unfamiliar with employment law, it might surprise you to learn that in the United States most states do not recognize an implied covenant of good faith and fair dealing (GFFD) in employment contracts, even though such covenants are deemed to exist in commercial contracts under the UCC.

By my last count, only nine states have adopted GFFD in employment contracts. Though the type of GFFD implied in employment contracts varies, the most common form involves a situation where an employee’s justified expectations to pay or benefits are frustrated by an arbitrary employer action (like an out-of-the-blue firing).

Well, Wisconsin might be the tenth state to recognize such a GFFD in employment in the case of Phillips v. US Bank (Wisconsin Ct App 02/02/2010), though the Wisconsin Appellate Court was careful not to call it that. Continue reading “GFFD in Employment Contracts Comes to Wisconsin?”

Representation, Outcomes, and Fairness in Legal Proceedings

Posted on Categories Civil Rights, Human Rights, Legal Practice, Marquette Law School, Mediation, Milwaukee, Uncategorized, Wisconsin Civil Litigation, Wisconsin Law & Legal System5 Comments on Representation, Outcomes, and Fairness in Legal Proceedings

gideonAs my colleague Rebecca Blemberg recently blogged about, California has moved in the direction of recognizing a right to counsel for civil litigants with critical legal needs.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

Continue reading “Representation, Outcomes, and Fairness in Legal Proceedings”

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”

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