On October 6, 2012 in Colorado Springs, CO, Beth Ermatinger Hanan was inducted as a fellow in the American Academy of Appellate Lawyers. The Academy was founded in 1990 to advance the highest standards and practices of appellate advocacy and to recognize outstanding appellate lawyers. Membership is by invitation only, and only after a rigorous background investigation including contact with the nominee’s opposing counsel in multiple appeals and with judges before whom the nominee has appeared. Ms. Hanan is one of three AAAL fellows in Wisconsin.
Gass Weber Mullins is pleased to announce that firm co-founder Brian G. Cahill has been named a fellow for the Federation of Defense & Corporate Counsel. Cahill was inducted at the organization’s 2012 Annual Meeting in Banff, British Columbia.
Induction to fellowship in the FDCC is by invitation only and follows an extensive vetting process. Nominees must be in high professional standing, exhibit good moral character and have distinguished themselves in their field.
Cahill has recently received a series of notable accolades including a fellowship in the Prestigious Litigation Counsel of America. He is also prominently featured in this month’s edition of Corporate Counsel Magazine.
The Litigation Counsel of America is a trial lawyer honorary society composed of less than one-half of one percent of American Lawyers. Fellowship in the LCA is highly selective and by invitation only. Fellows are selected based upon effectiveness and accomplishments in litigation, both at the trial and appellate levels, and superior ethical reputation.
Congratulations to Amelia McCarthy on her 2011 ProBono Award from Super Lawyers
She was recognized for her tremendous efforts in Africa where she worked with Namibia’s Legal Assistance Center to draft a child protection bill that will overhaul laws that were put in place prior to Namibia’s Independence from South Africa, during apartheid.
Gass Weber Mullins co-founder Ric Gass is the subject of an Executive Profile in the April 27, 2012 issue of Milwaukee Business Journal. In this feature, Gass, a nationally renowned litigator and president of the Litigation Counsel of America, discusses his background, the string of consecutive trial victories achieved by Gass Weber Mullins from 2010-12, and the multi-faceted approach which has led to his longstanding success in the courtroom.
Gass believes that combining cutting-edge technology with traditional litigation skills allows him to be optimally persuasive to juries. The method appears to be working. The attorneys of Gass Weber Mullins have won more than $130 million in verdicts over the past three years. Gass himself has won three trials since December 2011, and expects to try four more by the end of 2012.
G. Steven Henry, executive director and general counsel of the Litigation Counsel of America, commented that, “Gass is a trial lawyer at the top of his game and has developed an exceptional ability to communicate with juries….He’s truly an artist at taking a case and dissecting it and getting to the heart of the matter.”
Milwaukee Lawyers Win Consecutive Jury
Verdicts in Million Dollar Cases Across the USA
Gass Weber Mullins, a Milwaukee-based twelve attorney trial law and litigation boutique firm, won three consecutive jury verdicts for its clients in million dollar cases across the USA in a six week span — from the Eastern-most Federal District Court in Maine, to the Western-most Federal District Court in Hawaii, and in a Wisconsin state court. Given most litigation is settled prior to trial, this group of consecutive jury trial wins by a single firm, in a forty day time period, is especially impressive.
“We pride ourselves on being able to provide small firm service while delivering big results. This string of victories demonstrates our success at doing both on a national scale,” said Managing Member Beth Hanan.
First, in a Portland, Maine federal court on November 10, 2011, Gass Weber Mullins lawyer Ralph Weber won a unanimous jury verdict on indemnification claims for their client, a ground beef processor and seller. The client’s claims arose from a multi-state foodborne illness outbreak and the corresponding millions of dollars in personal injury claims. Weber and Stevens established the source of the outbreak, winning full indemnity for the client including attorney’s fees.
Next, in a Madison, Wisconsin state court on December 12, 2011, Gass Weber Mullins lawyers Brian Cahill and David Turek won a $1 million jury verdict for their client, a construction contractor in a major University of Wisconsin construction project. Cahill and Turek established their client’s contract was wrongfully terminated.
Finally, in a Honolulu, Hawaii federal court on December 19, 2011, Gass Weber Mullins lawyer Ric Gass secured a defense verdict on a two-pronged wrongful death claim against his client, the County of Maui. The claim sought over $1 million in damages under both a negligence claim and a sec. 1983 civil rights claim for alleged inadequate jailhouse care resulting in a prisoner’s death. Gass proved the County acted lawfully, winning dismissal of the claim.
“We are gratified to successfully represent our clients in these difficult cases. Whether they need to aggressively pursue or defend against a claim, clients choose Gass Weber Mullins for their most difficult challenges because of our proven ability to win cases in courtrooms across the country,” said Ralph Weber. “This string of victories for our clients is especially gratifying since so few cases actually make it to trial, and our twelve attorney firm supported these complex trials nearly simultaneously at the geographic extremes of our judicial system,” said Ric Gass.
Gass Weber Mullins is a Chambers USA and U.S. News top-tier, 12 attorney trial law firm based in Milwaukee, WI specializing in national-scale litigation. These results corroborate the firm’s selection by Corporate International Magazine as Wisconsin Litigation Law Firm of the Year.
Governor Walker Announces Judge Michael Brennan to Serve as Chairman of Judicial Selection Advisory Committee
–Governor Walker announced today that Judge Michael Brennan has agreed to serve as Chairman of the Judicial Selection Advisory Committee. The Judicial Selection Advisory Committee was created by Governor Walker’s Executive Order #29 to help guide his judicial selection process and ensure that judges of the highest caliber who share a commitment to the rule of law are selected to serve Wisconsin.
“A fair and impartial judicial system is vital to our government,” said Governor Scott Walker. “We rely on our judges to be true to the rule of law and to use their power to secure justice, protect property rights, and preserve liberty for Wisconsin citizens. I’m thrilled that Judge Brennan has agreed to help our state find the very best attorneys to serve in our judiciary.”
“I thank Governor Walker for the honor and privilege to serve as chairman of the Judicial Selection Advisory Committee,” said Judge Michael Brennan. “Judicial selection deserves great attention because of the awesome power of the Third Branch of government. Because the exercise of that power depends on the person in the robe, the Judicial Selection Advisory Committee will be committed to finding the best Wisconsin attorneys to serve in our judiciary. We will help the Governor appoint as judges people who are faithful to the rule of law, and who embrace the proper role of the judiciary to interpret and not to make that law.”
The JSOnline blog “Proof and Hearsay” also noted Brennan’s selection and additional information about the newly-created Judicial Selection Advisory Committee.
The Wisconsin Supreme Court announced recently that any Court of Appeals decision which has been overruled, even in part, no longer holds any precedential value unless the supreme court expressly states that it has left some portion intact. Blum v. 1st Auto & Casualty Ins. Co., 2010 WI 78, ¶ 56, 326 Wis. 2d 729, 786 N.W.2d 78. This new rule will change long-standing appellate practice. This new rule may mean a ‘net loss’ of useable precedent.
The court took up this question of procedure (and indirectly, substance) in an uninsured motorist coverage (UM) case. The Blum court of appeals had relied in part on a decision which the supreme court had overruled fully, but which the court of appeals read to be overruled only in part. 2010 WI 78, ¶ 57. Thus, under established jurisprudence, the earlier court of appeals decision seemed to retain some precedential value.
No more. The supreme court determined that its own law-developing function would be ill-served by requiring it to address specifically every holding in a court of appeals decision to protect the coherence of the supreme court’s holding on a particular issue. Id., ¶ 49. Similarly, because the court of appeals is primarily error-correcting, its role should not include recognizing the precedential value of portions of published opinions that have been overruled. Id., ¶ 50. Creating a bright-line prohibition would seemingly lead to less confusion, and more efficient court operation. Id., ¶ 53-54.
But the new “bright line” may have some shadows. For instance, the three dissenters saw a difference between the Blum rule for “overruled” decisions, and the absence of such a rule (at least expressly) for a decision that is “reversed.” Id., ¶ 91. The rule implicitly may mean that “overruled” decisions no longer even hold persuasive value, see Wis. Stat. (Rule) § 809.23(3)(b), but that likely will be tested. The dissent also lamented that the procedural issue should have been reached after soliciting input from Wisconsin judges and lawyers, via referral to the Wisconsin Judicial Council. Id., ¶ 94. Only counsel for Blum had argued for a new bright-line rule; neither counsel for the insurer nor the two amici took any position on the question.
What is the practical effect? First, there is an abundance of appellate decisions which have been partially overruled, and which now may not be cited as precedent. In the last two years, for example, the supreme court itself relied on decisions which had been “overruled on other grounds.” Likewise the court of appeals, the circuit courts and many litigants have relied on discrete holdings in cases which were overruled in part. Those practices will have to change.
But perhaps the change is only by a matter of degree. The partially-overruled decisions apparently still may be cited for whatever persuasive value they retain. In certain cases, petitioner-counsel may urge the supreme court to overrule only in part. Time will tell whether the new Blum rule has eliminated confusion for the courts, improved judicial economy, or deprived litigants of useful authority which must be advocated for anew.
 See Roehl Transport, Inc. v. Liberty, 2010 WI 49, ¶ 114 n.41, 325 Wis. 2d 56, 784 N.W.2d 542; Christensen v. Sullivan, 2009 WI 87, ¶ 117 n.17, 320 Wis. 2d 76, 768 N.W.2d 798; Estate of Genrich v. OHIC Ins., 2009 WI 67, ¶29, 318 Wis. 2d 553, 769 N.W.2d 481; State v. Romero, 2009 WI 32, ¶ 49, 317 Wis. 2d 12, 765 N.W.2d 756.
The story of law is about balancing competing interests. The balance between plaintiffs and defendants is about to be adjusted in Wisconsin as a result of changes in control of the Legislature and Governor’s Office. A Bill has been introduced for consideration in Special Session that will dramatically impact Wisconsin tort law.
If adopted, Wisconsin will have new laws for (1) punitive damages, (2) admitting expert testimony, (3) product liability and (4) other limits on lawsuits and damages.
Are these changes appropriate? Yes.
First, punitive damages are not intended to compensate the injured party, but rather to punish and thus deter reprehensible conduct. Thus, some states do not allow punitive damage awards to go to the plaintiff, but instead use them for a public benefit. Vague standards for awarding punitive damages permit random results driven more by anger than by the careful assessment that a system of due process should require in assessing potentially ruinous penalties. The reality of punitive damages in civil litigation is that they drive up the value of settlement for defendants who are unwilling to put their financial future in the hands of twelve strangers. The new standards correctly narrow the use of punitive damages to the rare cases in which harm is intended.
Second, experts who testify in Wisconsin state courts currently face few limits under the Rules of Evidence because, unlike most states, Wisconsin has not followed the federal lead in tightening standards for expert testimony. Federal courts adopted stricter screening as experts began advancing positions to juries that would not pass muster in their academic discipline. The Bill will give trial judges the tools to ensure that experts satisfy basic thresholds for valid and reliable opinions.
Third, product liability law changes will move Wisconsin toward the national mainstream for defining product defect, which is sensible given the national market for goods and the corresponding value of uniformity in rules governing product liability. Manufacturers will get the benefit of complying with product standards because jurors will be told that compliance with such standards creates a presumption that a product is not defective. Those in the chain of retail distribution will get protection against being sued, so long as the manufacturer is subject to suit. Under current law a Wisconsin retailer often is named simply to defeat federal jurisdiction and faces defense costs even though the manufacturer is the target. Further, with limited exceptions manufacturers will not be sued for products made 15 or more years prior to the accident. This relieves manufacturers from having to defend products that left their control long ago and they often have not seen for nearly a generation.
The Bill also undoes the Wisconsin Supreme Court’s controversial 2005 lead pigment decision (a matter in which our firm and I represent a defendant). The decision troubled many because it put companies at risk of paying for damages even though their product was not a cause of plaintiff’s harm. Subject to a narrowly defined exception, under the Bill plaintiffs must again prove a link between the defendant they have sued and the specific product alleged to have caused their injury.
In a democratic republic, our elected representatives can and should determine when our tort system needs updating. It is no answer that these changes are unnecessary because Wisconsin juries are conservative, that punitive damages are rarely awarded or that total case filings are down. These comments ignore the reality of litigation. Nearly all cases settle before trial (some, especially smaller cases, before filing), and these settlements are based upon each side’s assessment of risk based on the facts and the law. As the law changes to strike a fair balancing of the rights of plaintiffs and defendants, the consequence will be reflected in how and when cases resolve.
Moreover, our elected representatives give voice to our desires for change. For some time many have felt we too readily turn to litigation, that the constant spectre of “you can be sued” corrodes our joint enterprise. This Bill addresses those concerns as well by adjusting Wisconsin’s tort law balance.
This post originally appeared in the Milwaukee Journal Sentinel on January 10th, 2011.
Dramatic Changes in Wisconsin Tort Law Proposed
The Wisconsin Legislature will be considering a bill in Special Session that would make multiple changes in Wisconsin tort law.
Here are a few highlights:
- New standard for punitive damages;
- 15 year statute of repose;
- New rules for claims based on the risk-contribution theory;
- New rules for joint and several liability in products cases;
- New standards for determining when a product is defective;
- New protections for sellers and distributors;
- Presumption that plaintiff was a cause of his injury if he was under the influence of a controlled substance or had an alcohol level of .08 or more;
- Presumption that product is not defective if it complied at time of sale with “relevant standards, conditions or specifications adopted or approved by a federal or state law or agency;”
- New limits on subsequent remedial measures evidence; and
- New threshold for admitting expert testimony.
Stay tuned for news as this bill proceeds through the Wisconsin legislature.
The core teaching in How We Decide is that the various parts of our brain work together. The limbic or reptilian brain is a powerful supercomputer that has evolved over millions of years. It constantly gathers information at a subconscious level and “informs” decision making by triggering pleasure and fear centers in the brain. We experience these assessments as intuition or gut instincts. The frontal cortex, a brain part that came along later in the evolutionary cycle, assesses information in a different, “rational,” way. We experience these assessments as conscious thought, and persuade ourselves that the key to correct decisions is a sufficiently complete list of pros and cons.
How do these insights play out in litigation? Well, we ignore our subconscious brain at our peril. This remarkable tool collects and processes data at lightning speed. Over time, thanks to the lessons of trial and error, experts get a sense for a lawsuit’s strengths and that sense should receive our attention.
At the same time, our subconscious brain can mislead us. Fear of pain makes us act in ways that objectively don’t make sense. As Mark Twain noted, “a cat won’t sit on a hot stove twice; the problem is it won’t sit on a cold one either.” Bad is stronger than good (negativity bias), so the bad feelings forecast in the event of a loss can overwhelm the best judgment to proceed notwithstanding an uncertain outcome. One way loss aversion in the litigation arena manifests itself is in difficulty briefing any issue that is not a slam-dunk. Lawyers will wring their hands over the responsive arguments they anticipate (or imagine) from the other side and then be paralyzed from moving forward lest they file a brief that might lead to a loss at the motion hearing.
Another time loss aversion comes to the fore is on the eve of trial when every defect in your case is magnified and suddenly the sure winner that you told your client they should definitely take to verdict is now understood to be a terrible case that should be settled immediately. (Clients of course love this pretrial epiphany, and think fondly of the hundreds of thousands they spent in trial preparation). My colleague refers to this as “squishy socks” syndrome, when the trial lawyer is sweating so badly that you can hear them “squish” as they walk down the hall in the days before trial.
This is where conscious thought must come into play. The experienced lawyer tells the young brief writer, “it’s okay, yes we can lose this motion, but let’s make the best arguments we can and see what the other side comes up with and then let the judge decide.” The lawyer preparing for trial tells herself (or her nervous colleague), “let’s not confuse the desire to avoid the anticipation of pain from an adverse verdict with a judgment about the strengths of our case. If this was such a great case months ago, has anything changed that should lead us now to distrust that earlier judgment other than the fact that the trial date has arrived?” (One problem with fear is that it narrows cognitive thinking so you do not see the big picture. At the same time, one should consider whether the earlier judgment was driven by the pleasure associated with an unconsidered certainty in your position, sometimes described as “not always right, but never in doubt.”). If something has changed that should lead to a reassessment of the case, then take note of the perspiration running down your legs. If not, then chalk it up to loss aversion and go try the case.
So what message of How We Decide should we keep in mind in making litigation decisions? Pay attention to your emotions. Don’t foolishly ignore what the subconscious brain is telling you, but likewise appreciate that your intuition might be mislead by loss aversion, negativity bias and other objectively unsupported drivers of decisions. “Thanks to the prefrontal cortex, we can transcend our impulses and figure out which feelings are useful and which ones should be ignored.” Id. at 115.
As trial lawyers we pretend that all our decisions — including if, when and how to settle a case — are rooted in logic. We create decision trees, we research jury awards, we plumb the depths of our hard-won experience – and as a result we simply set emotion aside and give our clients the “right” advice. Our clients in turn weigh our advice dispassionately and reach a sensible decision based upon even-handed balancing of pros and cons, risks and rewards.
Well, the human brain isn’t so simple. It turns out that the emotional part of our brain has a simple, powerful flaw known as loss aversion. As demonstrated by psychologists Kahneman and Tversky, and as described in Jonah Lehrer’s How We Decide, the pain of loss is twice as powerful as the pleasure of a gain. Accordingly, low-yield bonds are popular because they seem a safe bet, even though over time stocks outperform bonds by a large margin. “The fear of losses makes investors more willing to accept a measly rate of return.” Similarly, investors are quicker to sell stocks that have increased in value, while stubbornly hanging on to those that are losers: “selling shares that have decreased in value makes the loss tangible. We try to postpone the pain for as long as possible; the result is only more losses.”
It turns out that loss aversion is part of a phenomenon known as negativity bias: “bad is stronger than good.” (see, eg., the current deluge of political campaign ads). This proves out in experiments in which participants are presented with two mathematically identical risks, but their decisions change markedly depending on whether the alternatives are framed as possible gains versus possible losses.
For example, in part 1 you are given $50 and offered two choices: either you can take a gamble that gives you a 40% chance of keeping the $50 and a 60% chance of losing everything, or you can forego the gamble and automatically keep $20.
Now you play the game again, and while the first option is the same – taking a gamble with a 40% chance of keeping $50 and a 60% chance of losing everything. The alternative option, the sure thing, changes only in its description from getting to keep $20 to having to lose $30. (Yep, read it again – having to lose $30 out of $50 is precisely the same as getting to keep $20 out of $50).
So guess what our mind does to us? Even though the two parts of the experiment present identical options from a mathematical perspective, when the choice is framed as gaining $20, 58% take the money and 42% pass on the 40% chance of keeping $50. But when the choice is framed in terms of losing $30 (again, the same thing), now only 32% take the sure thing and 68% roll the dice! How We Decide, 105-06.
Thus, in settlement negotiations, the clever bargainer will frame the other side’s choices in terms of what they will lose if they go forward versus what they can gain by settling now. Those who don’t understand how their excited amygdala can mislead them will focus on the surge of emotion they feel when they anticipate the pain of loss, and then either pay more or take less than their reason would say they should.
How to avoid this trap? See the next post.
Seventy-two years ago Justice Stone authored an Opinion upholding Congressional power to declare certain foods adulterated and thus not to be shipped in interstate commerce. United States v. Carolene Products Co, 308 U.S. 144 (1938). In law’s most famous footnote, Justice Stone also cautioned that while this law was plainly valid, there were circumstances when the Court’s deference to political processes might be limited.
One such circumstance, he noted, could be legislation that failed to account for the interests of those without effective representation in the halls of government:
may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.”
The footnote’s cautionary paragraphs did not focus on either the words or the intentions of those who drafted the Constitution, as some insist must be done. Instead, they focused on “the dynamics of government” and “plainly assume the existence of two national objectives – government by the people, and government for the whole people – and focus attention on the Court’s special ability to effectuate them.” Louis Lusky, By What Right? 109 (1975).
Against this background, let’s consider the debate over the construction of a 13-story Islamic Community Center and mosque about two blocks from the World Trade Center site. This center, originally named “Cordoba House” (intended to invoke the model of peaceful coexistence among Muslims, Jews and Christians in Cordoba, Spain during the 8th-11th centuries), renamed “Park51” (its street address), is widely referred to as the “Ground Zero Mosque.”
Polls report consistent majority support for the Muslim’s legal right to build their center where they wish. Some support the project, seeing it as a way to demonstrate respect and tolerance. Others contend its location insults the memory of those killed that day, “like bringing a pig into the Holy Temple,” or putting “a German cultural center on top of a death camp,” or building a “Japanese cultural center across from Pearl Harbor.”
I wonder about linking an entire religion to the acts of the 9.11 terrorists and equating the building of this center with an endorsement of the attacks. Yes the 9.11 murderers claimed to be acting in the name of their religion, but that no more justifies wholesale rejection of Islam than would David Koresh’s conduct in Waco justify wholesale rejection of Protestants. (Indeed a catalogue of acts done in the name of religion that we would all recognize as atrocities would not be brief).
Jonah Lehrer’s book, How We Decide, makes accessible to we lay people the insights neuroscience is gaining through the use of brain imaging technology. Lehrer’s point is that the assumption of rationality versus emotion is wrong – it’s not how the brain works. Rather, our decisions are a blend of passion and logic. The emotional brain combines with the prefrontal cortex and together they move us to action. Lehrer credits Aristotle with appreciating how the rational soul works with emotion “to make sure that emotions were intelligently applied to the real world.”
“But to become angry with the right person, to the right
degree, at the right time, for the right purpose, and in
the right way – that is not easy.”
As Lehrer comments, “[t]hat requires some thought.”
It remains to be seen how the mosque issue will play out. But as we recognize the power that emotions quite understandably play in our group decision-making, perhaps neuroscience has confirmed the wisdom of Carolene Products’ approach. Thus, when we the people face difficult decisions in which emotions are powerfully stirred, the Court’s searching judicial inquiry can help ensure both government by the people and government for the whole people.
When judges are in the headlines for matters other than deciding the cases before them, it is usually not a good thing.
Unfortunately, much of the news about Wisconsin’s judiciary the past few years has been of a political character. The Wisconsin Supreme Court has drawn attention for judicial campaigns and their financing, internal discipline and when a justice should recuse herself or himself from a case. A lawsuit recently challenged Wisconsin’s code of judicial conduct on whether judges can join political parties, personally raise money and endorse partisan political candidates.
Wisconsin is not the only state with a high court in the headlines other than for its decisions. Michigan’s Supreme Court has undergone partisan fights recently, and the U.S. Supreme Court held that a justice of the West Virginia Supreme Court had to recuse himself from a case involving a company whose president spent $3 million to re-elect the justice while the company’s appeal was pending.
A robust debate about a branch of government is always welcome. But the discussion surrounding Wisconsin’s courts sometimes assumes that law is just another name for politics. And the more politics dominates the discussion, the more the state’s judiciary may be paying a price.
The political drumbeat around courts can sap their strength. Without a constant reminder of the judiciary’s proper role, the distorted view that “law is just another name for politics” flourishes.
The role of courts in adjudicating cases is different from politics.
Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters. Sometimes the judicial role means court decisions run counter to current public opinion.
Independent, impartial decision-making is the cornerstone of judicial branch activities, which include the power of judicial review. Wisconsin courts can invalidate a state law that violates a constitutional provision or that was not enacted according to the process outlined in the constitution.
A corollary to this duty of judicial review is the obligation of courts to act differently from the more political government branches. An important way to distinguish adjudication from politics is for courts to adopt neutral principles in the cases before them.
Neutral principles consist of two elements: neutral content and equal applicability. A decision rests on neutral principles for reasons transcending the immediate result of the case. That decision then applies to all parties equally.
Neutrality underlies much constitutional doctrine. For example, procedural due process guarantees a hearing before a neutral tribunal, and equal protection of the law demands race- and gender-neutrality.
Adopting neutral principles is a way to seek the objectivity that should distinguish law as a discipline from politics. Neutrality is a guide for the courts, both in choosing the law and applying the law.
The idea that law should be based on neutral principles provides a powerful rebuttal to the idea, express or implied, that law is just another name for politics.
The strength of a court is as a legal institution, not as a political one. Viewing judges as quasi-legislators with predictable voting patterns obscures the proper role of a court to use the tools of the judicial workshop – a law’s text, structure, constitutional history and precedent – to interpret and apply the law.
A constant reminder of the proper role of the judiciary – to be even-handed, nonpartisan legal technicians interpreting and applying, not making, the law – provides an important touchstone for Wisconsin’s courts. It does the same for discussion about them. There is a distinction between healthy debate and a court and its work seen in terms of partisan politics.
A court’s authority encompasses power and neutrality. Lady Justice may hold a sword, but her scales and blindfold are just as important to who she is.