Judge Sets Expert Witness Rates

Posted on January 16, 2012 by Tom Schober

wislawjournal.com recently reported that "Milwaukee County Circuit Court Chief Judge Jeff Kremers issued a directive Monday morning that reimbursement of court-appointed expert witnesses should not exceed $2,800 at a maximum rate of $150 per hour." How is this likely to affect businesses involved in litigation in Milwaukee County?

Business disputes often arise over what the "value" of something is, whether it be the value of a business or the value of a contract. So, when the court is perplexed, the court often seeks advice from an expert, appointed by the court, to help the court decide. Now, in Milwaukee County, the courts are limiting the charges such experts can charge for their services to $2,800 and $150 per hour. Many such experts often are paid double or triple that amount to perform their services. Do judges think that just because they appoint such experts that they are going to be willing to work for a lesser payment? And if they do, will their work be of the same quality as that for which they get paid in full?

The parties to litigation have to bear the costs of litigation, even the costs of experts appointed by the judge. Consequently, it is no cost to the court, the county, or the taxpayer if the court pays experts an appropriate fee for their services.

If a judge relies on an expert's opinion and the expert is all wrong, will an appeals court overturn a judge based upon such discount basement pricing?

All this remains to be played out, and only appellate decisions will give us the answers to these questions. However, I think this will get business litigants thinking hard as they consider settlement negotiations and ultimately may be overruled by a judge using his or her own experts.
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Wisconsin's New Budget Increases Small Claims Dollar Limit

Posted on July 2, 2011 by Tom Schober

On June 26, Governor Scott Walker signed into law Wisconsin's 2011-2013 biennial budget bill. This bill increases the amount that one may sue in Small Claims from "$5,000 or less" to "$10,000 or less." This means that claims for money judgments, garnishments, attachments or actions to enforce a lien upon movable assets may now be brought in Small Claims Court, so long as the amount in controversy is $10,000 or less.

While such actions may be brought as regular large claims, the filing fee for a large claim is $265.50, as compared to the relatively modest cost of $94.50 for a small claim filing.

The new increase does not apply to third-party complaints, personal injury claims or tort claims, which remain at the current $5,000 or less limit.

The same law will now permit the State of Wisconsin to pay claims up to $10,000 without legislative approval.

The new law affects small claims filed on or after July 1, 2011.
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Damages for Insurer's Failure to Defend

Posted on December 7, 2010 by John Bruce

A decision of the District Court for the Eastern District of Wisconsin has serious implications regarding the amount of damages payable where an insurance company breaches its duty to defend its insured from claims made against it.

Wisconsin law provides that an insurance company is obligated to defend its insured from legal action even if only one of several claims made against the insured is covered under the insurance policy.  Wisconsin state courts have not specifically addressed what damages are payable by an insurance company where only one of several claims are covered by the policy.

In Johnson Outdoors, Inc. v. General Star Indemnity Co., 2009 WL 4043194, the Eastern District Court determined that damages payable for breach of the duty to defend would be damages attributable to the covered claim only.  Therefore, where there had been a settlement of various claims made against the insured, the insurer could discover information pertinent to the question what portion of the settlement related to the covered claim.

The District Court made its own analysis of existing Wisconsin case law.  It will be interesting to see whether the state courts follow the District Court's rationale.  Insurers are liable for attorneys fees incurred by an insured in defending itself where the insurer breaches the duty to defend.  It is unclear whether this decision would be applicable with respect to attorneys fees, and it will not necesssarily be easy to determine which fees are related to which claims, if the District Court's decision is followed.
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Courts Are Wary about Allowing Parties to Clone Opposition's Hard Drives

Posted on September 8, 2010 by Tom Schober

In a most interesting article in "Law Technology News,"  attorney Mark A. Berman discusses how the judicial system is reluctant to permit opposing parties to clone their opposition's hard drives and that such remedy should only be available if the information cannot be reasonably obtained in other ways.

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The Changing Landscape of Wisconsin Noncompetes

Posted on February 24, 2010 by Rob Sullivan

In Frank D. Gillitzer Electric Co.v. Andersen, a Wisconsin Appellate Court found that a provision in an employment contract that required an employee to repay certain training costs if the employee did not stay with the employer for four years after the training was completed did not violate Wis. Stats. § 103.465.  This was the case even though there appeared to be no disagreement that the “separate” explicit noncompete portion of the employment contract was overbroad and did violate §103.465.  This decision follows a the recent Wisconsin Supreme Court decision in Star Direct v. Dal Pra where the court appears to look more favorably about reading divisibility into employment contracts (as opposed to striking all restrictive covenants in an agreement containing an overbroad covenant). This holding brings up some interesting questions to consider when drafting or litigating noncompetes. What would the result be if the employer would set forth in the employment agreement that 10% of an employee's earnings during first 5 years of employment were really excess payments (or training costs) and if she leaves during that 5 year period, she owes the company 10% of her earnings during her employment?

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Further Proof that Noncompete Agreements are Unique

Posted on June 25, 2009 by Rob Sullivan

The court battle between IBM and Dell over the employment of former IBM M&A chief David Johnson provides even more evidence that Noncompete Agreements are highly unique contracts that often lead to some highly unique arguments in litgation. It appears Mr. Johnson is arguing that because he “intentionally” signed the noncompete on the wrong line, it is not valid.  In other types of transactions (and maybe this one too) this type of admission would most likely lead to a misrepresentation, fraudulent inducement, or similar common law claim that could open up a party to significant liability.

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Kentucky Basketball and Letters of Intent

Posted on June 11, 2009 by Rob Sullivan

The current dispute involving the University of Kentucky and its former men's basketball coach, Billy Gillispie, is an example of a not so uncommon problem with informal agreements. In general, “agreements to agree” (aka “letters of intent” or “agreements in principle) are not binding contracts under Wisconsin law. Instead, they are tools used to clarify significant points of a transaction in order to more easily draft the “final” documents. Unfortunately, the “final” documents are not always drafted and signed. As in the Gillispie situation, this often leads to one side of the transaction arguing that the letter of intent was actually a binding contract. A good practice is to make it absolutely clear in any letter of intent that it is not binding and then, of course, to formalize any agreement in a definitive document or clearly terminate the letter of intent with some type of writing.

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