Wisconsin Business and Commercial Litigation

I’m working with Chris Schilder, litigation counsel for Safway Services, on a presentation for the upcoming conference of the Wisconsin Chapter of the Association of Corporate Counsel.  Chris and I will talk about managing contract litigation, identifying for you three recurring traps and how to avoid them, or better yet, turn them to your advantage.  Chris works on contract litigation every day, all day.  He knows his stuff.

I know I wouldn’t miss this conference.  The event happens on May 20-21 at the Osthoff Resort in Elkhart Lake, Wisconsin.  Corporation counsel from around the state get together to discuss issues of common concern, share war stories, get some inexpensive CLE credits, and just hang out for a couple of days.

You can register here.  There’s less than a month to go, and Carrie Booher, director of WisACCA, tells me that registrations are coming in quickly.  It should be a great program — I encourage you to come out and take part.

WisACCA logo courtesy WisACCA.

In Loppnow v. Bielik, the court of appeals reversed the decision of Waukesha County Circuit Court Judge Michael Bohren that the plaintiff hadn’t exercised reasonable diligence in attempting to personally serve the defendant before resorting to service by publication.  The court of appeals explained its reasoning:

The guiding principle in these cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead–or in other words, stop short “of the place where if [the diligence] were continued might reasonably be expected to uncover an address of the person on whom service is sought.” Haselow, 212 Wis. 2d at 589. In West, the plaintiff stopped short of pursuing information he had about the defendant’s whereabouts, and also stopped short of making an inquiry to either his relatives or defendant’s relatives who were likely to know the defendant’s whereabouts. West, 82 Wis. 2d at 164-65. In Haselow, the plaintiff stopped short of attempting to locate the defendant in Hawaii despite information from the defendant’s father that he was living there. Here, there is simply no evidence that Loppnow “stopped short” in his pursuit of Bielik’s address, in Orlando or elsewhere.

If you’re like me, you’re wondering what good this definition of “reasonable diligence” is.  How can you ever tell when you’re at a place where if diligence were continued, you might find the address of the person you’re looking for?  Don’t you only know that if you’ve taken the step and it either succeeds or it doesn’t?  And if it doesn’t, how can you know whether the next thing you try won’t do the trick?   The next private investigator you hire may be the one who gets the information.

This isn’t the first time a court has given us the “I’ll know it when I see it” standard, though.  I think the court in this case was influenced by defense counsel’s close personal relationship with his client’s family and his related refusal to provide any information permitting service.

The court’s analysis (although short) of the adequacy of service by publication is also instructive.  While it doesn’t provide a wealth of guidance, this case should figure prominently in your next sufficiency-of-service argument.

As it turns out, we all get graded in one way or another.  For attorneys, it’s judges, juries and clients.  For judges, it was the appellate court and for some, the voters.  Now, some attorneys are rating judges.  Have a look at The Robing Room, where “the judges are judged.”  There’s a link for state court judges on the lower left, including Wisconsin.  One of our own, E.D.Wisconsin judge Griesbach, is currently rated in the top ten district court judges in the country.

On May 18, 2009, I wrote about Racine County v. Oracular, and I said that it didn’t appear that the case had been appealed.  I was wrong.  The Supreme Court just released its decision on April 2, 2010, in which it confirmed the court of appeal’s ruling that the issues in the case did not require expert witness testimony to assist the jury.  The court of appeals reversed Racine County Judge Steve Simanek’s dismissal of Racine County’s case because of its failure name an expert.

Contrary to the circuit court’s conclusion, the court of appeals held that for purposes of this case, computer consultants are not “professionals” and thereby not subject to professional standards of care.  Instead, the court concluded that the Agreement between Racine County and Oracular was a simple contract for services.

The Supreme Court, through Justice Ziegler, agreed:

In this case, in order to survive summary judgment, Racine County was not required to name an expert witness.  As a preliminary point, Racine County alleged breach of contract, not negligence.  There is no allegation that Oracular’s performance failed to meet the standards of the computer consulting industry——whatever those may or may not be.  Accordingly, the issue is not whether Racine County is required to present expert testimony in order to demonstrate that Oracular’s performance fell below the industry standard of care. Instead, the issue is whether in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties’ Agreement.

Two things cause a little concern.  First, the Supreme Court claims that it decided the appeal on “different grounds” than the appellate court.  The grounds, if different, appear only  minimally so.  Second, the Supreme Court went to great pains to repeatedly point out that Racine County did not have to name an expert witness to “survive summary judgment.”  This begs the question whether Racine County is required to name an expert at some other point in the process. 

For practical purposes, this case falls into the category of one to cite when your opponent takes a shot at your case because you didn’t name an expert in discovery. 

Permission to speak freely image courtesy jurvetson flickr gallery via this creative commons license.

A new bill in the Wisconsin Legislature would make employers liable for “workplace bullying.”  Jack Zemlicka of the Wisconsin Law Journal describes the legislation:

Currently, workers’ compensation is typically the exclusive remedy for an employee with a claim against an employer. But Assembly Bill 894 provides that an employee can sue over an abusive work environment and potentially recover medical expenses, back pay, front pay, compensation for emotional distress, punitive damages and attorney fees.

This bill even has its own website, which describes the bill as part of a “movement.”  Thankfully, none of the states to which the “movement” has spread have gone so far as to accept the proposal.

Since 2003, 17 states have introduced similar proposals, but none have passed, according to the office of Rep. Kelda Roys, a sponsor of the Wisconsin legislation.

If you’re an employer, keep your eyes on this one.  This could be full-time employment for plaintiff and defense lawyers alike.

Argument image courtesy Francis Carnauba’s flickr gallery through this creative commons license.

As I’ve mentioned in previous posts, I’m going to be attending the spring conference of the Wisconsin Chapter of the Association of Corprorate Counsel, which happens on May 20-21 in Elkhart Lake (more information here).  Chris Schilder, litigation counsel for SafWay Services, and I will be talking with the members about managing contract disputes, and specifically about three areas that apply uniquely to in-house counsel.

Our discussion, one of many presentations as you can see from the materials, is going to touch mainly on three areas:  managing ongoing business relationships while in a dispute, what problems can arise from scope of work descriptions, and the impact of indemnification provisions and potential funding for litigation.  Chris and I have been working together on this for a while now and look forward to providing some insight and assistance to WisACCA members and anyone else who attends.