Wisconsin Business and Commercial Litigation

Congrats to my colleagues Tom Schrimpf and Melissa Lauritch, who wrote the amicus curae brief on behalf of the Wisconsin Insurance Alliance in Roehl Transport v. Liberty Mutual Ins. Co., a recently published Wisconsin Supreme Court decision on insurance bad faith.  Tom got in on another one, too:  Johnson Controls v. London Market, a duty to defend case where he wrote the amicus curae brief on behalf of the Complex Insurance Claims Litigation Association, American Insurance Association, and Wisconsin Insurance Alliance.  As you might have guessed, Tom Schrimpf is one of Wisconsin’s premier insurance attorneys, and deservedly so.

As I mentioned a few weeks ago, I had the privilege of speaking at the 2010 conference of the Wisconsin Chapter of the Association of Corporate Counsel.  The presentation Chris Schilder (of Safway Services LLC) and I did on contract litigation issues was the most well-attended of the conference (to be fair, we were programmed against a tax presentation, so it’s possible that it wasn’t my scholarly nature and irrepressible personality that brought people in).  The presentation came off without a hitch, as did the rest of the conference.

Carrie Booher, the new executive director of WisACCA, put together a great meeting, and made it look easy.  I’ve done a few of them in a previous life, and her organization was excellent.  Thanks also to Tony Karabon, counsel for the Boucher Group, and my contact on the Board of Directors, for his assistance in making the conference run smoothly (at least for me).

If you haven’t attended this conference, I’d recommend it.   The topics covered were geared specifically toward inside counsel.  If nothing else, it’s a great place to talk with other inside counsel about common issues and concerns.  I hope everyone enjoyed it as much as I did, and I’m looking forward to next year.

In Poston v. Barr, the District 1 Court of Appeals reviews a Milwaukee County Circuit Court decision regarding the foundation for and admissability of opinion evidence by lay witnesses.  In this invasion of privacy suit, the Barrs recorded the Postons making noise and raising a ruckus (as my grandmother used to say).  The recordings were eventually used by the municipal police department to cited to Postons for disorderly conduct. 

Not to be outdone, the Postons sued the Barrs, claiming that the recording invaded the Poston’s privacy in violation of Wis. Stat. 995.50(2).  That statute prohibits:

(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

The Barrs sought summary judgment, arguing that because they placed the recorder on ledge of their bedroom window, there was no evidence that they had violated the statute.  The court denied the motion:

I do think that a reasonable jury could conclude, based on this summary judgment record, that in fact the manner in which … these recordings were secured was something other than simply placing a recorder that only picked up sounds emanating from and into the home of the [Burns-Barrs].

Circumstantially, given what’s on those tapes and given the logistics that are involved here, given what is asserted to be the mechanism by which the sounds were recorded, I think a jury may ultimately conclude, certainly could ultimately conclude that something other than that recorder was used, and by inference, that some type of sophisticated electronic recording equipment was used, which would lead to the conclusion that they are in fact electronically invading the residence of the [Postons] and that that’s an actionable trespass, it’s … a highly offensive intrusion into their home, et cetera, and I think that resolving that claim by summary judgment is inappropriate for that reason.

At trial, the Postons argued that because of the content of the tapes, it stood to reason that the Barrs had used a sophisticated listening device. 

In closing, the Postons’ trial counsel told the jury that “my clients [the Postons] … don’t believe that [the recording] was done … with a digital recorder placed in the window sill.”  Trial counsel asked, “Do you want us honestly to believe that they were able to make recordings of that quality with just that Olympus recorder?”  Trial counsel also speculated that the Burns-Barrs might have used a specialized microphone to make the recordings, stating:

Now, there are microphones that allow you to direct a microphone and I’m not an expert on all that kind of stuff, but I’ve seen them. In the NFL they have specialized microphones…. I guess [football teams] use that, steal defense signals of other teams or something like that. But you know, I don’t know what there might have been…. I have no way of knowing. There’s no possible way for us to know because we don’t have the equipment. We don’t know what equipment they have.

No expert witness testified regarding the necessity of “more sophisticated” equipment.  Only the plaintiffs provided evidence that they thought the recordings could not have been made from the window ledge.  The jury agreed, finding for the Postons.

The Court of Appeals reversed:

Here, the Postons’ case was premised on their “belief” that the fifty-dollar Olympus recorder was not the one used to record the Postons’ behavior in relation to the Burns-Barrs. There is not a scintilla of evidence in the record to demonstrate any knowledge whatsoever by the Postons as to the technical capacity of the disputed recorder, or any other electronic recorder. The Postons offered no personal experience, no academic or technical training and no competent expert testimony to support their “belief” that something more sophisticated must have been used. Moreover, both of the Postons acknowledged at trial that they had no affirmative evidence that another recorder had been used. Nonetheless, at the summary judgment argument, the trial court accepted the Postons’ argument that a jury could use its “common sense” to determine the technical capacity of the recorder in evidence and the Postons were permitted to offer their lay opinions that another recorder had to have been used. This was error.

Lay witnesses are often called upon to provide opinion testimony.  That testimony should be carefully measured against the bounds set by the courts.

Tape recorder courtesy Jen SFO-BCN’s flickr gallery via this creative commons license.

Sorry for the sudden rash of non-postings.  I’ve been in trial for just over a week now, and it will continue until about March 26.  As a result, I’ve had no time to spend on preparing anything for you.  When it’s over, I’ll be back and writing again.

Congratulations to my colleague Jeff Fertl who recently prevailed (July 17, 2009) on questions certified from the Seventh Circuit to the Wisconsin Supreme Court on Lemon Law issues.  In Tammi v. Porsche Cars, the Supreme Court considered four certified questions and concluded:

When a consumer who is leasing a motor vehicle brings an action against the manufacturer of the vehicle pursuant to subsection (7) of Wis. Stat. § 218.0171, and then exercises his option to purchase the vehicle under the terms of the lease, the consumer is not entitled to damages for the price of his voluntary purchase because his purchase was not “caused” by any violation of the statute by the manufacturer. See Wis. Stat. § 218.0171(7).

The second and third questions were mooted by the answer to the first question.  As to the final question, the Supreme Court concluded:

The plain language of the statute makes clear that a consumer’s refund under Wis. Stat. § 218.0171(2)(b)2.b. or 3.a. is subject to a reasonable allowance for use. Because we read subsection (7) in conjunction with the rest of the statute, we conclude that the amount of “pecuniary loss” under Wis. Stat. § 218.0171(7) must incorporate a reasonable allowance for use before the pecuniary loss is doubled.

With the questions answered, the case has been remanded to the Seventh Circuit for further proceedings.

If you’re a lemon law practitioner, the analysis is interesting.  If you’re not, the background discussion of the lemon law and its history might still be interesting.  In either event, congratulations to Jeff and his client.