The Fifth Amendment, Damage Mitigation and WOCCA: A Busy Court of Appeals
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
