Wisconsin Business and Commercial Litigation

The Wisconsin courts of appeal recently instituted a new electronic filing requirement, and I just electronically filed my first appellate brief.  The electronic filing process, while not difficult, seems to be totally superfluous, since parties are still required to file paper copies of briefs, governed by some very detailed rules.  For instance, let’s just address the cover pages, leaving alone all other specifics like font, page length, justification, etc.: 

The covers of the appellant’s brief shall be blue; the respondent’s, red; a combined respondent−cross−appellant’s, red with a blue divider page; a combined reply−cross−respondent’s, gray with a red divider page; a guardian ad litem’s, yellow; a person other than a party, green; the reply brief, gray; and the appendix, if separately printed, white.

Moreover, when filing in the supreme court, an appellant must file 22 copies of its brief, and serve three on each party, while in the court of appeals, an appellant files 10 copies, and serves three on each party. 

I’m a big fan of the federal district court model, in action for many years now.  That system has the state process completely beat.  It’s entirely paperless and does not require any messing around with colored covers, inserts, multiple copies and other details that are traps for the unwary or the inexperienced.  I had hoped that the state would move directly to such a process, since most lawyers are already familiar with the federal system.

While this new state electronic filing requirement may be a step to a completely paperless system, right now it’s just an extra hole to fall into.

Stack of paper photo courtesy iLoveButter flickr gallery under this creative commons license.

The Milwaukee Business Journal reports that a severe outbreak of swine flu could “devastate businesses”  already stretched thin on manpower by staff cuts resulting from the economic downturn.  The swine flu made quite a stir a few months ago with every TV news station and many written outlets (the Business Journal was one exception) competing to provide the most over-the-top, hysterical reporting on what a worldwide pandemic this would surely turn out to be.  Now that it’s back and actually making inroads, the reporting is relatively quiet.

Ironic that the same update of the Business Journal reports that Milwaukee County, like many other governmental entities (including the State of Wisconsin), has turned to furlough days to address budget concerns (this only avoids a tough decision for the time being, but that’s another story for another blog). 

Used under a Creative Commons License from agoode's Flickr gallery

For-profit business, which must operate efficiently to survive, can’t afford to lose much of their workforce for a couple of weeks without severely hampering productivity.  Governmental entities, apparently, have so much extra staffing that the government services can proceed uninterrupted even without a substantial portion of the workforce for a substantial period of time.

The Milwaukee Business Journal reports that a recent study ranks Wisconsin 42d among the 50 states in its tax treatment of businesses.  Consider, too, the ever-increasing burden of fees imposed for “services” that used to be financed by taxes.  It would be interesting to see a study of the combined impact of taxes and fees on business.

City adding machine photo courtesy flickr user Seattle Municipal Archive under this creative commons license.

Used under a Creative Commons License from Jason Gulledge's Flickr collection

Let’s hear it for Dave Ziemer’s discussion of the ridiculously over-protective nature of our state government (although this applies with equal force to federal, municipal, and every other layer).  Most people have no idea of just how much government intertwines itself in everything we do every day, yet in the vast majority of instances, provides no discernible added value.  Have a look at what our state government protected Dave Ziemer (and all of us) from:

Wis. Admin. Code ATCP 91.03(1)(a) says all fresh fruits and vegetables shall be sold at retail only by weight, subject to a few exceptions.

Subsection (1)(b) provides exceptions for: “artichokes, avocadoes, cantaloupes, cauliflower, celery, corn on the cob, coconuts, cucumbers, eggplant, garlic, grapefruit, head lettuce, kiwanos, kiwi fruit, lemons, limes, loquats, mangoes, melons (whole), nectarines, oranges, papayas, peppers, persimmons, pineapples, pomegranates, prickly pear, pumpkins, quince, squash, star fruit, tangerines and ugli fruit.”

But bananas, as you can see, are not on the list. There are other apparently arbitrary distinctions: lettuce can be bought by the head, but not cabbage; nectarines can be sold per piece, but not apricots.

Before anyone goes and calls the cops on their local cafe, let me explain something. I spoke with a very helpful young woman at the DATCP, who told me that legislation is pending to permit the sale of bananas, and some other fruits and vegetables, by the piece as well as by the pound. She expects the legislation to be in place by the first of the year, and in the interim, the law is not being enforced with respect to the affected fruits.

Most interesting to me is the too-typical idea that, instead of removing or deleting legislation that doesn’t make sense or is unneeded, another regulation should be passed to address the issue caused by the first regulation.

The free and unfettered access enjoyed to the public records available on Wisconsin Circuit Court Access may soon be limited, thanks to Wisconsin Assembly Bill 340.  Jack Zemlicka discusses the bill in an article from the Wisconsin Law Journal.  Apparently, the bill would require an access fee for most users, and would limit information available online.  There’s not an argument that the information isn’t public or that it shouldn’t be accessible, just, apparently, that it shouldn’t be so easily accessible.  The price tag for making the information more difficult to obtain:  $500,000.

When the whole world is heading the other direction, I wish it were more surprising that some in government want citizens to have less, rather than more, access to public records.

Read what Hinshaw & Culbertson LLP’s Steve Puiszis writes about the Seventh Circuit’s new electronic discovery pilot program.  As everyone’s aware, electronic discovery necessitated changes to procedural rules in courts across the country.  The Seventh Circuit’s program is road-testing approaches to the issue.  If you or someone you know is involved in a case that’s been selected to take part, have a look at Puiszis’s post.  It’ll be worth your time.

Used under a Creative Commons License from Peyman's Flickr gallery

In the Wisconsin Law Journal, Dave Ziemer writes an opinion piece about the proposed legislation that would prohibit insurance companies from using ZIP codes to set automobile insurance rates.  You can find more information at this site and in an article from the Wisconsin State Journal, which provides contact information.  While the discussion relates to personal auto insurance, this bill could impact on business insurance rates, as well.

There are all sorts of reasons to enter into, and continue with, litigation.  Not that anyone enjoys the process.  Much of the time, even plaintiffs feel as if they have been forced into it by the actions of others.  For many, however, business strategy demands certain litigation decisions and strategies.  This approach derives from a more complete view of the client and its goals.

For instance, certain insurance companies will take any case to trial that has a legitimate defense.  Likewise, many professionals choose to litigate rather than pay an early settlement demand.  The result for the plaintiff (and often, the defendant, as well) is the same, but the motivation, and business reasons for the decisions, are different. 

The insurance company develops a reputation as a tough defendant, and in the process hopes to obtain more favorable offers of settlement from future plaintiffs.  The professional protects his or her reputation (and perhaps a license). 

Civil litigants, when considering entering into, defending, or negotiating to conclude litigation, should be motivated first by their business goals.  Litigation should be used as a tool to protect hard-won marketplace positions, or to obtain a competitive advantage.  It is not an end in itself, but rather part of a complete strategy for business success.