“Statute of Limitations” is a fancy word for deadline. It is the time limit on when you have to file a lawsuit following being harmed by another person’s conduct.  Here are some of Wisconsin’s more common statutes of limitations. There are more — I have a 600 page book of them!

contracts

6 years

defamation

2 years

fraud

6 years

injury to personal property

6 years

intentional torts

2 years

libel

2 years

medical malpractice actions

3 years from date of injury

medical malpractice action based on insertion of foreign object

1 year after discovery of object

minors

2 years after date of 18th birthday

negligence causing personal injury

3 years from date of discovery

open account for debt collection

6 years

oral agreements

6 years

personal injury

3 years

product liability

3 years

promissory notes

10 years

slander

2 years

written contract

6 years

wrongful death

3 years from date of death

A common misconception about the law is that it’s pretty simple. People think that when they have disputes, courts are there to hand down the fair and right answer. Unfortunately, that is far from the truth. Achieving a fair resolution in a legal battle is a lot more complicated than that. The reason brings me to the difference between procedure and substance.

All lawyers learn in law school the difference between procedural law and substantive law. Put simply, substantive law is about the substance of your case: the facts, the dispute, the “why” you believe you deserve to win. When most non-lawyers think about a legal case, they only think about the substance.

Procedural law, on the other hand, is what non-lawyers often call “technicalities”. Procedural law is the millions of rules that govern how a case can be presented to a court. Some of these rules are very important and make a lot of sense, others not so much. For example, one very important procedural rule is based on the 4th Amendment of the United States Constitution. That rule says that if evidence against you was gathered illegally by the police, then that evidence cannot be used at trial to prove your guilt. When you hear in the newspaper that a “criminal” got off on a “technicality”, very often that technicality is the most important legal document in the United States.

On the other end of the scale, there are procedural rules that seem patently unfair and counterintuitive. For example, if you are injured by the action of a government entity, in most cases, you must file a document called a Notice of Claim with that entity within 120 days of the date of your injury. If you don’t make that deadline, and if your Notice of Claim document itself doesn’t comply with the myriad of additional rules governing those claims, you lose your right to sue entirely. All too often, people are injured by the negligence of a government agency, but don’t realize that they have a very short amount of time in which to file their claim. Imagine if you were seriously injured due to government negligence and were hospitalized. You could easily spend weeks and months recuperating, healing, dealing with work loss, figuring out how to manage your life while incapacitated, and so on. Thinking about suing the government is not the top priority on your list. By the time you do think about it, you have probably missed your chance. That’s an example of a procedural rule that seems to serve no real purpose other than to cheat you, a citizen, out of your right to sue the people who make the rules.

Unfortunately, there are a lot of procedural rules which can result in your case being thrown out, no matter how good the substance of your case actually is. Successfully winning a court case is kind of like trying to walk across a balance beam with American Gladiators swinging at you to knock you off. It really doesn’t matter how good your case is if you get slapped down by a procedural rule. Dealing with procedure is an important reason why a lot of people decide to hire a lawyer. So if you do decide to go it alone, be very careful about making sure you understand all of the rules that you have to follow to get your case to a successful conclusion.

Chris

Okay, so that’s a common question, and a tough one to answer. If you ask a lawyer at the beginning of a case how much it will cost, he will hem and haw and talk and theorize, but usually he won’t answer the question directly. People sometimes think lawyers are being evasive, but the truth is they just don’t know the answer. Trying to put a price tag on a legal case is like trying to predict the weather. You can guesstimate, but you just can’t predict everything the other side in a case is going to do, and when the other side fights more, it costs more.

Putting a price tag on a legal case is like asking “How much does a car cost?” Well, it depends. What kind of car? New or Used? Basic transportation or status symbol? Environmentally friendly or sporty? Utility or family? And on and on.

The reality is you can spend $500 on a car, and you can spend $500,000 on a car. How much car you get depends on what you want and what you need and what you can afford. You know that you get what you pay for, so you spend more even though that $500 clunker turns over. And, you’re financially responsible, so you don’t go out and buy a Beemer when a Ford or a Honda will do just fine.

It is the same with legal services. How much it costs depends on the case, depends on what you want to accomplish, and depends on how extravagantly you want it done. You don’t want to hire a bargain basement lawyer anymore than you want to buy a too-cheap car. It’s just gonna let you down. And you don’t need to hire a high end lawyer who will spend a ton of your money to accomplish the same thing as a good, reasonably priced lawyer can. What you have to do is first find a good lawyer who you feel will get the job done for you, and then work out a price. It may be that you accidentally walked into a BMW dealership when you were looking for a Toyota, or stumbled onto a used car lot when you really want new. You may not find the right lawyer at the right price on the first try. And you may find that you still can’t get a straight answer on what the case will cost. Lawyers don’t like guesswork, and some of them just refuse to try.

At BadgerLawyer, we believe in giving a customer a price tag up front. Once we evaluate your case and your goals, we will be glad to give you a quote on a one time, discounted up front payment that will carry you through the whole case. That gives you the peace of mind knowing that the business end of the arrangement is taken care of, so all you have to do is sit back and let us take care of the law for you.

Chris

And no, trial skills isn’t number one.

Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.

Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.

Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.

Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.

Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.

Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.

No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.

Let me know what you think. What skills do you think a good trial lawyer needs to have?

Here is a reprint from my recent article in La Crosse Magazine.

One thing I’ve noticed in recent years is that the law has undergone an enormous, but unnoticed, change. When I was a kid, a lawyer was somebody you hoped you’d never need, and you probably wouldn’t. Lawyers lived in high rise offices and “handled” “situations” for rich clients. The only time we common folk might need to visit a lawyer would be to see the local guy about a will.
My how that has changed. The skyrocketing rise in divorce rates has driven more than half of everyone who gets married into a long-term, expensive relationship with a litigation attorney. Decades of “toughness” on crime has lead to the criminalization of conduct that used to be legal, and now hardly a family hasn’t had a brush with the law. The growth in home-based and small businesses has led to literally millions of Mom & Pop LLCs that have a need for legal counsel, whether it’s just to make sure the papers are in order, or to defend the lawsuit if they aren’t.

Being a lawyer nowadays is a lot more like being a doctor or a dentist. Pretty much everybody is going to need a lawyer in a significant and ongoing way some time, probably several times, in his or her life. Given this fundamental shift in who needs legal services, you might think that law firms have drastically switched their approaches to how legal services are provided.

You’d be wrong.

If there’s one thing the law is, it’s traditional. To give you an idea, community property law – the law that divides assets in divorce – was invented by the Visigoths. For those who missed that history lesson, they’re the ones who brought Ancient Rome to its knees. So, change happens slowly.

Why? Lot’s of reasons. Lawyer regulations discourage change – we couldn’t take credit cards for most services two years ago. Lawyers by nature are a conservative lot – we’re afraid you won’t come to us if we don’t have expensive, traditional offices. Lawyers aren’t risk takers – it’s our job to worry about what would happen if everything went wrong, and that gets to you after awhile. Lawyers just don’t do change – our whole system is based on the law of stare decisis, legalese for “if it ain’t broke.”

But, the world is changing, and somebody has to be the first to jump. There ought to be ways to offer legal services with fee structures more friendly to the everyday person. If you, the prospective client, can accept a non-traditional (read: cheaper) office, the savings can be passed along. If lawyers could find a way to do what doctors already do – charge for specific services (e.g., an x-ray, a strep test) – instead of signing on for the whole case or not at all, you could buy only the legal services you needed.

In fairness, law is different from medicine or other professions. The law can ruin lives, like illness, but the law will let you represent yourself – try asking a surgeon to pass the scalpel. The law rarely offers a clear answer – “gray area” is our favorite word. It makes sense to have a lawyer for the whole case, most of the time, but it also makes sense, to me at least, to have a lawyer for just part of your case if that’s all you can afford. Isn’t some better than none? I don’t pretend to have all the answers, but I think we should start the discussion. Please join me and weigh in with your thoughts.

At BadgerLawyer, we’re all about empowerment. Making available to you information about the law that you can use to help yourself in the event you have to go it alone. That does not mean we advocate representing yourself. Far from it. The information on this website is only a tiny fraction of what a good lawyer knows, and your skill in the courtroom, no insult intended, isn’t close to that of an experienced trial attorney.

But doing your own divorce is easy, right? You just go to court, file some forms, fill out financial statements, and then four months later voila, you’re divorced. Why pay someone to do that? Well, kind of the same reason you pay someone to cut your hair. Sure, you can do it yourself (the Badger confesses he cut his own hair frequently in middle school to irritate his mother). And yep, it’s going to look terrible. But it will be out of your eyes, off your neck, and over your ears. Functional, but don’t go on any job interviews. It’s the same with DIY law, except that given a little time, hair grows back. Mistakes made in court — and there’s lots of room for error — often can’t be fixed. Not to mention that bad court rulings tend to hurt a lot more than a bad haircut.

So here are a couple specific, good reasons to hire an attorney to help with your divorce. What’s going to surprise you is a good divorce lawyer can pay for himself.

Ongoing Financial Obligations
In all likelihood there will be continuing financial obligations between you and your spouse after the divorce, whether in the form or child support or spousal maintenance. You will either be receiving payments or paying them. The decision about who, and how much, will be decided by a judge. The judge may be fair, but he is not going to research and investigate your case for you. The decision is really going to be made based on what is presented to the court and how the case is argued.

You are up against your ex. Someone who obviously does not have your best interests at heart anymore. Someone who may be thinking very selfish thoughts about the money divisions right about now.

You don’t know the law. You don’t know everything you are entitled to. You don’t know all the things that might be exceptions to your obligations. The chances of you not getting the best result for you are pretty significant. If your ex hires a lawyer, the chances are close to 100%.

If you hire a lawyer, you get the best result possible for you and your children. Think of it this way. If a lawyer gets you even $100 per month better result, that extra cash is going to pay for the lawyer within a few short years. And that’s just $100.

The Wise Man Builds His House on a Rock
Not all court orders can be changed. Those that can be changed sometimes have long waiting periods before changes can be made. That the law. There’s also reality. Judges are human, and once they have reviewed a case and rendered a decision, they aren’t going to want to revisit it. They are trained legal specialists with confidence in their ability. The very first thing they will think is “If I made the right decision three months ago, why would I make a different decision now?”

What I’m getting it, is once an order is issued, it becomes the king of the hill, and if you want it changed, you have to come up with a pretty good reason for changing it.

The DIY problem is that you aren’t trained to think about all the little legal issues that could come up later, and you may agree to something now that sounds fine, only to realize that you signed a custody sharing agreement that has the kids with your ex for your mom’s next four birthdays, and she’s not happy with you. Or that you need to change jobs but your support payments have you so cash strapped you can’t get on with your life. Or your ex is getting remarried and the new spouse wants to go to a different church, and that isn’t mentioned in the decree.

If you do it yourself, you are going to end up back in court more often, fighting more, and get less of what you want. It may cost more up front to hire a lawyer, but it will save you money, headaches and time in the long run.

Until recently, when a home seller lied about or failed to disclose something critically wrong with the home you were buying, the go-to law suit was for misrepresentation. In a common sense way, that just seems right. After all, how else would you describe the seller except to say that he misrepresented the condition of the home? I mean, without making the kids cover their ears.

The Wisconsin Supreme Court recently ruled that something called the economic loss doctrine prevents lawsuits for misrepresentation in real estate sales. It’s not exciting stuff, but let me see if I can sum it up the court’s ruling. Basically the ELD (that’s the economic loss doctrine) says that where there’s a deal based on contract, tort-based lawsuits are not permitted for recovery of purely monetary loss. Torts are your standard personal injury type suits. Misrepresentation is a tort.

In the world of lawsuits, tort-based suits and contract-based suits are the two big players, rivals in some ways. The ELD protects contract law’s turf by saying look, if there’s a contract and one side doesn’t deal fairly, you should use contract law to solve the problem, instead of trying to use tort law to sneak around some of the limitations of contract law (no punitive damage, for example). Since real estate transactions are contractual, misrepresentation should be barred by the ELD. So held the court.

So are you out of luck if you’ve been lied to? Well, not entirely. Misrepresentation was popular because it tended to fit the facts in most cases, was easier to prove, and generally was the right tool for the job. But, as anybody who has ever driven a nail with a wrench knows, just because you lose your hammer doesn’t mean you can’t get the job done.

Until the legislature passes a law allowing misrepresentation – it’s in the works – here’s the tools you can use to pound the misrepresenting seller:

  • Breach of contract: You know all of those forms you sign when you buy a home? Those are contracts, and if the seller makes any promises in them that turn out not to be true, you can sue for breach of contract. A suit for breach only entitles you to recover what you actually lost due to the breach. Notably, breach is not a very strong suit to bring if no promise was made (i.e., they just failed to mention the demonic possession), because it is hard to breach a promise you never made. Sure, those contracts require you to disclose major defects, but then you get into an argument about what is major, and so on.
  • False advertising. If the seller makes misrepresentations about the very thing that is wrong, you may be able to pursue false advertising.
  • Theft by Fraud. You were lied to. The lie made you buy. The seller took your money. Now you are spending more money to fix what you were lied to about. Sounds a lot like a misrepresentation case, but it’s called theft by fraud. The trouble here is you actually have to prove the crime of theft to get to a recovery. Usually the facts are a little less egregious than that.

The upshot is you still have ways of getting a remedy if your seller has lied to you or failed to disclose a material defect. The best remedy, however, remains caution. Make sure you have a thorough inspection done. Read the contract carefully. Ask the seller questions. Consult a lawyer. Uncovering a defect before you close is a far better outcome than suing after the fact.

Read More: Home buying after Below: Navigating the Economic Loss Maze

Chris