I wrote last week about the new Wisconsin law signed by the governor on December 7, 2011, that presumptively limits attorney fee recovery to an arbitrary three times the amount of damages awarded. And I noted that this law would have unintended consequences for Wisconsin attorneys, clients, and businesses. It looks like the State Bar agrees.
The Wisconsin Legislature recently passed a new statute defining “reasonable” attorney fees. Effective on December 21, 2011, 2011 Wisconsin Act 92 lists categories to be taken into consideration in determining the reasonableness of attorney fees:
(a) The time and labor required by the attorney.
(b) The novelty and difficulty of the questions involved in the action.
(c) The skill requisite to perform the legal service properly.
(d) The likelihood that the acceptance of the particular case precluded other employment by the attorney.
(e) The fee customarily charged in the locality for similar legal services.
(f) The amount of damages involved in the action.
(g) The results obtained in the action.
(h) The time limitations imposed by the client or by the circumstances of the action.
(i) The nature and length of the attorney’s professional relationship with his or her client.
(j) The experience, reputation, and ability of the attorney.
(k) Whether the fee is fixed or contingent.
(L) The complexity of the case.
(m) Awards of costs and fees in similar cases.
(n) The legitimacy or strength of any defenses or affirmative defenses asserted in the action.
In addition, the statute places a presumptive (and arbitrary) limit of three times the amount of compensatory damages awarded. Because this is a new statute, there are now issues that will be litigated. For instance, does the presumptive limit apply to reasonable attorney fees contractually recoverable in the completely successful defense of an action?
The statute, I think, is a continuation of an effort to make Wisconsin more business-friendly. While I favor the goal, I think that some of the measures taken to try to reach that goal (at least as far as litigation-related topics go) have been under-considered and appear to arise from common, and sometimes incorrect, conceptions about the legal system from those who don’t work in the legal system. I don’t think this statute is going to make much difference at all, other than to give Wisconsin attorneys a statute to cite instead of case law. Time will tell, though.
Under 2011 Wisconsin Act 69, which I wrote about in a previous post, judgment interest in Wisconsin will drop dramatically. Effective as of December 2, 2011, the interest rate on civil judgments is no longer 12%, but rather 1% over the prime rate, adjusted periodically. As if there weren’t enough traps for Wisconsin lawyers out there, now there’s a new math requirement.
It appears that the new requirements affect judgments entered on or after December 2, 2011, rather than applying only to suits filed after the effective date. I don’t know about you, but I’m going to have to get a new calculator.
To add to the downside, there will be a much reduced incentive to pay judgments quickly. I’m guessing the intent was to help businesses out, but what about the businesses that own judgments that aren’t being paid for years at a time? As you Wisconsin attorneys know, a judgment is just a piece of paper, and collection is the real issue. With this incentive gone, I’m expecting collections to be much more difficult in the future.
Photo courtesy purpleslog via this license.
As reported by the Wisconsin State Bar’s Joe Forward, both houses of the Wisconsin Legislature have passed a bill lowering the interest rate on civil money judgments. Currently at 12% annual interest, the legislation would drop the rate to 1% over the prime rate in effect on January 1 and June 30 of each year. As if figuring out the interest due on judgments wasn’t complicated enough for lawyers, many of whom got into this profession to avoid math altogether. The bill is headed to Governor Scott Walker for his consideration.
The bill was a Republican measure, and passed along party lines. Read Forward’s article for more information on the opposing points of view.
As of February 1, 2011, 2011 Wisconsin Act 2 changed the landscape of business litigation in a number of areas. I wrote recently about the altered expert evidence rule, but other changes are of interest, as well. New Wis. Stats. §895.043(6) limits the amount of punitive damages that can be awarded.
Before Governor Scott Walker signed the bill into law, Wisconsin did not statutorily limit punitive damages awards. Now, for all cases filed after February 1, 2011, punitive damages cannot exceed twice the amount of compensatory damages recovered by the plaintiff, or $200,000, whichever is greater.
Unchanged is the basis for awarding punitive damages: a plaintiff must still show that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the plaintiff’s rights.
2011 Wisconsin Act 2, which became effective on February 1, 2011, brings (among other things) the Daubert reliability standard to Wisconsin’s consideration of expert witness evidence, replacing the Walstad relevancy rule. For civil actions, the new standard will be applicable to cases filed on or after the effective date (for criminal cases, applicability is not without question — see John DiMotto’s article in Bench and Bar Experiences). That’s too bad, because there are a couple of cases I’m working on now that have very questionable expert witnesses who might not survive a Daubert inquiry. But I digress.
New Wis. Stat. 907.02 reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
While the rules are a little tighter under Daubert, I don’t expect that most expert evidence will be impacted. The change to the language of the statute isn’t drastic. More importantly, judges have been doing things a certain way for many years, so it’s reasonable to expect that change will come slowly.
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.
In what is one of the least surprising revelations of this relatively new year,
Rep. Marlin Schneider, D-Wisconsin Rapids, admitted to The Associated Press that he overstated his case when he said in a public hearing and a memo to lawmakers that he’s received hundreds of letters of complaint about an online court database.
Instead, as Scott Bauer points out in his article found on the Wisconsin Law Journal,
Turns out, he was only able to produce letters from 22 people who contacted his office since 2006 to complain that records on the database have hurt them even though their charges have been dismissed.
He had letters from 17 others who actually were convicted, but complained about the records being viewable to the public. Another 20 were commenting in general on his attempts to limit access.
Note that those are only people who thought that the sole basis of their mistreatment was the CCAP record of their own trail through our judicial system. You wonder how many would be able to muster any kind of proof supporting their claim. And even if all 22 could, does that mean that we need a blanket rule impacting all the people who use CCAP for legitimate, reasonable purposes? Or does it make more sense to deal with the outlyers as just that — aberrations in an otherwise decently functioning system?
This initiative, like many others that are based on relieving just about everyone from just about everything that in any way relates to personal responsibility, is based on rhetoric, born of anecdote, and supported by the unrealistic position that just because someone didn’t pay for the last five things they bought or apartments they rented doesn’t mean they won’t pay for this one. And, because the proponents are doing what they believe to be “right,” the ends often justify the means, and it doesn’t matter that the facts demonstrate that access to public court information (in this case, but insert whatever the issue may be — income requirements to show you can afford a loan you want, background check to determine if you’ve been convicted of a violent or sex-related crime before becoming employed by a school, etc) works for nearly everyone nearly all the time.
Sometimes, in our rush to right each and every one of life’s unjust bumps, we forget that not every seemingly good idea needs to become a law. All this reminds me of a line from one of my favorite movies: “Doin’ good ain’t got no end.” Too often, it’s also short on common sense.
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.
S.B.20, passed by the Wisconsin legislature in Madison and sent to Governor Doyle for his signature, ratchets up the cost of discrimination on employers. Under current statutes, an employer can be required to reinstate a discriminated-against employee, pay back pay, and cover the successful claimant’s attorney’s fees.
The new bill would, in addition, permit the employee or the Department of Workforce to sue in circuit court to recover compensatory and punitive damages caused by the discrimination. And as the cherry on top, an employer found liable would pay an additional 10% surcharge, based on the total amount of compensatory and punitive damages, into the circuit court. According to the bill, this additional penalty would be used to further enforce the so-called Fair Employment Law.
As of this writing, Doyle hadn’t signed the bill yet, nor had his office indicated his intent. Honestly, though, does anyone really think that Doyle won’t sign this?
