Badger Lawyer’s own Chris Doerfler was interviewed recently for an article on how lawyers should deal with the media. See it here.

BadgerLawyer recently settled a modest personal injury matter for a client. The client received several thousand dollars as compensation for injuries he sustained in an automobile accident. But what is more important, because he came to BadgerLawyer and took advantage of out unique fee structures, he received several hundred dollars more than he would have from any other law firm handling the same case. When you are looking for a lawyer to handle a contingency fee matter, remember that the amount of the lawyer’s percentage makes a big difference in how much you ultimately get.  At BadgerLawyer, we keep costs down so you get more.

Chris

Even though there is no specific law for it, courts are starting to recognize and order “virtual visitation” in more and more child custody cases. Getting to chat with your child over web cam or on face book isn’t the same as being there, but it certainly is better than waiting until next weekend.

See the whole article in Wisconsin Law Journal.

“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

Seriously, would you be alright with a judge who told you he thought it was just fine to “mislead” the public when running for office?

That’s just what the attorney for Wisconsin Supreme Court Justice Michael Gableman argued today. That the judge had a constitutional right to mislead the public in his campaign to win a seat on the Wisconsin Supreme Court. The “misleading” statement in question was the attack ad Gableman ran against then sitting Justice Butler. The one that accused Justice Butler of finding a technicality that put a child molester back on the street where he then molested another child. Sounds bad, but it isn’t true. The child molester actually went to prison, served his sentence, and was released, where he then molested another child.

So what do you think? Is it okay for a political candidate, especially a candidate for judge, to “mislead” the public in order to get himself elected?  I certainly don’t think so.  Like everyone, I have my political views, and sometimes the person I vote for wins, sometimes not, but what’s a lot more important to me is that I am able to make my decision based on facts, not lies.

Chris

Read the full article at the Wisconsin Law Journal.

Most people don’t know this, but a jury is completely allowed to find a person not guilty even if the evidence overwhelmingly supports the conclusion that the person is guilty. This is called Jury Nullification. A federal judge in New York recently wrote an article on it, including a good example of when it happens.  This may be way TMI for you non-lawyers out there, but if you are curious, I give you here an excerpt:

Perhaps the textbook example of jury nullification in a gun possession case is the recent acquittal of Cpl. Melroy H. Cort. As recently reported in the Washington Post,35 the defendant, a U.S. Marine whose legs had been amputated above the knees when he was wounded by a makeshift bomb during his third tour of duty in Iraq, was traveling from his home in Ohio to Walter Reed Army Medical Center in D.C. for treatment. While traveling in Washington, he had a flat tire, forcing him to pull over at a car repair shop. A witness noticed that he had a gun in his jacket pocket and called the police, who arrested him as he was sitting in his wheelchair. He offered no resistance and readily admitted that he was traveling with the gun.

Since the defendant was not licensed to possess the gun in Washington, as required by D.C. law, his court-assigned attorney advised him that he had no defense to the charge and encouraged him to plead guilty. Cort refused, fired his lawyer, and represented himself at trial. He testified about the loss of his legs and explained that he had a permit to carry the gun in Ohio, and had brought it with him because he had moved out of his house in anticipation of an extended stay at Walter Reed. He told the jury that his commanding officer had advised him to take the gun to the armory on Walter Reed’s base as soon as he arrived. Given that the defendant admitted that he possessed the gun in violation of D.C. law, his acquittal clearly amounted to jury nullification.

The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly.36 At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court.”37 After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believed it such, it was not a finable fault, nor deserving imprisonment. …”38 Bushell’s Case is widely cited as the first precedent for the independence of the jury.

Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the United States. Zenger was charged with publishing seditious libels against the governor of New York; it was clear he had published the writings in question. Although the court instructed the jury that it could only consider whether Zenger had printed the material at issue and could not consider the truth or falsity of the writing, the jury acquitted Zenger, believing that he had printed the truth and should not be convicted.39

As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850s.”40 Even as late as 1910, Harvard Law School’s eminent Dean Roscoe Pound wrote: “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”41

There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States.42 In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the evidence supported a murder conviction, it did not support a manslaughter conviction. While the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly — not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable).43 The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”44

This anti-nullification view was expressed once again in Horning v. District of Columbia,45 where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law. …”46 Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute,] obviously the function of the jury if they do their duty is little more than formal.”47 While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since … on the facts admitted there was no doubt of his guilt.”48 In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury. …”49

The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty,50 Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions … from respected sources — John Adams; Alexander Hamilton; prominent judges — that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”51 However, he continued, “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”52

Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed.”53 Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”;54 as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary.55 Judge Bazelon, in dissent, criticized as “sleight-of-hand” the practice of intentionally hiding the right of nullification — the existence of which the majority had acknowledged — from the jury.

See the whole article:  Guns and Nullification or here on BadgerLawyer