Wisconsin Business and Commercial Litigation

In what I would consider an unexpected decision, the court of appeals has expanded the universe of awardable costs to recognize internal copy costs.  Wis. Stat. 814.04(2) provides for the recovery of

amounts actually paid out for certified and other copies of papers and records in any public office; postage, photocopying, telephoning, electronic communications, facsimile transmissions, and express or overnight delivery.

Most parties opposing the award of internal copying argue (as did the plaintiff in this case), that internal copy costs are not expenses that are “actually paid out.”  The court here disagreed:

First, the statute does not say that photocopy costs must be paid out to a third party before they can be claimed by a defendant. Second, the phrase ‘”actually paid out” modifies the amounts paid “for certified and other copies of papers and records in any public office.”  The disputed costs here do not involve certified or other papers and records in a public office.

So, from now on, include internal copy expenses in all your cost affidavits.

In a single appeal from a Racine County case, a busy court of appeals addressed three issues of first impression.   The first issue from S.C. Johnson v. Morris revolved around the impact of invoking Fifth Amendment rights in civil discovery proceedings:

The first issue concerns a party’s continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party’s theory of the case has been established.  Federal case law instructs that this decision requires the trial court to balance the prejudice to both parties.  And one of the most important factors in the balancing test is the timing of the request to withdraw because invoking during discovery and then waiting until trial to withdraw runs the danger of undermining the purpose of discovery.  We find this authority persuasive and adopt it in Wisconsin. 

Second, the court addressed the duty to mitigate in intentional tort cases:

We again adopt persuasive federal case law which explains that expanding the duty to mitigate in such a way as to place a burden on the victim to investigate whether warning signals existed would allow tortfeasors to purposely exploit a victim’s weak internal investigation mechanism and then use it as an affirmative defense at trial.  We conclude that adopting Russell and Buske’s position would place too high a burden on victims.  Thus, as the trial court ruled, actual knowledge is required for the duty of mitigation to apply.

Finally, the court analyzed the damages provision of WOCCA:

And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?  The answer is “yes” because that provision, like its federal counterpart, is a remedy to address the private economic injury aspect of the violation, not the penal, criminal feature.  Therefore, we again affirm the trial court, and thus uphold its doubling of the entire damage award.

Cases of this size ($147 million damages finding remitted to $101.9 million) make it worthwhile for parties to chase down and elaborate novel issues.

municipal court judges 2001 photo courtesy Seattle Municipal Archives flickr gallery under this creative commons license

Jack Zemlicka’s recent article on internet research of potential or actual jurors raises some good issues.  The article primarily discusses investigating potential jurors in the days leading up to jury selection (kinda like Gene Hackman in the Runaway Jury).  As the article points out, however, there are many courts (Milwaukee County, for one) where the juror list is not available until a few minutes before the jurors walk into the court room.  Unless a client is willing to pay for a LOT of support, the time frames make it impossible to glean useful information in such short order.  As a result, most Milwaukee County juries are picked the old-fashioned way — intuition, experience, and let’s face it, some luck.

However, that doesn’t mean that no research can or should be done once the jury has been selected.  In the last trial I had in Milwaukee, we learned a great deal about our jury after the close of business on the first day.  I believe that it helped to better craft our case, which eventually prevailed.  It’s easy to get caught up in the science of lawyering — the details of preparing for the next witness, the arguments over evidence, preserving objections and the record for appeal, or preparation of exhibits and demonstrative evidence.  We can sometimes overlook that a trial is mostly about persuading the people who sit in the jury box that we are fair, trustworthy, and reasonable.  The more we know about them, the more chance we have to succeed.

Jury dootie begins photo courtesy kelly cree under this creative commons license.