Wisconsin Civil Trial Journal Spring 2017 • Volume 15 • Number 1

Also In This Issue

President’s Message: Major, Destructive Changes to Workers’ Compensation Proposed in Governor Walker’s 2017-19 Biennial Budget Trial Practice Series Laura M. Lyons

It Depends on the In Seifert v. Balink, the Wisconsin Supreme Court Misses Its Chance to Twelve You Get: A Clarify Daubert Look at the Jury Ryan M. Wiesner & Brent A. Simerson “Direct,” “Indirect,” and “Convincing Selection Process Mosaic”: The Four Forbidden Words William R. Wick & in Seventh Circuit Employment Discrimination Cases Katelyn P. Sandfort David R. Friedman

Tackling Your First Appellate Oral Argument Kathryn A. Harrell

Recent Decision Puts Brakes on Wisconsin Runaway Copyright Infringement Defense Counsel Litigation Defending Individuals And Businesses In Civil Litigation John Healy Amicus Curiae Committee Chair Columnists OFFICERS Monte Weiss PRESIDENT Weiss Law Offices, S.C. David R. Friedman [email protected] Laura Lyons Friedman Law Firm Bell, Moore & Richter, S.C. Employment Law Committee Chair [email protected] Nicole Marklein Bacher Kathryn A. Harrell PRESIDENT ELECT Cross, Jenks, Mercer & Maffei Boardman & Clark LLP [email protected] Fred Strampe Borgelt, Powell, Peterson & Frauen, S.C. Insurance Law Committee John Healy [email protected] Chair: Monte Weiss Corneille Law Group, LLC Weiss Law Offices, S.C. SECRETARY/TREASURER [email protected] Ariella Schreiber Laura M. Lyons Rural Mutual Insurance Vice Chair: Christine Rice Wisconsin Defense Counsel [email protected] Simpson & Deardorff, S.C. [email protected] IMMEDIATE PAST PRESIDENT Katelyn P. Sandfort Jeff Leavell Legislative Committee Chair Nash, Spindler, Grimstad & Jeffrey Leavell, S.C. Jeff Leavell McCracken LLP [email protected] Jeffrey Leavell, S.C. [email protected] PROGRAM CHAIR Brent A. Simerson Leib Knott Gaynor LLC Christine Rice Website Committee Chair Simpson & Deardorff, S.C. Christopher Bandt [email protected] Nash, Spindler, Grimstad & Ryan M. Wiesner McCracken, LLP Leib Knott Gaynor LLC DIRECTORS [email protected] Nicole Bacher Wisconsin Civil Jury Instructions William R. Wick Cross, Jenks, Mercer & Maffei Committee Chair [email protected] Nash, Spindler, Grimstad & Christopher Bandt McCracken LLP Christopher Bandt Nash, Spindler, Grimstad & Nash, Spindler, Grimstad & McCracken, LLP McCracken, LLP [email protected] [email protected] Women in the Law Committee Editor Frank Doherty Chair: Laura Lyons Hale, Skemp, Hanson, Skemp & Sleik Bell, Moore & Richter, S.C. [email protected] Andrew Hebl [email protected] Boardman & Clark LLP Randall Guse Acuity Vice Chair: Heather Nelson [email protected] [email protected] Everson, Whitney, Everson & Brehm, S.C. Patrick Heaney [email protected] Thrasher, Pelish, Franti & Heaney, Ltd. [email protected] Young Lawyer Committee Chair Andrew Hebl Danielle Rousset Boardman & Clark LLP Jeffrey Leavell, S.C. [email protected] [email protected] Sandra Hupfer DRI Representative SECURA Insurance Company Michael Happe [email protected] Weld, Riley, Prenn & Ricci, S.C. Josh Johanningmeier [email protected] Godfrey & Kahn, S.C. [email protected] Executive Director Jane Svinicki, CAE Gina Meierbachtol [email protected] Corneille Law Group, LLC [email protected] Account Coordinator Kelli Dyszelski Travis Rhoades [email protected] Crivello Carlson, S.C. [email protected] Legislative Advisors Amy Scholl Bob Fassbender Coyne, Schultz, Becker & Bauer, S.C. Hamilton Consulting Group [email protected] [email protected] Monte Weiss R.J. Pirlot Weiss Law Offices, S.C. Hamilton Consulting Group [email protected] [email protected]

2 Wisconsin Defense Counsel Defending Individuals And Businesses In Civil Litigation In This Issue…

President’s Message: Major, Destructive Changes to Workers’ Compensation Proposed in Governor Walker’s 2017-19 Biennial Budget by: Laura M. Lyons, President, Wisconsin Defense Counsel ���������������������������������������������4 Trial Practice Series It Depends on the Twelve You Get: A Look at the Jury Selection Process by: William R. Wick & Katelyn P. Sandfort, Nash, Spindler, Grimstad & McCracken LLP ����12 In Seifert v. Balink, the Wisconsin Supreme Court Misses Its Chance to Clarify Daubert by: Ryan M. Wiesner & Brent A. Simerson, Leib Knott Gaynor LLC...... 23 “Direct,” “Indirect,” and “Convincing Mosaic”: The Four Forbidden Words in Seventh Circuit Employment Discrimination Cases by: David R. Friedman, Friedman Law Firm...... 32 Tackling Your First Appellate Oral Argument by: Kathryn A. Harrell, Boardman & Clark LLP...... 39 Recent Decision Puts Brakes on Runaway Copyright Infringement Litigation by: John Healy, Corneille Law Group, LLC...... 46

Journal Policy WDC Members and other readers are encouraged to submit articles for possible publication in the Civil Trial Journal, particularly articles of use to defense trial attorneys. No compensation is made for articles published and all articles may be subjected to editing. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the WDC or Editor. Letters to the Editor are encouraged and should be sent to the WDC office at 6737 W. Washington St., Suite 4210, Milwaukee, WI 53214. The Editor reserves the right to publish and edit all such letters received and to reply to them.

3 President’s Message: Major, Destructive Changes to Workers’ Compensation Proposed in Governor Walker’s 2017-19 Biennial Budget by: Laura M. Lyons, President, Wisconsin Defense Counsel

Imagine this scenario: You are defending a six- body. Picture having to explain these options to figure case involving bodily injuries. You have your clients. Consider the impact of these risk spent eight months preparing it for trial. Your case factors on case values, which are then distributed is strong. While you made a nominal settlement to consumers. offer based on the cost of defense, it was rejected. Both parties agree that this is a case that needs to be This is exactly the type of situation that could tried. The carrier has invested thousands of dollars occur in the workers’ compensation system if the on medical records and defense fees to get to trial. Governor’s recent budget proposal is adopted.

You are ready for hearing and present your case. Even if you do you not practice within the workers’ It goes well. The witnesses testify exactly as you compensation system, I urge you to continue intend and the testimony is favorable to your case. reading. The Governor’s proposed changes, if adopted, will affect insurers, businesses, and A few weeks later, the judge rules against you. You business owners. While your practice may not want to appeal the decision, but you learn that the directly involve workers’ compensation, these recording device used at the trial failed, so there is changes will likely impact your colleagues, your no transcript. You appeal anyway, as the statutes business clients, the insurance carriers that you allow you to do so based on a synopsis. However, work for, the ALJs whom you appear before, and the appeal that you bring is directed to the judge’s the entire circuit court system. supervisor, who affirms the decision. The Two Proposals: Elimination of the LIRC You are now faced with the following unappealing and Elimination of Court Reporters choices: appeal to a higher court with an unfavorable standard of review, which will cost additional time On February 8, 2017, Governor Walker introduced and resources, or settle this defensible case for his proposed 2017-2019 Biennial Budget. As you more than it is worth. To compound matters, the may recall, the last state Budget Bill also contained next level of appeal requires a transcript, so now it major modifications to the workers’ compensation is uncertain whether you even have an appropriate system. record for your appeal due to the faulty recording. The result is unthinkable: you may now have to The current proposed budget contains two proposals retry your case from the beginning. that would substantially and detrimentally change the workers’ compensation system. The two Your defensible case has now mushroomed into a pertinent provisions are: 1) the elimination of the litigation nightmare due to factors outside of your Labor and Industry Review Commission (the LIRC) control: 1) the lack of a transcript and 2) the lack and 2) the elimination of statutorily-mandated court of a knowledgeable and meaningful appellate reporters at workers’ compensation trials.

4 A Brief History of the Wisconsin Workers’ the cases may be heard over the course of several Compensation System days and often involve exposures of six or seven figures. To fully understand the ramifications of these proposed changes, one must understand a bit The litigation side of the workers’ compensation of the history behind the system. The workers’ system was previously part of the Division of compensation system in Wisconsin has existed Workforce Development (DWD). As a result since 1911. It was the first of its kind in the nation. of the 2015-2017 Budget Bill, in 2016, a new The workers’ compensation system is based on agency was created to house the judicial side of the the “Grand Bargain” between employers and workers’ compensation system: the Department labor. The aim was to provide rights and benefits of Administration (DOA), Division of Hearings & to employees in a no-fault system while protecting Appeals (DHA), Office of Workers’ Compensation employers from tort claims and the uncertainty of Hearings (OWCH, also called “the Division”). The jury trials.1 There are no pain and suffering awards ALJs who preside over workers’ compensation in workers’ compensation; damages are based on trials are part of this system. Their supervisor is statutory provisions that outline the value of the the Administrator of the Division of Hearings and varying body parts. There is also no reduction for Appeals (currently Brian Hayes). contributory negligence.2 Under the current system, if an ALJ decision Historically, changes to the workers’ compensation is appealed, the Labor and Industry Review system were vetted by the Wisconsin Workers’ Commission (the LIRC) is the first level of appeal. Compensation Advisory Council. The Advisory The LIRC’s primary duties are to decide appeals Council is comprised of five representatives from of decisions issued by ALJs in three areas: 1) management, five from labor, and three non-voting workers’ compensation; 2) unemployment; and 3) insurance members. The goal of the system was to equal rights. maintain stability within the workers’ compensation system without regard to political changes. This The LIRC is comprised of three members who are balance has produced a system that is envied by appointed by the Governor, subject to confirmation other states: Wisconsin has swift return to work by the state senate, and who serve staggered six timeframes, access to quality health care, low year terms. The LIRC is an independent agency of and stable workers’ compensation premiums for the State of Wisconsin. Though it was previously insurers, and low litigation rates. The Wisconsin “attached” to the DWD for administrative purposes, system is a source of pride for its members. In the LIRC has been part of the DOA since the 2016- fact, the collaborative nature of the system and its 2017 changes. stability are referenced on the state’s website.3 The LIRC reviews the evidence from the workers’ Prior to 2015, changes to the system were generally compensation trial, considers any briefs submitted handled through legislation, as opposed to the by the parties, consults with the ALJ if the credibility budget process. However, the changes in the 2015- of a witness is in question, and issues a written 2017 Budget Bill were not run through the Advisory decision. Currently, the LIRC can affirm, reverse, Council prior to their introduction, and the changes or modify the decision of the ALJ, or direct further in the current budget proposal have not been either. proceedings.

Workers’ compensation cases are first heard by The LIRC’s standard of review is currently de an Administrative Law Judge. While they are novo; it is not bound by the ALJ’s findings of fact called “hearings,” the proceedings are essentially or conclusions of law. Rather, the LIRC provides shortened, streamlined trials. There is no jury, but an independent review of the evidence and makes factual findings.

5 The LIRC has substantial expertise in understanding review of administrative decisions and interpreting the Workers’ Compensation Act relating to workers’ compensation by and provides guidance to the rest of the system. the administrator of the Division of Prior LIRC decisions are not binding on the LIRC, Hearings and Appeals and provides for but are persuasive authority. The LIRC’s decisions administrative review of administrative are available on Westlaw and select opinions are decisions relating to UI and discrimination available on the LIRC’s website. The decisions are by the respective administrator of the used by the stakeholders to help provide guidance division in DWD that administers the law and predict outcomes throughout the system. in question.

According to the LIRC’s published statistics, in If this budget proposal is accepted, workers’ 2015 it received 214 appeals, issued 230 decisions, compensation appeals would be directed to one and had 104 cases pending at the end of the year.4 individual: the Administrator of the Division of Hearings and Appeals. The Administrator is actually Appeals of the LIRC’s decisions are decided by the supervisor of the ALJs. Consequently, under this the circuit court in the county where the plaintiff proposal, the first level of appeal would be heard by resides, unless the plaintiff is a state agency. In that the direct supervisor of the ALJ who heard the case, instance, it is the county in which the defendant as opposed to an independent panel. Importantly, resides.5 The circuit court has a deferential standard there does not appear to be any additional staff or and will uphold the LIRC decision if there is any budgetary outlay for the additional workload being “credible and substantial evidence” to support it. placed on the Administrator. Barring a legal issue, the circuit court generally upholds the factual and credibility findings of the Another notable change is that, unlike in the current LIRC. system, the budget proposal does not give the Administrator the right to reverse an ALJ’s order. 1. Proposed Elimination of the Labor and Rather, the Administrator would only be able to Industry Review Commission affirm, modify, or remand the decision back to the ALJ in question. Under the proposed budget bill, the entirety of the LIRC would be eliminated. The basis for the The proposal also includes language that indicates proposed change is unknown. The full text of that the “findings of fact” by the “examiner” this proposal is available online,6 but the pertinent (presumably the ALJ)7 “shall, in the absence of language is as follows: fraud, be conclusive.”8 Consequently, the ALJ’s decision would have more weight under the Under current law, the Labor and Industry proposed system. Review Commission (LIRC) reviews administrative decisions of DWD relating The proposals have created a number of serious to unemployment insurance (UI) and questions and concerns throughout the workers’ discrimination in employment or in compensation community. There are logistical equal enjoyment of places of public questions of how the review process will actually accommodation (discrimination) and work. It is also not clear whether additional staff reviews administrative decisions of the would be provided to the Division Administrator Division of Hearings and Appeals relating to assess these appeals. If not, the system could to workers’ compensation. Review by face new challenges of a heavy caseload with fewer LIRC is a prerequisite to any judicial resources. review. This bill eliminates LIRC and instead provides for administrative

6 7 Further, these changes could drastically change the 2. Proposed Elimination of Court Reporters way Wisconsin cases are handled, particularly by and the Adoption of Recording Devices respondents. Under the current system, most cases resolve at either the ALJ level or at the LIRC. If The Governor’s proposed 2017-2019 budget the budget proposal is adopted and the Division would also eliminate the use of court reporters at Administrator is deferential to the ALJs’ decisions, workers’ compensation trials and replace them the new system would likely result in more appeals with recording devices.9 As with the proposed to the circuit court. This would be a major change. elimination of the LIRC, the impetus for this Consequently, respondents may find themselves proposal is unknown. Likewise, no information has playing the long game, anticipating appeals three been provided about the proposed recording system steps or more ahead of the ALJ’s decision. This or its implementation. translates into increased defense costs and a longer timeline to case resolution. Notably, the Wisconsin workers’ compensation system is funded by the stakeholders. As such, Additionally, circuit court judges may find taxpayer savings are not a factor in whether the themselves addressing workers’ compensation cases workers’ compensation system can afford court far more often than they previously have. Based on reporters. data from past years, this could result in the circuit court system hearing an additional 200 workers’ Currently, court reporters are statutorily required at compensation cases per year. It may also lead to workers’ compensation trials. Parties have the right parties deciding to “test the system” and appeal to request a copy of a hearing transcript. Also, while more cases to circuit court than they previously there is no requirement that transcripts be prepared have, which could increase this figure. for appeals to the LIRC,10 many parties choose to order the trial transcript, and they retain the right to The proposal is silent on what would happen to the do so at a later date. body of case law from the LIRC over the past 100 or more years. It is possible that this proposal could Many states require the attendance of court eliminate that precedential history, which would reporters at workers’ compensation trials. Based lead to uncertainty within the system. on informal state surveys, at least 23 states require their appearance.11 The stakeholders can expect several impacts if this budget proposal is adopted. Insurers are likely to Court reporters at workers’ compensation trials see the cost of handling claims increase due to less serve an invaluable function. Just like the court certainty in the system. Further, an increase in the reporters in circuit court, they help maintain the frequency of appeals will lead to increased defense orderly process of trials.12 In fact, the court reporters costs. Wisconsin businesses would likewise be in workers’ compensation cases act both as court affected in the form of insurance premium increases. clerks and court reporters. They mark and control This could also create long-standing instability: exhibits, transcribe testimony, keep the parties’ The makeup of the LIRC was structured to make testimony as clear and accurate as possible, and it an independent body that was insulated from help maintain the official case record. Obviously, a political changes. Adoption of the proposals could recording device cannot handle these tasks. cause the workers’ compensation system to become susceptible to partisan swings, resulting in further Instead, these responsibilities will likely be put on uncertainty for stakeholders on both sides. the presiding ALJ, whose primary role currently is to make credibility assessments and weigh evidence. The new proposals will likely force the ALJs to carefully monitor the recording process and

8 protect the record, in addition to performing their the parties unless a transcript is requested. Further, official duties and maintaining order. This would no taxpayer money is funding this system—the never happen in the circuit court system and should stakeholders bear the cost through their assessments. not in the workers’ compensation system either. It is asking too much of one person to require them to While the parties to a workers’ compensation case do handle all of these conflicting responsibilities. pay to order a transcript under the current system, it is far less expensive than if a private court reporting Additionally, even with a recording, the audio from company were employed. Anecdotally, the cost of the trial will likely still have to be typed if the matter two copies of a 68 page transcript (roughly 2.5 hours is appealed. Parties could end up worse off than of testimony) has been about $180. The cost of a before. Although there may be a typed record of an deposition transcript of similar length in a personal audio recording, it would likely be a less accurate injury case in the circuit court system is more than record due to the lack of a court reporter monitoring $450. In sum, it is difficult to see how cost can be the process and protecting the record. a factor in the proposal to eliminate court reporters from the workers’ compensation system. Further, all of this assumes that the recording device has in fact recorded the proceedings and that Conclusions the audio is audible and complete. An incomplete or inaccurate record could also impact the parties’ Adoption of either of the two proposals outlined ability to appeal and could result in due process in the budget will have a significant effect on the challenges. workers’ compensation system and beyond. If both provisions are adopted, it could result in the circuit Not only that, but no information is available as to courts hearing more workers’ compensation matters the type of recording devices to be used under this with less accurate records than ever before. budget proposal or how they would be implemented or maintained. It is unclear whether parties could Preliminary discussions indicate that practitioners choose to hire private court reporters to appear at and the stakeholders are not in favor of either of the workers’ compensation trials. If they could, these changes and are concerned about the effects there are questions regarding whether the transcripts that they will have on the workers’ compensation would be accepted as part of the official record. system.

Questions also remain about whether this proposal The WDC Executive Board is monitoring these would violate the due process rights of the parties changes as they develop, as is our lobbying firm, involved in these cases. Notably, current statutory Hamilton Consulting. We are also in the process provisions require that court reporters be present of forming a workers’ compensation committee to at the workers’ compensation trials. Further, a help monitor and address these and other issues in transcript is required for appeals to the circuit the workers’ compensation system. If you or your court.13 The budget bill does not speak to or alter colleagues would like to be part of this committee, these requirements. please contact me at [email protected] or (608) 259-2306. The elimination of state-employed court reporters could significantly increase the cost to the If you have questions or concerns regarding the stakeholders in the workers’ compensation system. issues outlined above, our initiatives, or Wisconsin Under the current system, the Division employs Defense Counsel in general, please feel free to seven court reporters. There are also contract contact me. I look forward to seeing you at the reporters who are used in some instances. These Spring Seminar at the American Club on April 20th reporters travel to hearing sites and transcribe and 21st! workers’ compensation trials. There is no cost to

9 10 Laura Lyons is the President of the Wisconsin References Defense Counsel. She is a shareholder at Bell, Moore 1 See Thomas Domer & Charles Domer, Wisconsin & Richter, S.C., located in Madison, Wisconsin. Workers’ Compensation Law (West 2016-17), for a more comprehensive summary of the history of the Wisconsin Laura has a statewide practice, representing and system. advising clients in a variety of areas, including 2 There are reductions for certain infractions, such as civil litigation defense and workers’ compensation. violating drug/alcohol policies or violating safety policies. She has also handled appellate matters, including 3 https://dwd.wisconsin.gov/wc/legal/. appeals to the Labor and Industry Review 4 http://lirc.wisconsin.gov/pdf/2015%20STATS.pdf. 5 See Wis. Stat. § 801.50 for the proper venue in other Commission and the Wisconsin Court of Appeals. circumstances. She is admitted to practice in Wisconsin and before 6 http://doa.wi.gov/Documents/DEBF/Budget/Biennial%20 both the Eastern and Western U.S. District Courts Budget/2017-19%20Executive%20Budget/ab64. of Wisconsin. pdf. The budget brief can be found here: http://doa. wi.gov/Documents/DEBF/Budget/Biennial%20 Budget/2017-19%20Executive%20Budget/17-19%20 Laura is a member of the Dane County Bar BIB%20FINAL%20revised%2002082017.pdf. Association, the Wisconsin Association of Workers’ 7 The statutory language says “examiner” instead of an ALJ. Compensation Attorneys (WAWCA), the Defense The intent and effect of the language is currently unknown. Research Institute (DRI), and the State Bar of 8 http://doa.wi.gov/Documents/DEBF/Budget/Biennial%20 Wisconsin. She is also a barrister in the James E. Budget/2017-19%20Executive%20Budget/ab64.pdf. 9 For more information on these changes, please see the Doyle Inns of Court. recent article published by the Wisconsin State Bar’s publication “Inside Track,” available at: http://www. Laura and her husband live in Madison. She has wisbar.org/NewsPublications/InsideTrack/Pages/Article. been a Big Sister in Dane County’s Big Brothers aspx?Volume=9&Issue=3&ArticleID=25357. Big Sisters program since March 2006. Laura also 10 See Wis. Admin. Code § LIRC 1.04. 11 This total is based on data compiled by an information poll volunteers as a coach for the Millennium Soccer of DRI members and WILG, the national bar for applicants’ Club, which brings affordable and accessible attorneys. organized youth soccer to Madison’s low-income, 12 For those unfamiliar with the civil system, in circuit court, ethnically diverse neighborhoods. In her free time, the state provides court reporters at trial and during motion she enjoys spending time with her family and hearings. Parties may order a transcript at their own cost. Also, parties contract with private court reporters for friends, running, reading, and playing soccer. deposition testimony that is taken prior to trial. 13 Wis. Admin. Code § DWD 80.14.

11 Trial Practice Series It Depends on the Twelve You Get: A Look at the Jury Selection Process by: William R. Wick and Katelyn P. Sandfort, Nash, Spindler, Grimstad & McCracken LLP

Note on the “Trial to jury selection are as numerous as there are lawyers Practice Series”: This and courts. The law provides little specific guidance is the inaugural article about the standards and appropriate procedures, and in a new feature for it is evident that there is no formula or “cook book” the Wisconsin Civil approach to selecting a jury. Trial Journal, the “Trial Practice Series,” the There are many views on the purpose of voir dire brainchild of Bill Wick beyond mere selection of the jurors that will hear at the Nash Law Firm, a the case. The collateral purposes of voir dire are co-author of this article. many and varied. Some lawyers see voir dire as an In each upcoming issue, there will be an article opportunity to ingratiate themselves with the jury, on some aspect of trial and litigation practice. The others as a process for educating prospective jurors intention is to provide a practical view of common about the facts of the case, and many see it as a way to aspects of the litigation and trial process. WDC rid the panel of problematic jurors and obtain people members are invited to contact Bill or Andrew Hebl, who are likely to be favorable to their client’s case. the Journal Editor ([email protected]), to The scope of this Article is limited to the selection of suggest topics that may be of interest. jurors once they are in the courtroom.

Introduction The Applicable Law

Many lawyers view the jury selection process, The right to a trial by jury is guaranteed by the or voir dire, as one of the most important parts of United States and Wisconsin Constitutions and the the trial. Trial lawyers have been known to utter Wisconsin Statutes.1 The right to a jury trial may the phrase, “It depends on the twelve you get.” In be waived and may not be available if the jury fee other words, the outcome of a jury trial likely will is not paid. depend on the people who make the findings of fact—the jurors. You only have one opportunity Wisconsin Stat. § 805.08 deals with the qualification to make a first impression. In a trial, this occurs and selection of jurors. The statute requires the during voir dire. In addition to having a significant court to examine each person to determine if they impact on the outcome, the voir dire process is the are related by blood, marriage, or adoption to any first opportunity trial counsel has to interact with party or attorney, or have any interest in the case, the jury. The purpose of this Article is to discuss or if they have expressed or formed an opinion practical approaches to jury selection. about the case. The statute says that jurors “shall” be excused if they are “not indifferent.” The statute As a preface, the one constant in jury selection is the gives the parties the right to supplement the court’s lack of uniformity with how it is done. Approaches examination as to the qualifications of a juror. The

12 examination shall not be repetitious, or based on Control and Discretion of the Court hypothetical questions. Voir dire is conducted under the supervision of the Where Jurors Come From court and the exclusion of jurors is left to the discretion of the court. The court’s exercise of discretion in The procedure for selecting jurors and getting them conducting voir dire will not be disturbed unless it to the courthouse is set forth in Chapter 756 of the is abused or a rule of law is violated.3 The court Wisconsin Statutes. The process begins with the has the discretion to allow jurors to be questioned Department of Motor Vehicles preparing a list that collectively, individually, and/or individually includes names, addresses, the county, date of birth, out of the presence of other jurors.4 The court is race, and gender of persons who are licensed drivers granted discretion to determine the best method for and those who have received a state identification conducting voir dire.5 card. This list goes to the Office of the Director of State Courts. In preparing for voir dire, it is helpful to know the judge’s procedure for jury selection in advance. The Office of the Director of State Courts then Inquiry can be made at the pretrial conference about compiles a master list of potential jurors for use by how voir dire will be conducted. Some judges circuit courts of each county during the next year.2 prefer to personally voir dire the jury, leaving In compiling the list, other sources may be relied little questioning to the lawyers. Other judges will upon, including voter registration lists, lists of child ask questions to determine whether there are any support payers and payees, orders of approvals, statutory disqualifications, and then leave the bulk or licenses issued by the Department of Natural of voir dire to the lawyers involved. Some courts Resources. From the master list, a prospective list may limit the time for voir dire. It is also helpful to compiled by random selection is developed based know what information the court has available about on the number of potential jurors each clerk of court the background of the jurors and when and how the has requested for the coming year. information can be obtained. Counsel will also want to know the method and timing of asserting The clerk of court then mails a juror qualification challenges for cause. Some judges wish to have form and jury summons to each person on the list challenges for cause made at the conclusion of the of prospective jurors to form the jury array. From examination by counsel outside the presence of the the array, twelve days before a jury is needed, the panel. Others wish to have challenges raised at the clerk of court creates a jury venire by randomly time the foundation has been laid in the presence of selecting a sufficient number of prospective jurors the panel. The point is, judges vary greatly in their from the array. When a jury trial is to be held, the approach to voir dire. clerk randomly selects from the jury venire the number of jurors needed for trial. This is the jury Preparation panel. The panel is the jurors present for voir dire in a specific case. The panel includes enough jurors In an effort to be thoroughly prepared, trial lawyers for the selection process to allow for a jury of six or should attempt to learn as much about the prospective twelve persons and alternates, if necessary. jurors as they can prior to the jury selection process. This can be accomplished in a number of ways. The court is required to mail prospective jurors a qualification form to obtain information necessary The questionnaires obtained by the clerk of court to determine whether a person is qualified to serve. from the array may be available to counsel in The information in the form varies from county to advance. These questionnaires provide basic county. Sometimes these forms are made available demographic information, such as where the jurors to lawyers. The forms can be helpful in doing live, occupation, spouse’s occupation, children, and background research. distance from the courthouse. If the questionnaires

13 are available in advance, the procedure for obtaining With the ever-increasing emphasis on science-based them differs. decision making, jury consultants are being employed by counsel more and more. Jury consultants have Even if the questionnaires are not provided in been used to help develop a science-based approach advance, courts in some counties may still provide to jury selection, including a profile of favorable counsel with a list of potential jurors for the case in and unfavorable jurors. In addition, jury consultants advance of trial. The order in which the jurors will may participate in the voir dire process by observing be selected may also be provided. body language and assessing responses to determine if jurors’ responses would put them in the favorable Finally, some courts provide no information about or unfavorable category. The use of jury consultants the jurors in advance. In that circumstance, the is usually limited to large, high profile cases. Jury first portion of the voir dire usually involves having consultants can also help develop the criteria each juror state their name, where they live, their necessary for a favorable juror, help identify hidden occupation, spouse’s occupation, whether they have biases, and assist in pretrial research. children, and if they have hobbies. Identifying Juror Attitudes If the names of potential jurors are known, Internet searches may be done. These may include searches In many ways, jury selection is more art than science. for information on Facebook, Twitter, LinkedIn, The purpose of voir dire is to allow lawyers to assess Instagram, Google, and CCAP. This information and become acquainted with the beliefs and attitudes can give insight into the jurors’ likes, dislikes, and of potential jurors. The voir dire process may be activities, and can provide information that may be aptly described as de-selection rather than selection. useful in assessing the jurors’ attitudes, interests, The ultimate goal is to eliminate persons with life and activities. experiences that may result in a tendency to favor the opposition. On occasion, courts will use attorney-drafted questionnaires specific to the case to additionally Juror selection has traditionally been based screen prospective jurors. These questionnaires can on stereotypes and anecdotal information. be fairly extensive and their use is usually limited Generalizations, such as women will be harder on to major cases where the potential jurors are likely women, young persons will be more favorable to to know parties or witnesses, or where there has other young people, and heavy people are more been extensive pre-trial media coverage. When forgiving, have been used. Traditionally, jurors who questionnaires are used, the usual procedure is to have been felt to be more favorable to the defense are have counsel submit proposed questions to the those who are older, educated, own businesses, are court, who decides on the content, and then the court working, have family ties, and have not previously sends the questionnaires to the prospective jurors been involved in a lawsuit. Those who anecdotally with a request that the questionnaires be completed have been considered to be more favorable to the and returned. This is usually done at the expense plaintiff are those who are young, liberal, and those of the parties. The completed questionnaires are who have previously suffered injuries. It has been made available to counsel for review and, frequently assumed that juror occupations that defendants may at the pretrial conference or in advance of trial, a wish to avoid include doctors, lawyers, teachers, conference is held to eliminate jurors for cause or clergymen, social workers, and counselors. One by stipulation based on the responses. The jury may think that a person in the same profession or questionnaire can generally encompass most of the occupation would favor a similar profession or questions that counsel are likely to ask during the occupation. However, that assumption may not be voir dire process, subject to specific follow-up. accurate. Professionals or workers in a field may have their own way of doing things that may not be

14 15 the same as the professionals or workers involved in An additional function of voir dire is to identify the case, and these jurors may end up having greater potential jury leaders. It is useful to attempt to influence during deliberations due to their perceived identify jurors who may be influential and what familiarity with the issues. attitudes they are likely to have. For example, in cases involving medical or financial issues, health That said, although anecdotal or stereotypical care professionals may have disproportionate beliefs regarding demographics are not necessarily influence during deliberations. The same will go to be disregarded, selecting jurors solely based on for accountants, bankers, or bookkeepers in cases them is probably imprecise, at best. Instead, the involving financial matters. Whether having a leader current trend in jury selection is to be more science- on the panel is desirable or not will depend upon the based and emphasize the psychological factors that facts and circumstances of the specific case. influence decision making. It is reported that jurors develop a hypothesis early on, process information Examination of Jurors to prove that their hypothesis is correct rather than incorrect, and give preferential treatment to evidence When beginning voir dire, most counsel will and testimony supporting their pre-existing beliefs. introduce themselves. Often, the jury is then advised This is known as confirmation bias. Basically, it that the term “voir dire” is French for “to speak the means that jurors, like all people, have a tendency truth.” The jury may be told that the purpose of to hear only those things that tend to support their voir dire is to obtain people to decide the case that pre-existing views and disregard the rest. Thus, voir are indifferent, who have no bias or prejudice, are dire should be directed to learning about the pre- not favoring or “leaning” toward one side, and who existing beliefs and attitudes of jurors. will put all of the parties “on a level playing field.” Counsel usually state that the goal is to obtain fair Demographic factors alone do not confirm bias.6 and impartial jurors without invading their privacy Thus, information about a juror’s personal and while doing so. The jury is told that the purpose of emotional commitment to circumstances that are voir dire is to learn of any personal experiences that relevant to the case should be used in the selection will cause the jurors to have a tendency to favor one process. The juror’s personal experiences with side over the other. issues similar to those in the case may show favorable or non-favorable attitudes. Questions When counsel is questioning the panel, the preferred directed to experience in circumstances similar to approach is for collective questioning of the group those in the case may reveal attitudes and emotional with follow-up questions to individual jurors based commitments that indicate bias. For example, a on the responses. Less commonly, some judges juror’s experience in dealing with significant injuries may allow individual voir dire of each juror absent or suffering and/or death involving infants, children, a collective question being asked first. Counsel’s adolescents, or parents will provide insight into bias questioning to the prospective jurors may take the for one party or the other in personal injury cases. form of a general question such as, “Have you Thus, to delve into the potential for confirmation ever been involved in a lawsuit?” The follow-up bias, the jurors should be asked collectively about an questions to individual jurors who give positive experience similar to the facts of the case and then, responses may then include asking about the type for jurors who have had such an experience, whether of suit, whether it was resolved successfully, and that experience will cause the juror difficulty or raise whether the experiences caused the person to be a degree of concern for a person similarly situated, biased. such as the plaintiff. Sometimes, observations of personality and interaction with other jurors, Counsel may also ask if a juror has an aversion to and simply observing the juror’s demeanor during dealing with a particular topic, such as pain of death, questioning, can provide meaningful information viewing graphic photographs, or dealing with certain about that juror’s likely predispositions. conditions or injuries. For particularly sensitive

16 17 issues, such as dealings with alcohol, drug addiction, discretion of the court. Questions should be asked sexual assault, significant injury or death of loved that are relevant to determine whether a particular ones, or any specific experience that may have had juror will be unbiased with regard to the specific an impact on prospective jurors that would cause issues in the case. them to exhibit some form of favoritism, counsel may ask the court to ask the questions instead, as Questioning the Panel it is believed that a more truthful response may be given to the court than to counsel for the parties in If general questioning is employed, questions may such circumstances. An additional benefit of having be directed to the generic “you.” The panel should the court ask these types of particularly difficult or be advised that “you” includes the juror, his or her intrusive questions is that none of the parties ends up family, i.e., husband, wife, children, grandchildren, getting “punished” for asking them. That is, difficult parents, brothers, sisters and in-laws, and close or intrusive questioning of jurors by counsel for personal friends. The attorney usually introduces one of the parties may cause the jury to develop a himself and members of his firm. Often, judges ask negative impression of that attorney or party due to counsel to identify the witnesses likely to be called a perceived invasion of the juror’s privacy. Having in order to find out if any of the jurors know any of the court ask these types of questions instead may the witnesses and whether this will raise potential help to reduce or eliminate this concern. biases. Inquiry may then turn to the following subjects: Safe questions such as “can you follow the court’s instructions?”, “will you be fair?”, and/or • Experience with the legal system “can you keep an open mind until the end of the ––Prior jury service trial?” are questions that will rarely get a negative response, and may not be particularly informative • Foreperson in identifying problematic panel members. Jurors, • Criminal versus civil like any people, want to believe that they are fair • Outcome of the case and impartial. Instead, questions that tend to elicit evidence of potential confirmation bias will be more ––Party to a lawsuit helpful. ––A witness ––Legal training (attorney, paralegal, judge, The statute prohibits hypothetical questions. bailiff, clerk, etc.) “Hypothetical” is not defined. The court has wide discretion in determining if a question is, in fact, • Legal procedures hypothetical. The determination may be a matter of ––Order of presenting evidence semantics. A question asking if a juror is willing ––Burden of proof to award $100,000 for a broken leg is likely to be • Experience with claims considered objectionable, but a question asking if the juror has a maximum damage amount that will ––Making a claim not be exceeded for a broken leg will probably not ––Claim made against you be considered objectionable. ––Bad experience with a claim (insurance company, claim adjustment, lawyer) Additional questions that are objectionable include those that are misleading, that misinform, that ––Whether it was resolved to your ask for a pledge, or those that incorrectly state the satisfaction law. However, there are no specific guidelines to determine what questions are objectionable. Ultimately, the determination rests with the sound

18 • Experience with the subject matter of the A question that lacks formality may be used to obtain lawsuit information about jurors’ attitudes without prying, such as, “Have you placed a bumper sticker on your ––Involvement in similar situations (auto motor vehicle, and if so, what does it say?” Such a accident, construction project, etc.) question can give significant insight into the person’s ––Types of injuries or damages attitudes without being overly intrusive. Another ––Witnesses to be called example is to ask the juror if he or she would want • Investigation experience, i.e., law himself or herself as a juror if he or she was in the enforcement, insurance adjuster, etc. position of the plaintiff or the defendant. The jurors may be asked if there is any reason why they cannot • Attitude toward legal resolution of disputes devote their full attention to the evidence presented. ––Lawsuit is an improper way to resolve a dispute Disqualifying Jurors ––Frivolous lawsuits Jurors are required by statute to be indifferent. • Attorney advertising The requirement is considered unconditional and ––Defense counsel does not and plaintiff mandatory.7 If a juror is not indifferent, the juror does shall be excused. Whether a juror is dismissed for 8 ––Effect of plaintiff’s ad cause rests with the sound discretion of the court.

• Media influence, i.e., portrayal of lawyers Initially, for a juror to be qualified, he or she must and litigation in movies, books, and on TV be eighteen years of age, a United States citizen, • Experience in any profession involved in and able to speak the English language. A convicted the suit felon cannot serve unless his or her civil rights have ––Medical been restored. The court has discretion to excuse jurors for undue hardship, extreme inconvenience or ––Construction serious obstruction, or delay in the fair and impartial ––Engineering administration of justice. ––Economics Jurors may be excused for one of the three forms of ––Accounting bias. These are identified by the Wisconsin Supreme • Attitudes toward liability Court in State v. Lindell as statutory bias, objective ––Bad things can happen to good people bias, and subjective bias.9 ––There can be injury or defect without fault Statutory bias occurs when a member of the panel ––Negligence or fault may have no bearing is related by blood, marriage, or adoption to any on the outcome party or any attorney appearing in the case, or has ––If a lawsuit is commenced, the plaintiff a financial interest in the outcome of the lawsuit. A should recover potential juror meeting any of these criteria must be • Damages struck from the panel, regardless of whether he or she can be impartial.10 ––Causation (not related as claimed) ––Fair and reasonable Subjective bias occurs when a prospective juror • Familiarity with other members of the states that he or she cannot be fair and impartial. panel When a prospective juror says that he or she cannot be fair, or has a preconceived impression of what should occur, the juror is subjectively biased. When

19 20 a juror openly admits that he or she cannot be on the jurors’ disposition toward their client, when impartial or indifferent, the juror must be excused. the challenges are to be exercised is determined by the individual judge. Jurors may be challenged for Objective bias occurs when bias is inferred without cause if they are not indifferent, or if they show bias a precise admission of lack of impartiality. The or lack impartiality. focus is on whether a reasonable person in the position of the juror could be impartial. There are The judge’s standard of granting challenges for cause no magic words. Objective bias occurs when the may be more liberally applied early in the voir dire juror has a direct or personal connection with an and become more restrictive as the number in the important aspect of the case or holds a negative panel declines. Later on in the questioning, jurors predisposition to the justice system that prevents who wish to avoid service have typically become the juror from being fair and impartial. To make educated regarding the responses that will cause this determination, the court needs to consider the them to be excused, and the judge typically becomes facts and circumstances. Often, the decision is stricter about granting challenges as a result in order made more on how the bias is expressed, rather than to prevent truly indifferent jurors from avoiding precisely what is said. Objective bias is difficult to service by trying to suggest that they are not. assess because most people believe themselves to be fair and impartial. The rehabilitation of a juror is usually accomplished by the juror responding that any bias or prejudice Frequently, an attempt is made to rehabilitate the will be set aside, that the juror will be fair to both juror. The side favored by the juror’s bias or lack of parties, and that the juror will decide the case impartiality may ask questions to try to rehabilitate solely on the evidence. The appellate decisions the juror. When a juror exhibits some degree of do not set forth the criteria for excusing jurors for bias or favoritism, the judge will typically become cause with any specificity. The issue of a juror’s involved in the questioning. The question then freedom from bias is a matter within the discretion becomes whether the juror can put aside his or her of the court.11 Wisconsin law also provides that the experiences and be fair and impartial to both parties. court should grant challenges for cause whenever “it Frequently, the response to whether the panel may reasonably suspect that circumstances outside member can be impartial is “I think I can,” “I will try the evidence may create bias or an appearance of to be,” or “it may affect me but I am not sure.” For bias.”12 Ultimately, this is left to the trial judge. example, a panel member’s personal physician may be a key witness in the case, and the panel member Peremptory Challenges admits that the doctor’s testimony will be looked on with favor as a result, but the panel member also says Peremptory challenges are granted to each that he or she can be impartial in weighing opposing party to excuse jurors for any reason that is not testimony. Whether the juror has been rehabilitated discriminatory. They are distinct from challenges is then left to the judge’s discretion. for cause, discussed in the previous section, where prospective jurors are removed for recognizable bias Counsel can ask the court to excuse a potential juror or partiality.13 for cause. This occurs when the juror’s response demonstrates bias. As indicated before, the The exercise of peremptory challenges is where the procedure for exercising challenges for cause varies de-selection process discussed above is exercised. from court to court. Some judges prefer challenges Decisions are made based on the juror’s perceived for cause at the end of voir dire. Others want the attitudes, experiences, background, training, and juror to be challenged at the time that the lack of demeanor relevant to the issues in the case. The indifference is expressed. Although many lawyers decision is often more art than science. The ultimate believe that making a challenge for cause in the decision may be what is generally known as a “gut presence of the panel will have a detrimental effect feeling.”

21 The statute allows three peremptory challenges to of the American College of Trial Lawyers. He has each party. Plaintiffs are deemed to be one party, also been President of the Wisconsin Chapter of and all defendants are deemed to be the other party. the American Board of Trial Advocates (ABOTA). However, where there are two or more defendants He has also been selected to be included in Best with adverse interests, additional peremptory Lawyers in America for the last ten years. Mr. challenges may be allowed in the discretion of the Wick is a frequent lecturer on topics involving civil court, not exceeding three for each defendant. Where litigation. alternate jurors are used, one additional peremptory challenge is granted for each alternate. Katelyn Sandfort is a member of the State Bar of Wisconsin, the Manitowoc County Bar Association, The jury selection process is ambiguous because and the Wisconsin Defense Counsel. She is licensed the “adversity” between parties necessary for the in the State of Wisconsin and in the Eastern and granting of additional peremptory challenges is Western District Courts. Katelyn’s practice not defined. Often, defendants may be adverse on covers an array of insurance defense litigation. liability issues but aligned on damages issues. There This includes, but is not limited to, personal is no statutory direction on the number of additional injury defense, construction defect litigation, and strikes given to the plaintiff when additional strikes coverage issues. She also has a special interest are given to the defendants. In a situation with two in representing health care providers in medical defendants and an alternate juror, courts will often malpractice lawsuits and licensing matters. In give the defendants four total strikes—i.e. two for her personal time, Katelyn enjoys cooking, trail each defendant—and the plaintiff four strikes. The bike riding, reading, and spending time with her procedure is for the parties to enter their strikes husband and two bernese mountain dogs. alternately, beginning with the plaintiff. References Conclusion 1 U.S. Const., Amendments 7 & 8; Wis. Const., art. 1, §§ 5 and 7; Wis. Stat. § 805.01(1). 2 Wis. Stat. § 756.04(2)(a). All in all, the jury selection process is based on 3 See State v. Moats, 156 Wis. 2d 74, 99, 475 N.W.2d 299 preparation, judgment, and experience. Success (1990); Hamill v. State, 89 Wis. 2d 404, 408, 278 N.W.2d may simply be the result of good luck. In the end, 821 (1979). the result of the trial depends on the twelve you get. 4 State v. Coke, 144 Wis. 2d 838, 847, 426 N.W.2d 586 (1988). 5 State v. Britt, 203 Wis. 2d 25, 32, 553 N.W.2d 528 (Ct. App. 1996). William R. Wick is a defense lawyer who 6 See William Kanasky, Jr., “Juror Confirmation Bias: concentrates his practice in the areas of medical Powerful. Perilous. Preventable.,” Trial Advocate Quarterly, malpractice and general personal injury litigation. at 34-37 (Spring 2014). He received his B.S. in 1970 from Carroll College, 7 State v. Ramos, 211 Wis. 2d 12, 27, 564 N.W.2d 328 (1997). his M.P.A. in 1972 from the University of Southern 8 State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990). California, and his J.D. in 1974 from Marquette 9 245 Wis. 2d 689, 740-46, 629 N.W.2d 223 (2001). University Law School. Mr. Wick was certified by 10 State v. Faucher, 227 Wis. 2d 700, 717, 596 N.W.2d 770 the American Board of Trial Advocacy as a Civil (1999). Trial Specialist. He is a member of the State Bar 11 Louis, 156 Wis. 2d at 478; State v. Holland, 87 Wis. 2d 567, of Wisconsin and a past chair of the Litigation 580, 275 N.W.2d 162 (Ct. App. 1978). 12 See Newburg v. State, 75 Wis. 2d 400, 404, 249 N.W.2d 524 Section. He has also been President of the Civil (1977). Trial Counsel of Wisconsin now known as the 13 Ramos, 211 Wis. 2d at 27. Wisconsin Defense Counsel. Mr. Wick is a fellow

22 In Seifert v. Balink, the Wisconsin Supreme Court Misses Its Chance to Clarify Daubert by: Ryan M. Wiesner and Brent A. Simerson, Leib Knott Gaynor LLC

Introduction brachial plexus injury—permanent nerve damage in his shoulder—caused by a shoulder dystocia during This January, the delivery.3 Shoulder dystocia is a life-threatening Wisconsin Supreme condition caused when an infant becomes caught Court issued its decision on the mother’s pubic bone during delivery and is in Seifert v. Balink, unable to travel through the birth canal.4 which represents the court’s first review of The plaintiffs’ case, like all medical malpractice the standard for the actions, hinged on expert testimony.5 They retained admissibility of expert Dr. Jeffrey Wener, an OB/GYN with over 36 years testimony since the of experience providing prenatal and labor and legislature amended Wis. Stat. § 907.02 in 2011 to delivery care, to provide several opinions critical of adopt the federal Daubert standard.1 The court’s Dr. Balink.6 Dr. Wener’s most crucial opinion was decision is a mosaic of opinions, but unfortunately that Dr. Balink failed to perform necessary testing lacks a majority decision that provides a framework to confirm that Kimberly had gestational diabetes, to assist trial courts and litigators facing similar a risk factor for shoulder dystocia.7 Dr. Balink, to issues in the future. Four justices penned opinions— test this condition, performed a one-hour glucose Justice Shirley Abrahamson (joined by Justice Ann screen and ruled out gestational diabetes based on Walsh Bradley) drafted the “lead” opinion (which, Kimberly’s result of 131 mg/dl.8 Dr. Balink relied despite its title, is only a two-justice opinion and on standards promulgated by the American College does not contain the rationale of even a plurality of Obstetricians and Gynecologists (ACOG) in of the court), Justice Michael Gableman (joined making this decision. The ACOG standards stated by Chief Justice Roggensack) and Justice Annette that a normal glucose level is 130 to 140 mg/dl, Ziegler contributed concurrences, and Justice and recommended a three-hour test if levels were Daniel Kelly (joined by Justice Rebecca Bradley) higher.9 Dr. Balink relied on the 140 number and issued a dissent. The decision ultimately represents believed further testing was not needed.10 a missed opportunity to clarify the Daubert framework in Wisconsin. Dr. Wener testified that Dr. Balink should have performed the three-hour test because Kimberly’s Background Facts glucose level exceeded 130 mg/dl, the standard he personally used throughout his practice as an OB/ The plaintiffs, David, Kimberly, and Braylon Seifert, GYN.11 He opined that, had Dr. Balink performed sued Dr. Kay Balink, a family practice physician, this additional test, she would have confirmed claiming that Dr. Balink provided inadequate care that Kimberly had gestational diabetes, and that to Kimberly during her pregnancy and the labor such a diagnosis, coupled with Kimberly’s weight and delivery of Braylon.2 Braylon was born with a and the size of the fetus, would have indicated a

23 serious risk for shoulder dystocia.12 Dr. Wener also Justice Abrahamson relied on several federal circuit opined that Dr. Balink should have ordered a pre- court decisions distinguishing medicine from other labor ultrasound and avoided the use of a vacuum fields of “scientific knowledge,”23 and concluded device to assist with delivery.13 The jury returned a that “medicine is not a science but a learned verdict for the plaintiffs, finding that Dr. Balink had profession, deeply rooted in a number of sciences breached the standard of care in her management and charged with the obligation to apply them for of Kimberly’s pregnancy and Braylon’s delivery.14 man’s benefit.”24 She believed that Dr. Wener’s opinions were reliable based on his extensive Dr. Balink’s attorneys had attacked Dr. Wener’s experience as an OB/GYN, and approved of his opinions as inadmissibly unreliable under Wis. “holistic” approach.25 Stat. § 907.02 (incorporating the Daubert standard) in pretrial motions, motions after verdict, and on Justice Ziegler authored a concurrence agreeing appeal.15 Each time, Dr. Balink’s attorneys had with the lead opinion only as to its bottom line argued that Dr. Wener’s opinions were not based on in what she termed a “close call.”26 She believed reliable principles or methods that had been tested the trial court made a good record and did not and generally accepted. Dr. Balink’s attorneys erroneously exercise its discretion when admitting argued that Dr. Wener’s opinions should be excluded Dr. Wener’s testimony.27 However, Justice Ziegler because they were instead based on Dr. Wener’s wrote separately to voice her concern with the lead own personal preferences for practicing medicine.16 opinion’s failure to address the 2011 changes to Wis. The trial court rejected Dr. Balink’s challenges Stat. § 907.02 and to provide guidance for future to Dr. Wener, finding that his “holistic” approach courts. She advocated for trial courts to “adhere was reliable, permitted him to testify, and upheld to and apply the heightened Daubert-Wis. Stat. § the admissibility of his testimony in motions after 907.02 standard.”28 verdict.17 The court of appeals affirmed, and the supreme court then accepted Dr. Balink’s petition Justice Gableman, joined by Chief Justice for review.18 Roggensack, concurred, joining the lead opinion’s bottom line finding that Dr. Wener’s opinions were The Supreme Court’s Several Opinions reliable based on his personal experience.29 He wrote separately to note that medical literature is not The supreme court was unable to put forth a required to support reliability and that experience is single opinion joined by four justices. Instead, sufficient if the expert shows how that “experience the court issued a two-justice “lead” opinion, two makes his opinions reliable,” which he believed Dr. concurrences (a two-justice concurrence and a one- Wener had accomplished.30 Justice Gableman’s justice concurrence), and a two-justice dissent. concurrence, like Justice Ziegler’s, advocated for at least some type of Daubert analysis based on the Justice Abrahamson, joined by Justice Ann Walsh reliability factors identified by the United States Bradley, authored the lead opinion holding that Dr. Supreme Court and other federal panels. Wener’s opinions based on personal experience were reliable under Wis. Stat. § 907.02 and Justice Daniel Kelly authored a dissent joined by Daubert.19 However, the lead opinion did not Justice Rebecca Bradley.31 The dissent agreed with approve of or adopt a test or framework based on the lead opinion’s holding that an expert’s personal the reliability factors enumerated by the Daubert opinions could still be considered reliable, but court20 or the Advisory Committee’s Note on disagreed that Dr. Wener’s opinions were admissible the 2000 Amendment to Fed. R. Evid. 702.21 in the specific case.32 Instead of focusing solely on Instead, Justice Abrahamson concluded that the the Daubert question, Justice Kelly couched his classic Daubert framework was unworkable when main conclusion in terms of the standard of care.33 assessing medical testimony because medicine is To prove medical negligence, Justice Kelly wrote not a hard science prone to a set-in-stone analysis.22 that the plaintiffs had to identify the applicable,

24 25 objective standard of care of a reasonable physician the 2000 Amendment to the Advisory Committee and show that the defendant’s conduct had breached Note. These additional factors include: that standard.34 Dr. Wener’s opinions, according to the dissent, did not constitute the accepted, objective 1. Whether experts are “proposing to testify standard of care of a reasonable family practice about matters growing naturally and di- physician, and instead represented only Dr. Wener’s rectly out of research they have conducted personal preferences for practicing medicine—i.e., independent of the litigation, or whether a “what would Wener do” standard (WWWD).35 they have developed their opinions ex- pressly for purposes of testifying”39; The Court’s Missed Opportunity to Clarify the 2. Whether the expert has unjustifiably ex- Daubert Standard in Wisconsin trapolated from an accepted premise to an unfounded conclusion40; The Seifert decision represents a missed opportunity for the justices to provide guidance to trial courts 3. Whether the expert has adequately ac- and litigators moving forward. The court’s ultimate counted for obvious alternative explana- 41 decision to admit Dr. Wener’s testimony should tions ; have been only a footnote in an opinion that 4. Whether the expert “is being as careful provided a framework for trial courts to use when as he would be in his regular professional assessing Daubert issues for years to come—even if work outside his paid litigation consult- only limited to factually similar medical negligence ing”42; and actions. 5. Whether the field of expertise claimed by the expert is known to reach reliable Daubert and Fed. R. Evid. 702 impute to trial courts results for the type of opinion the expert a “gatekeeper” function, requiring judges to confirm would give.43 the reliability of all expert testimony, whether based on “scientific, technical or other specialized Seifert was the Wisconsin Supreme Court’s first knowledge.”36 Trial courts are given broad opportunity to provide guidance to trial courts since discretion to make this call by using any relevant the Wisconsin Legislature adopted the Daubert combination of the myriad factors that have been standard in 2011. Prior to Seifert, the supreme court identified by the United States Supreme Court and had yet to weigh in on which of these factors, if any, the Advisory Committee.37 Those factors, which were appropriate to use to determine the reliability are fluid based on the facts and experts presented, of medical expert testimony. The Seifert decision, include: while providing a thorough overview of the Daubert framework as applied by various state and federal 1. Whether the methodology can and has courts, unfortunately does nothing to articulate been tested; a standard for Wisconsin trial courts, despite a 2. Whether the technique has been subjected majority of justices advocating for a heightened to peer review and publication; standard of admissibility.44 The decision, in total, 3. The known or potential rate of error of the represents a single-case review based on the specific methodology; and facts presented, rather than a decision that develops, clarifies, or harmonizes the law, which is the usual 4. Whether the technique has been generally purpose for supreme court review.45 accepted in the scientific community.38 The two-justice lead opinion foregoes applying Appellate courts faced with reliability issues have any Daubert factors to determine reliability. The taken it upon themselves to identify additional opinion states that “medicine is not a science” factors that they have found helpful, as identified by subject to a reliability analysis.46 However,

26 regardless of what adjective is used to describe Using Available Literature to Assess Reliability the practice of medicine, a Daubert analysis is still needed to confirm the reliability of medical expert The individual opinions generally touch on the testimony. The United States Supreme Court and use of literature in assessing reliability, with a the Advisory Committee have confirmed that Rule majority of the justices agreeing—rightfully so— 702 “does not distinguish between scientific and that medical literature is not required to render other forms of expert testimony”; rather, a “trial an expert’s opinions reliable under Wis. Stat. court’s gatekeeping function applies to testimony § 907.01.52 But the court did not expand on this by any expert.”47 While not all factors may apply holding to educate future judges and lawyers about to medical testimony—and different factors would the proper role of relevant medical literature in a undoubtedly apply to different medical fields—the Daubert analysis and, in particular, failed to offer court should have used its review as an opportunity any guidance regarding whether available literature to identify or create a framework for future courts from a respective organization or medical group to use to assess the reliability of medical expert should be used to assess whether an expert’s opinion testimony under Daubert. is generally accepted.

The only holding agreed upon by a majority of the Literature providing standards of practice can court was that an expert’s past experience can render be found in every major field of medicine.53 The his testimony reliable. This holding, though, is organizations behind the literature are focused nothing new; it is a staple of Daubert jurisprudence predominantly on educating clinicians in their recognized since the United States Supreme Court’s fields by providing guidelines and standards for 1999 decision in Kumho Tire.48 But the lead opinion the everyday practice of medicine.54 This literature in Seifert does not take this hornbook rule of law is undoubtedly useful in determining accepted to its needed conclusion—determining “how that practices and, therefore, is relevant when assessing experience leads to the conclusion reached, why the reliability of an expert’s opinions and testimony. that experience is a sufficient basis for that opinion, It is obvious that an expert’s opinion contrary to and how that experience is reliably applied to the accepted published standards should be scrutinized facts.”49 Answering this question undoubtedly more closely than testimony that conforms to those requires assessing the medical testimony in light of standards. the factors identified by Daubert and the Advisory Committee, including general acceptance and the In Seifert, the defense relied heavily on the reliability of specific methods.50 American College of Obstetrics and Gynecology’s standards for performing glucose testing.55 ACOG Justices Gableman and Ziegler were keen on this is a professional organization focused on producing assessment in their concurrences, with Justice “practice guidelines and other education materials” Gableman advocating for a rule in which an expert for practicing OB/GYNs.56 Its standards and must demonstrate the reliability of his personal “practice guidelines” are accepted in the obstetrics preference/methods and Justice Ziegler advocating field and followed by credentialed OB/GYNs across for a heightened Wis. Stat. § 907.02 standard.51 the country.57 The parties disputed the importance However, a majority of the justices simply could not of these standards, however, with Dr. Wener agree on any given approach. As things currently advocating for a 130 mg/dl threshold instead of the stand, trial courts and litigators are left with a non- 140 mg/dl level that was permitted by the ACOG binding holding that personal experience can render standards.58 medical testimony reliable—nothing more. The court acknowledged the ACOG literature and the parties’ contrary opinions as to glucose testing standards, but failed to incorporate the literature

27 28 into its holdings or to identify the role of this a single, for-pay expert whose sole purpose is to literature in assessing the reliability of the expert. criticize and discredit. The lead opinion implies While applying the literature in Seifert may not that medical experts should be permitted to testify have changed the outcome, it is hard to imagine about standard of care opinions based solely on a scenario where relevant and generally accepted their personal clinical methods or beliefs, instead guidelines and standards from prominent medical of identifying the standard of care that is generally organizations would not be useful in assessing the accepted in practice. reliability of medical experts—especially if an expert’s personal preference opinions are contrary Conclusion to those accepted standards. All in all, Seifert represents a missed opportunity for The “Standard of One” Problem the Wisconsin Supreme Court to provide guidance regarding the Daubert standard, particularly in the As discussed in Justice Kelly’s dissent, acceptance context of medical testimony. Unfortunately, it may of Dr. Wener’s personal preference opinions may be some time before the court issues a new opinion cause problems with the legal standard in medical on this topic. Hopefully, when that happens, the negligence actions. Medical malpractice turns court will at least be able to generate a majority on a plaintiff’s ability to identify the applicable opinion with insights into how the standard should standard of care and prove that the defendant’s care be applied by trial courts. For now, all we can do or treatment breached that standard.59 In terms of is wait. standard of care, a physician is only required “to use the degree of care, skill, and judgment which Ryan M. Wiesner and Brent Simerson are associates reasonable doctors [who practice the same specialty] with Leib Knott Gaynor LLC, a Milwaukee-based would exercise in the same or similar conditions.”60 litigation outfit specializing in defending complex The question is not what a single provider, or litigation in state and federal courts across the expert, would have personally done when treating county. Ryan and Brent focus their practices the plaintiff, but what objective physicians in the on representing hospitals, physicians, and other same field would do when treating like patients. Yet licensed professionals in catastrophic negligence the court’s lead opinion in Seifert could lend itself cases, and defending municipalities and their to the admission of personal preference opinions to employees in high-stakes civil rights litigation. prove a breach of the standard of care, and this is They also handle cases involving commercial and the result criticized by Justice Kelly’s dissent.61 business disputes, products liability, medical device litigation, and other complex torts. Ryan and Brent Justice Kelly recognized that, although Dr. Wener can be contacted at [email protected] and was qualified based on his personal experience, and [email protected]. For more information on able to render his opinions reliable based on the their practice and LKG please visit LKGlaw.net. same, the applicable legal standard in malpractice cases still required him to “be familiar with what References is generally expected of reasonably qualified 1 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816. practitioners under similar circumstances.”62 Dr. 2 See id. 3 Id., ¶¶ 3, 203. Wener did not identify such a standard, but rather 4 Id., ¶¶ 28, 203; see also http://www.emedicinehealth.com/ testified only as to his own practices, and in script/main/art.asp?articlekey=39656 (last visited March essence created a “standard of one” by which the 6, 2017). jury measured Dr. Balink’s care.63 This creates a 5 Carney-Hayes v. Northwest Wis. Home Care, Inc., 2005 WI troubling precedent, because a physician’s treatment 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524 (holding that plaintiff must present expert testimony to prove a health must be measured against the reasonable practices care provider’s breach of the standard of care). of his medical field, not the subjective beliefs of 6 Seifert, 372 Wis. 2d 525, ¶¶ 5, 40.

29 30 7 Id., ¶ 46. 42 Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 8 Id., ¶ 22. (7th Cir. 1997); see Kumho Tire, 526 U.S. at 149-50 9 Id., ¶ 127. (recognizing that Daubert requires the trial court to assure 10 Id. itself that the expert “employs in the courtroom the same 11 Id., ¶¶ 46, 127. level of intellectual rigor that characterizes the practice of 12 Id., ¶¶ 44, 46. an expert in the relevant field”). 13 Id., ¶ 271. 43 See Kumho Tire, 526 U.S. at 149-150 (recognizing that 14 Id., ¶ 9. Daubert’s general acceptance factor does not “help show 15 Id., ¶ 58. that an expert’s testimony is reliable where the discipline 16 Id., ¶¶ 37, 104, 133. itself lacks reliability, as, for example, do theories grounded 17 Id., ¶¶ 8, 102, 109, 120. in any so-called generally accepted principles of astrology 18 Id., ¶¶ 8, 14, 94. or necromancy”). 19 Id., ¶ 15. 44 Seifert, 372 Wis. 2d 525, ¶¶ 54, 169, 223. 20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 45 Wis. Stat. § 809.62(1r). 579 (1993). 46 Seifert, 372 Wis. 2d 525, ¶ 79. 21 Fed. R. Evid. 702, Advisory Committee Note, 2000 47 Daubert, 509 U.S. at 589-90; see also Kumho Tire, 526 Amendment. U.S. 137; Fed. R. Evid. 702, Advisory Committee Note, 22 Seifert, 372 Wis. 2d 525, ¶¶ 77-79. 2000 Amendment (emphasis added). 23 Id. (quoting Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 48 Kumho Tire, 526 U.S. at 147-151. 827, 834 (9th Cir. 2004)). 49 Fed. R. Evid. 702, Advisory Committee Note, 2000 24 Id., ¶ 79 (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th Amendment. Cir. 2010)) (relying on “classic medical school text,” Cecil 50 Kumho Tire, 526 U.S. at 151. Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. 51 Seifert, 372 Wis. 2d 525, ¶¶ 169-170, 194. Smith, Jr., eds., 17th ed. 1985)). 52 Id., ¶¶ 129, 194, 235, 240. 25 Id., ¶ 15. 53 See https://www.jointcommission.org; https://www.acr. 26 Id., ¶¶ 169-170. org; http://www.aaem.org; https://www.aap.org/en-us/ 27 Id. Pages/Default.aspx (last visited March 6, 2017). 28 Id., ¶¶ 169-191. 54 Id.; see, e.g., http://www.acog.org/About-ACOG/About- 29 Id., ¶ 192. Us (last visited March 6, 2017). 30 Id., ¶ 194. 55 Seifert, 372 Wis. 2d 525, ¶ 127. 31 Id., ¶ 258. 56 http://www.acog.org/About-ACOG/About-Us (last visited 32 Id. March 6, 2017). 33 Id. 57 Id. 34 See Wis. JI-Civil 1023. 58 Id. 35 Seifert, 372 Wis. 2d 525, ¶ 267. 59 Wis. JI-Civil 1023; Carney-Hayes v. Nw. Wis. Home Care, 36 Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524. 137, 141 (1999). 60 Wis. JI-Civil 1023; Jandre v. Wis. Injured Patients & 37 Kumho Tire, 526 U.S. at 141. Families Comp. Fund, 2012 WI 39, ¶ 95, 340 Wis. 2d 31, 38 Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 813 N.W.2d 627. 1999) (citing Daubert, 509 U.S. at 592-93). 61 Seifert, 372 Wis. 2d 525, ¶ 258. 39 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 62 Id., ¶ 268 (citing Francois v. Mohrohisky, 67 Wis. 2d 1311, 1317 (9th Cir. 1995). 196, 201-202, 226 N.W.2d 470 (1975) (“The standard to 40 See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) which [physicians] must conform … is determined by the (noting that, in some cases, a trial court “may conclude that practices of neither the very best nor the worst of the class. there is simply too great an analytical gap between the data Like automobile drivers, engineers, common laborers, and and the opinion proffered”). lawyers, they are obliged to conform to reasonable care in 41 See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) the circumstances.”)). (excluding testimony where the expert failed to consider 63 Id., ¶ 277. other obvious causes for the plaintiff’s condition).

31 “Direct,” “Indirect,” and “Convincing Mosaic”: The Four Forbidden Words in Seventh Circuit Employment Discrimination Cases by: David R. Friedman, Friedman Law Firm

The Seventh Circuit’s recent decision in Ortiz v. mosaic.” In making this change, however, the Ortiz Werner Enterprises1 is the source of the title of this court stated as follows: Article. Ortiz held that the evidentiary tests using the quoted words in deciding prior employment One point of clarification may be helpful. discrimination cases are no longer appropriate. The burden-shifting framework created Before addressing the Seventh Circuit’s treatment by McDonnell Douglas Corp. v. Green, of these problematic words, however, a quick 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d review of the burden of proof in employment 668 (1973), sometimes is referred to as an discrimination cases under Title VII will be helpful. “indirect” means of proving employment discrimination. Today’s decision does not Under the McDonnell Douglas Corp. v. Green2 concern McDonnell Douglas or any other framework,3 the plaintiff in an employment burden-shifting framework, no matter discrimination case bears the burden to produce what it is called as a shorthand.5 evidence sufficient to support a finding that: (1) the person is a member of a protected class; (2) The McDonnell Douglas method is not the only the person was meeting the employer’s legitimate method to assess circumstantial evidence in expectations; (3) the person suffered an adverse employment discrimination cases. In deciding employment action; and (4) similarly situated a summary judgment motion, for example, the employees who were not members of the protected question is whether the non-moving party has class were treated more favorably. If the plaintiff produced sufficient evident to support a jury finding establishes those elements, the employer must then of intentional discrimination. This method also articulate legitimate and nondiscriminatory reasons remains viable after the Ortiz decision.6 for the allegedly discriminatory action. If that happens, the burden then shifts back to the plaintiff Convincing Mosaic to show that the employer’s proffered reasons were mere pretext for its discriminatory motives. Pretext While the McDonnell Douglas method has to do with “means a dishonest explanation, a lie rather than an the burden of proof concept, the Seventh Circuit was oddity or an error.”4 concerned that in employment discrimination cases, trial courts often looked at the evidence as either Because of confusion over who had the burden “direct” or “indirect.” “Admissions of culpability of production, the burden of proof, and what was and smoking-gun evidence were assigned to the considered to be proof, the Seventh Circuit in Ortiz ‘direct’ method … while suspicious circumstances did away with the evidentiary tests that the courts that might allow an inference of discrimination in the circuit had been using based on so-called were assigned to the ‘indirect’ method.” 7 In “direct” and “indirect” evidence and a “convincing assessing this evidence using these methods, the Ortiz court’s criticism was that the district “court

32 did not try to aggregate the possibilities to find an is simply whether the evidence would overall likelihood of discrimination,” as it should permit a reasonable factfinder to conclude have.8 that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor In a prior attempt to eliminate the distinction between caused the discharge or other adverse “direct” and “indirect” evidence, the Seventh employment action. Evidence must be Circuit, in Sylvester v. SOS Children’s Villages of considered as a whole, rather than asking Illinois, Inc., had come up with a concept called whether any particular piece of evidence the “convincing mosaic.” The idea was that, like proves the case by itself—or whether a visual piece of art that is made up of little pieces, just the “direct” evidence does so, or the a plaintiff in a discrimination suit could combine “indirect” evidence. Evidence is evidence. pieces of evidence to prove discrimination.9 The Relevant evidence must be considered concept was meant to help people understand and irrelevant evidence disregarded, but the process, but never to be a standard of proof.10 no evidence should be treated differently However, the Ortiz court found that using the from other evidence because it can be disparate methods and the mosaic had complicated labeled “direct” or “indirect.”14 employment discrimination litigation, and decided that “[t]he time [had] come to jettison these Once again, the court overruled portions of cases diversions and refocus analysis on the substantive that used the “direct” and “indirect” framework, legal issue.”11 while at the same time reiterating its position that it was not changing the results of those prior To do this, the Ortiz court overruled previous decisions.15 Because Ortiz overruled two lines of opinions to the extent those opinions relied on cases, the opinion was circulated to all judges in the “convincing mosaic” as the governing legal active service, and no judge favored a hearing en standard.12 The court went on to emphasize that banc. it was not holding that the cases were wrongly decided; the court’s only concern was putting a stop Counsel practicing in employment discrimination to the use of the “convincing mosaic” as a legal test. would be well-advised to carefully study the Ortiz decision, as it is now the law in the Seventh Circuit. Warning to District Courts Indeed, the Ortiz decision has already been the basis for a summary judgment decision in the Western To emphasize that “convincing mosaic” is no longer District of Wisconsin.16 part of employment discrimination law in the Seventh Circuit, the Ortiz court said, “From now Impact on Lawyers on, any decision of a district court that treats this phrase as a legal requirement in an employment- Before Ortiz, it would be fair to say that lawyers, discrimination case is subject to summary reversal, and probably some judges, looked at the lack of so that the district court can evaluate the evidence so-called “direct evidence” in an employment under the correct standard.”13 discrimination case to mean that the plaintiff did not have the strongest case of discrimination. This left The Correct Legal Test Is Still Not the “Direct” the plaintiff turning to so-called “indirect” evidence, or “Indirect” Evidence Test, Either. or weak evidence, in trying to put together enough evidence to convince the trier-of-fact. Defense In putting an end to the “convincing mosaic,” the attorneys, among other things, would argue that Seventh Circuit in Ortiz also repeated what it had the lack of “direct” evidence showed that the other written in prior cases, such as Sylvester, that the test evidence put forward by the plaintiff was not that reliable.

33 34 For example, often a plaintiff would put forward as analysis [of an employment discrimination case] evidence the fact that the employer took an adverse is straightforward.”20 It will now be interesting action after the plaintiff undertook a protected to see if the court’s decision accomplishes its goal activity. This temporal relationship, without or simply creates another “nest,” or “pile,” to be more, was considered a type of weak evidence, or cleaned up in the future. It will also be interesting “indirect evidence.” “But it is well established that to see whether Wisconsin’s Equal Rights Division ‘mere temporal proximity between [the statutorily or our state courts will adopt this new analysis.21 protected activity] and the action alleged to have been taken in retaliation for that [activity] will David R. Friedman is a solo practitioner in Madison rarely be sufficient in and of itself to create a triable who has been working with Wisconsin public schools issue.’”17 and private employers on labor and employment law matters since 1973. He has made presentations In this circumstance, a defendant would try to show on labor and employment law topics to the National the weakness of each piece of “indirect” evidence, Association of School Boards, NSBA’s Council of that the various employer actions were isolated from School Attorneys, Education Law Association, each other, and that, once each item of “indirect” Wisconsin School Attorneys Association, State Bar evidence was thrown out, there was nothing left to of Wisconsin, and National Business Institute. For prove discrimination. a number of years, he taught a course in collective bargaining and contract administration as an The Ortiz court rejected these efforts to characterize adjunct professor at the University of Wisconsin- evidence as “direct” or “indirect,” holding instead Madison School of Education and at the University that “evidence is evidence. Relevant evidence must of Wisconsin-Whitewater in its School Business be considered and irrelevant evidence disregarded, Manager program. David is listed in Best Lawyers but no evidence should be treated differently from in America® and also as a Wisconsin Super other evidence because it can be labeled ‘direct’ or Lawyer. He is a member of WDC’s newly formed ‘indirect.’”18 A few paragraphs later, the court said Employment Law Committee. “all evidence belongs in a single pile and must be evaluated as a whole.”19 References 1 834 F. 3d 760 (7th Cir. 2016). Conclusion 2 411 U.S. 792 (1973). 3 See Madlock v. WEC Energy Grp. Inc., No. 16-CV-332- JPS, 2017 U.S. Dist. LEXIS 5358, at *14-16 (E.D. Wis. Despite its elimination of the “convincing mosaic” Jan. 13, 2017) (unpublished decision). and the distinction between “direct” and “indirect” 4 Kulumani v. Blue Cross Blue Shield Ass’n., 224 F.3d 681, evidence, the Ortiz decision still leaves a number 685 (7th Cir. 2000). of unanswered questions. For example, can each 5 Ortiz, 834 F.3d at 766. 6 See Celeste David v. Board of Trustees of Community piece of evidence be evaluated separately anymore? College District No. 508, ___ F.3d ___ (7th Cir. 2017) And, if so, when the evaluation is done, is the (decided January 13, 2017). evidence pulled from or kept in the “pile?” Further, 7 Ortiz, 834 F.3d at 763. does the amount and “relevancy” of the evidence in 8 Id. the “pile” in and of itself determine the end result? 9 Sylvester v. SOS Children’s Villages of Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006). Is the lack of a “smoking gun” to be considered 10 Ortiz, 834 F.3d at 764. “relevant” evidence, or even evidence at all? And, 11 Id. if the evidence is part of the “pile,” how is that 12 Hatcher v. Board of Trustees of Southern Illinois University, evaluated or valued against the other evidence? 829 F.3d 53 (7th Cir. 2016); Chaib v. State, 744 F.3d 974, 981 (7th Cir. 2014); Cloe v. Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013); Smith v. Bray, 681 F.3d 888, 901 As the court said, “with the rat’s nest of the surplus (7th Cir. 2012); Good v. Univ. of Chi. Med. Ctr., 673 F.3d ‘test’ removed from the law of the circuit, our 670, 674 (7th Cir. 2012); Silverman v. Board of Education

35 36 of Chicago, 637 F.3d 729, 734 (7th Cir. 2011); Phelan v. 16 See Balele v. Olmanson, No. 13-cv-783-jdp, 2017 U.S. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Koszola v. Dist. LEXIS 3258, at *19 (W.D. Wis. Jan. 10, 2017) Board of Education of Chicago, 385 F.3d 1104, 1109 (7th (unpublished). Cir. 2004); Rhodes v. Illinois Dep’t of Transp., 359 F.3d 17 Ripberger v. Corizon, Inc., 773 F.3d 871, 883 (7th Cir. 498, 504 (7th Cir. 2004); Cerutti v. BASF Corp., 349 F.3d 2014) (quoting Stone v. City of Indianapolis Pub. Utils. 1055, 1061 (7th Cir. 2003); Robin v. Espo Engineering Div., 281 F.3d 640, 644 (7th Cir. 2002)). Corp., 200 F.3d 1081, 1088-89 (7th Cir. 2000). 18 Ortiz, 834 F.3d at 765. 13 Ortiz, 834 F.3d at 765. 19 Id. at 766. 14 Id. 20 Id. 15 Andrews v. CBOCS West, Inc., 743 F.3d 230 (7th Cir. 2014); 21 Because the question of the order and nature of proof in Silverman v. Bd. of Ed. of Chi., 637 F.3d 729 (7th Cir. sex discrimination cases has not been addressed by the 2011); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487 Wisconsin Supreme Court, the Wisconsin courts generally, (7th Cir. 2007); Rhodes, 359 F.3d 498; Haywood v. Lucent and DILHR consistently, have applied the standards Technologies, Inc., 323 F.3d 524 (7th Cir. 2003); Oest v. developed by the federal courts in Title VII actions as set Illinois Department of Corrections, 240 F.3d 605 (7th Cir. forth in McDonnell Douglas. See, e.g., Waukesha Pub. 2001); Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78). Cir. 2000); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391 (7th Cir. 1997); Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984).

37 38 Tackling Your First Appellate Oral Argument by: Kathryn A. Harrell, Boardman & Clark LLP

Introduction potential date conflicts prior to the scheduling of oral argument.1 It is important that you know about Preparing for an appellate oral argument can be both this rule because the court is extremely reluctant to exciting and daunting, especially if you lack prior reschedule an argument after it has been noticed. appellate experience. While there is no method of Accordingly, once you know that oral argument preparation that works for everyone, using a few of has been requested and immediately after the reply the tips below may ease your stress. Undoubtedly, brief is submitted, you should write the court and you will get different advice from a number of alert it to scheduling conflicts you have over the attorneys. At the end of the day, you should create next several months. a plan that fits your comfort level. The best advice, however, is to be very prepared. Unquestionably, 2. Re-Read the Briefs and the Lower Court’s preparedness will give you the confidence you need Ruling. to tackle your first oral argument. This is a great starting point. Try reading the briefs 1. Plan Your Calendar. in order, which is likely the same way the judges on your panel will read them. It goes without saying It is important that you set aside sufficient time that, if you represent the appellant, review these to prepare for your argument. First timers may documents with an eye towards how the lower underestimate how much time it actually takes to court’s decision was incorrect. If you represent prepare, which may mirror that of preparing for a the appellee, review these documents with an eye jury trial. Depending on the complexity of your towards how the lower court got it right. case, you might need to set aside an entire week, including weekend. Also remember that, in all 3. Know the Record Inside and Out. likelihood, by the time oral argument is scheduled, you will have forgotten many of the factual and In many cases, the judges are more interested in legal details from the briefs that you will need to re- asking practical, record-related questions about the learn, and perhaps even re-learn at a level exceeding facts of the case, rather than legal questions. As such, what was required for you to write the briefs in the it is critical that you know your record extremely first place. well. You should also be keenly aware of what is not in the record so that you can promptly and Further complicating this is that oftentimes, you politely alert the court in the event your opponent will not receive much advance written notice of presents arguments based upon information not in when your argument will be scheduled, which can the record. make it difficult to set aside adequate preparation time. To ease this problem, the Seventh Circuit Court of Appeals requires counsel to notify it of

39 40 4. Prepare an Outline and Structure Your opponent. Completely ignoring your opponent’s Argument. argument is a mistake. Indeed, the judges may have trouble paying attention to your argument at all if Preparing and revising an outline at the beginning they are fixated on an elephant in the room which of your preparation has tremendous value. Most you have not addressed. It is also important to experienced appellate attorneys advise you to avoid address your opponent’s argument in order to show creating a word-for-word script, as you may get the judges that you can think on your feet. too bogged down in a rehearsed speech that you are not likely to get through anyway. However, 5. Prepare a List of Important Record Cites writing down a word-for-word script with respect and Cases. to some aspects of your case can make sense at the outset, and this may be a useful tool so long as you Many new attorneys may wonder whether they have abandon the script by the time of argument. This to memorize every case, with cites, that appears in is particularly true with respect to your opening the briefs. Generally, this is not necessary, although statement, which is often the most speech-like you should be prepared to state the applicable portion of your argument. When presenting, it standard of review and relief sought without is important that you make eye contact with the resorting to an outline. Instead, you should focus judges and advocate in a conversational tone. An on the critical cases. Knowing the names of the outline will facilitate this type of advocacy better key cases and the significant facts or holdings from than a verbatim script. those cases should be sufficient. Most seasoned appellate attorneys will tell you that, unlike in law In preparing your outline, you should be mindful that school, the judges rarely quiz you on a case to test how you order the issues most likely will not be the your memory. Use of specific case names should direction your argument takes due to questioning by be done sparingly. Unless a case is critical to the the judges, who often want you to address specific court’s analysis, it is best not to throw around case issues immediately rather than waiting for you to names. discuss them when they come up in your outline. With the exception of your opening and closing In addition to your outline, you should consider statements, then, you should be prepared to jump making a one-page list of significant record cites to any part of your outline at a moment’s notice. and cases that you can bring with you to the podium Because of this, you should practice your outline and refer to if necessary. This should not be a long out of order. Remember that an outline is a tool to document that you have to page through, as that help organize your thoughts. It should not be your may appear sloppy. Rather, this is a quick reference crutch. You might start with a long detailed outline, guide in the event you need it. Similarly, you but that should not be what you bring with you to should not bring with you to the podium binders the podium. By the time of argument, you should and binders full of briefs and cases. try to condense your outline to several pages that contain key words and phrases. 6. Anticipate the Questions You Will Receive.

With respect to structuring your argument, you As you prepare for your argument, ask yourself why should anticipate the biggest issue in the case and the court granted the oral argument request in your address that first. Saving that issue for the end or case. Consider the weaknesses of your case, even if building it up throughout your argument makes little your opponent has not done a good job addressing sense as you will run the risk of running out of time them. Not only should you consult with other before you can address it. Also, either at the outset attorneys in your office who worked on the case of your argument or after your opening statement, with you, but it is an excellent idea to have a few you should address the key points made by your attorneys who know nothing about the case review

41 42 the appellate briefs and tell you what questions If you are going to the argument alone, it is a great they think will be thrown in your direction. Try idea to talk to someone who has done it before and this with attorneys who have different practices who can walk you through what to expect on the than you. Their anticipated questions may be very big day, ranging from security checks to how cases different from what you anticipated, so it is best transition from one to the next in the event multiple to have this discussion towards the beginning of cases are scheduled for argument at the same time. your preparation rather than at the end in the event In the event you know your panel of judges before you need to develop responses to unanticipated the day of your argument, do your research and questions. listen to arguments from cases over which they have presided. This will give you a good sense of While judges know that they can only consider their style of questioning. the record evidence in rendering their decisions, nonetheless they may ask you a question about an 8. Practice with Co-Workers and Friends or issue or fact that is outside the record. Hopefully, Family. you have anticipated this sort of question and have a response. Don’t be afraid to get insight from your This is one of the most critical steps. The more client or another source prior to argument about you rehearse your argument out loud, the more background and contextual details of the case that comfortable you will be. Get used to saying are not part of the record but that may nevertheless important case names and difficult legal phrases out generate questions from the panel. At the very loud. Practice in front of different people, including least, knowing that you did this will help you feel family members who won’t be afraid to give you more comfortable. honest feedback. Practice in locations other than your office. This could be in your car, on a walk, 7. Listen to Other Oral Arguments and or in the shower. The more you practice, the more Know What to Expect on the Day of Your confidence you will have. Argument. 9. Additional Tactics and Skills to Use During If you have never attended or listened to an oral Argument argument before your first one, then you should certainly do so. You can access oral arguments It is impossible to address all the tactics that can before most appellate courts online for free. While be used in oral argument, but remembering a few it largely depends on the nature of the case, many key ones should help. First, if you are asked a judges seem to focus on the real-life implications question, be straightforward and answer it directly. of their decisions. To that end, their questions Start with a “yes” or “no” response followed by an often seem more practical, focusing on the facts explanation. Avoiding a question will cause you to rather than the nuances of the law that have already lose credibility with the panel. Second, if you are been briefed. You should keep this in mind as you asked to concede a point that is not in your favor, prepare. don’t be afraid to do so. Acknowledging points unfavorable to your position that you really have If there are similar cases you have cited that were no basis to dispute will help you gain credibility. before the same court and you have the ability to Third, never argue with a judge. That goes without listen to an argument from those cases, then do so. saying. Fourth, if asked a difficult or unanticipated While you probably won’t get the same panel of question, take a moment to think about your answer. judges, the more you can familiarize yourself with We are often tempted to jump in with a response the process, the more prepared you will feel. and fear a brief moment of silence. Don’t let that be the case. Take a moment and provide a thoughtful response. Finally, stop talking if you have nothing

43 44 else to say and have a cold bench, even if you have Kathryn (Kate) A. Harrell has over ten years time to spare. of experience as a trial lawyer. Her trial and appellate practice focuses on the representation of Conclusion insurance companies, municipalities, individuals, and businesses in tort and employment litigation The best way to successfully navigate your in federal and state court. These claims range first appellate oral argument is to be prepared. from defense of excessive force claims to dog bite Preparation will ease your nerves and give you claims. Kate also practices in the area of municipal the confidence you need. But even if all else fails, law and serves as the Prosecutor for the Village of remember that the briefs are the most important part Waunakee and as a Special Prosecutor for the City of the appeal. Although oral argument is important, of Beloit. it rarely makes or breaks a case, so try to relax and make the most of it. References 1 7th Cir. R. 34(b)(3).

45 Recent Decision Puts Brakes on Runaway Copyright Infringement Litigation by: John Healy, Corneille Law Group, LLC

Introduction Increase in Copyright Infringement Litigation

Over the past few years, copyright infringement While the aforementioned high profile lawsuits lawsuits have made headlines. In March 2015, had a Hollywood venue and involved famous and recording artists Robin Thicke and Pharrell Williams recognizable musical compositions, Wisconsin has were ordered to pay $7.4 million to the estate of been no stranger to these types of lawsuits, and has Marvin Gaye (later reduced to $5.3 million) after a lately experienced a staggering increase in copyright jury determined that their hit song “Blurred Lines” infringement lawsuits. was strikingly similar to Marvin Gaye’s 1977 hit song “Got to Give it Up.”1 Copyright infringement litigation is notoriously unpredictable, both with respect to proof of liability Conversely, in a similar case in June 2016, a and the available damages. A plaintiff may choose jury found in favor of legendary rock group Led between statutory damages (ranging from $200 for Zeppelin amidst allegations that the instrumental innocent infringements up to $150,000 for willful introduction to their 1971 landmark hit “Stairway infringements) or actual damages, which include an to Heaven” had been taken from an instrumental infringer’s profits attributable to the infringement.5 riff in a 1968 song “Taurus,” originally recorded by Further, a prevailing plaintiff need not choose the the band Spirit.2 While the respective juries reached measure of damages until after the jury returns its different results, in both instances they were asked verdict.6 Moreover, a prevailing litigant—plaintiff to undertake a subjective assessment comparing the or defendant—can recover their actual attorney fees, overall “concept and feel” of the two works at issue and these cases are often very costly to litigate.7 to determine whether an infringement had occurred. Copyright law in the United States is governed by These similar cases that resulted in different Chapters 1 through 8 and 10 through 12 of Title 17 outcomes highlight the dilemma in copyright law. of the United States Code. Copyright protection The law seeks to protect the original expression of an extends to “original works of authorship” fixed in 3 idea, but not the idea itself. For example, the idea or any tangible medium of expression.8 “Works of concept of a secret agent who saves the world from authorship” fall into eight broad categories, including impending disaster is not protected by copyright; literary works, musical works, dramatic works, but a particular expression of that idea—such as a pantomimes and choreographic works, pictorial, 4 James Bond movie—is protected by copyright. graphic, and sculptural works, motions pictures However, considering that copyright law extends and other audiovisual works, sound recordings, and to multiple kinds of copyrightable works that take architectural works.9 different artistic forms, the line between an “idea” and the “expression of an idea” is often a blurred line Copyright protection clearly extends to many (as Robin Thicke and Pharrell Williams now know different mediums and artistic forms of expression. firsthand). Recently, Wisconsin has experienced a substantial 46 uptick in copyright litigation involving architectural A “bare possibility” of access is insufficient, because works and pictorial or graphic works. access will not be found based on mere speculation or conjecture.15 Instead, the plaintiff has the burden of The quintessential question in a copyright case is producing evidence sufficient to support a reasonable whether the allegedly infringing work is substantially inference that the defendant had an opportunity similar to the copyrighted work, which generally to view the plaintiff’s copyrighted work.16 The requires the trier of fact to determine whether the evidence must be sufficient to remove the question overall “concept and feel” of the works are the of access from the realm of speculation.17 same. As an aside, whether a test as subjective as comparing the overall “concept and feel” of two Proof of Access works can be consistently applied as a workable legal standard by a jury is worthy of further analysis Proof of access typically takes two main forms: (1) the in and of itself; however, before a jury gets to that plaintiff shows a particular chain of events through subjective analysis, a plaintiff must prove that the which the defendant may have gained access; or (2) defendant had “access” to the copyrighted work at the plaintiff establishes that its protected work has issue. To that end, a recent decision by Judge William been widely disseminated. Based on the wording of Griesbach in the Eastern District of Wisconsin may the statute and the case law, the access element would have put teeth back into the “access” requirement, seem to be ripe for a potential dispositive motion which had slowly been eroded by case law across the where there is an absence of sufficient proof that the country. If affirmed on appeal, this decision could defendant actually had access to the particular work have a significant impact on the volume of copyright at issue; however, that expectation surprisingly has litigation and the likelihood of success of cases filed not come to fruition in the case law. in the Seventh Circuit. The issue of access presents something of a Elements of a Copyright Infringement Claim “Catch-22” for litigants. On the one hand, a jury cannot determine whether there was copying To succeed on a claim, a plaintiff must prove (1) of a specific work until it has been proven by ownership of a valid copyright; and (2) unauthorized sufficient evidence that a defendant actually had an copying of the constituent elements of the work opportunity to copy that work. On the other hand, that are original (i.e., the “protected expression” plaintiffs typically only have inferential evidence in the plaintiff’s copyrighted work).10 The second of access at their disposal since direct evidence of prerequisite to a copyright claim (i.e., unauthorized copying is almost never available. It has been said copying of protected expression) implicates several that virtually all cases in which access is at issue turn steps, the first of which is that the plaintiff must on “inferential proofs.”18 In looking at the case law either offer direct evidence that the defendant copied on point, the courts have interpreted the “reasonable the plaintiff’s work, or evidence from which copying possibility of access” requirement rather broadly can be inferred (i.e., indirect evidence).11 in cases where access is at issue, and have allowed largely circumstantial evidence and inferential proof Direct evidence is rarely available in copyright to sufficiently establish a triable issue of fact on the infringement cases. Thus, copying usually must be issue of access. inferred by proving that the defendant had access to the copyrighted work.12 To prove access, the Under settled law, a trier of fact may impute access plaintiff must offer evidence that the defendant where there is evidence that a third party with whom had an opportunity to view the copyrighted work.13 both the plaintiff and defendant were dealing had However, “this showing must establish more than a possession of the plaintiff’s work, and the plaintiff’s ‘mere possibility that such an opportunity could have and defendant’s dealings took place concurrently.19 arisen’; it must be ‘reasonably possible that the paths In one case, the Second Circuit inferred a reasonable of the infringer and the infringed work crossed.’”14 possibility of access where a songwriter sent the

47 copyrighted work to a third party intermediary who defendant’s work was independently created, access was a supervisor of the alleged infringer (a musician) may be presumed. To be “striking,” the similarities and the supervisor contributed creative ideas to the must be such that they can only be explained through musician’s work.20 In many cases, all that is needed copying, as opposed to independent creation.26 is a relationship that links the intermediary and the However, the level of “striking similarity” between alleged copier.21 Accordingly, the plaintiff does not works required to support an inference of access have to prove that the defendant actually observed the without additional evidence varies significantly plaintiff’s work. In a Western District of Wisconsin among the federal circuit courts. case from 2015, the court held that the plaintiff had created a triable issue of fact on access where the Is there Anything Left of the Access Requirement? plaintiff had sent dozens of home plan catalog books to the defendant containing the plaintiff’s copyrighted As the case law demonstrates, access is often not works over a period of twelve years, even though the even at issue in cases where the access is obvious. dissemination of the plan books was unsolicited and In other cases, courts can assume or infer access largely unnoticed by the defendant.22 based on the circumstances, or they can skip the access requirement altogether if they determine that As mentioned, other lines of cases infer access where the works are “strikingly similar.” There is certainly it is determined that the copyright holder’s work was a rationale for the shrinking significance of the widely disseminated. In a Ninth Circuit decision, a access requirement. First, taking a broad view of fabric printing company was able to prove access the inferential proof necessary to show access can be based on “widespread dissemination” when one of its justified by the fact that copyright infringement is a copyrighted floral patterns appeared on a t-shirt sold strict liability tort. Second, the practical reality of a by Aeropostale, Inc., where the fabric company had web-based media world is that almost any protected sold more than 50,000 yards of fabric bearing that work can become widely disseminated. specific floral pattern over the previous four years.23 In the context of music and popular songs, a court Those rationales may make sense when the protected can find an inference of access based on asua sponte work at issue is a well-known motion picture, a determination of “subconscious copying”—i.e., musical composition receiving substantial airplay, where the work at issue is based on a well-known or a widely-published book or manuscript. But song previously released.24 what about instances where the purportedly “widely disseminated” work is a photo tucked away on an Some commentators have argued that the access obscure website, or a house plan displayed in a element has lost its significance in light of plan book that happens to be on the Internet? The technological advances that have occurred since the access requirement applies with equal force to all copyright laws were enacted because any potential eight works of authorship laid out in 17 U.S.C. § infringer now has a reasonable opportunity to view 102(a), but the reality is that each of those separate any copyrighted work accessible on the Internet works of authorship experiences varying degrees with only the click of a mouse.25 Though the of dissemination on the World Wide Web. When cases typically depend on the circumstances of the dealing with copyrighted works such as photographs infringement and the credibility of the parties, courts or architectural works, for example, it is certainly have routinely held that, where there is proof that the debatable whether such protected works can be copyright holder’s work was “widely distributed,” considered “widely disseminated,” even if they are access can be inferred. technically available on the Internet. While it is understood that plaintiffs generally need to prove To complicate things even further, courts have also access by inference, one begins to question whether held that when two works are so strikingly similar there is an end point to how far the level of inferential as to preclude any reasonable possibility that the proof to show the possibility of access will extend.

48 49 In many past cases where the evidence of access to builder’s associations, of which the de- appeared weak, defendants would try to highlight the fendants were members, from 2000-201331; large gap between a “slight possibility” of access and • The defendants possessed several of the a “reasonable probability” of access at the summary plaintiff’s previously disseminated home judgment stage, but those arguments largely fell on plan catalogs, containing dozens of the deaf ears. plaintiff’s copyrighted plans, though no plan book contained any of the specific Design Basics, LLC v. Lexington Homes, Inc.27 plans at issue32; Importantly, the Eastern District of Wisconsin’s • The defendants’ agent was a former em- recent decision in Lexington Homes may indicate ployee of a lumberyard that was a long- 33 that the courts are willing to start putting some teeth standing customer of the plaintiff ; and back into the access requirement where the category • The defendants had “access in general,” of the work in question is less susceptible to wide because the plaintiff’s plans were available dissemination. The case involved a factual scenario on its website and were “ubiquitous in the similar to dozens of copyright cases that have been marketplace.”34 previously filed in Wisconsin. In fact, almost all of those cases have involved the same plaintiff, Though the issue was not specifically raised by the Design Basics, LLC. Design Basics is one of the plaintiff in its motion, Judge Griesbach started his nation’s largest producers of residential home plans decision by dismissing any potential assertion that and maintains copyrights in over 2,000 home plan the plans at issue were so “strikingly similar” as to designs. Its home plan designs appear in its home support an inference of access without additional plan catalogs, which are published across the country evidence. In doing so, Judge Griesbach clarified as well as on its website. that the “striking similarity” inference is limited to “exceptional” cases.35 Exceptional cases are In Lexington Homes, Design Basics alleged that typically those where the alleged infringer’s work the defendants, builders of residential homes and contains a “copyright trap” that would not appear in multi-family apartment buildings, had infringed the work but for the alleged infringer having copied 28 on four of its copyrighted residential home plans. a protected work (e.g., mapmakers will sometimes The defendants claimed that they had independently include fictitious geographical features in their maps created the plans in question through a collaborative that serve no practical purpose other than to support process involving members of their design team, who an inference of copying if that feature is duplicated signed affidavits attesting that they had not seen the in a separate map).36 The plaintiff was unable to plaintiff’s copyrighted plans at issue prior to the filing identify anything inherently unique about its house 29 of the lawsuit. The parties filed competing motions plans that served as a “copyright trap” to an unwary for summary judgment, which included a defense potential infringer. motion on access, arguing that the plaintiff had not proven that the defendants had any opportunity After determining that the “striking similarity” to access the plaintiff’s copyrighted works before inference did not apply, Judge Griesbach addressed 30 creating the allegedly infringing works. the inadequacy of the plaintiff’s evidence of access. As he stated, none of the plaintiff’s evidence of Like most copyright cases, there was no evidence of access pertained to the specific works defendants direct access. Accordingly, the plaintiff submitted were accused of copying.37 Moreover, the fact that the following inferential proof that defendants had the defendants had a general awareness that the access to the four plans at issue: plaintiff had copyrights or that the defendants had access to the plaintiff’s other copyrighted works was • The plaintiff “regularly and systematically” insufficient to raise an inference that the defendants mailed plan catalogs and other publications 50 had access to the specific copyrighted works at Conclusions issue.38 According to the court, allowing a jury to infer that the defendants had access to the specific The vague and subjective nature of what constitutes works at issue under this evidence would invite an “infringement” allows for the law to be applied to the jury to draw an inference of access based on various types of works and mediums while balancing speculation and conjecture alone, which is precisely the competing interests that the copyright laws seek what the statute prohibits.39 to protect—i.e., providing legal rights and protections to those who have created works for which they seek Ultimately, the court granted the defendants’ summary creative and commercial control against the rights of judgment motion on access, which rendered all other users of copyrighted works, who seek to use existing motions moot, and dismissed the case in its entirety works to build and create new works. since the plaintiff could not establish a triable issue of fact on the issue of access.40 The profound difficulty in delineating precise legal standards in guiding copyright law leaves us with Potential Impact of Lexington Homes laws that are vague, flexible, and ambiguous. The practical reality of that vagueness results in the In many ways, the Eastern District took a more laws being applied on what appears to be an ad hoc common sense approach in analyzing the level basis. This problem of vagueness is compounded of inferential proof of access that a plaintiff must by the fact that different courts have interpreted and present to withstand summary judgment. First, applied the elements in inconsistent and sometimes Judge Griesbach focused on the evidence of access conflicting ways. to the specific work at issue, rather than the plaintiff’s assertion that defendants had “access in general” to However, before the trier of fact gets to the all of its works. Second, he dismissed the idea that hopelessly amorphous question of whether works a defendant having access to, or even possession of, are substantially similar, it has to grapple with the some of the plaintiff’s plans that are not at issue can threshold issue of access. The Lexington Homes support an inference of access with regard to plans decision arguably provides more clarity with regard at issue that are not in the defendants’ possession. to what evidence or proof is necessary to get past the Third, he dismissed the idea that “striking similarity” summary judgment stage. Requiring a heightened can support an inference of access in the context of level of proof to establish access arguably adds residential house plans except in the rarest and most more predictability in an area of law that is highly unusual of cases. unpredictable, and may also have a chilling effect on the volume and scope of copyright claims which are Copyright infringement cases involving house plans filed. certainly differ from copyright cases involving other protected works of authorship, and each case depends Design Basics has appealed the decision, and the on the circumstances of the alleged infringement and Seventh Circuit will hear oral argument on the matter the credibility of the parties; however, the Lexington on April 5, 2017 (likely around to the time of this Homes decision appears to significantly temper an Article’s publication). If the Seventh Circuit upholds inference of access where there is a relationship the ruling, it could have a profound impact on the linking an intermediary and the alleged infringer. future of copyright litigation in a number of ways. The implication is that there may still be a meaningful The first (and obvious) potential consequence is that distinction between a “slight possibility” of access more copyright infringement cases will be ripe for and a “reasonable opportunity” of access, and that adjudication at the dispositive motion stage. Second, plaintiffs must sufficiently bridge that gap before there could be a decrease in the number of copyright they can pass the summary judgment stage. cases filed. Third, while the volume of copyright infringement cases filed could stay the same, the scope of those cases may decrease. For example, in

51 the context of residential house plans, plaintiffs will 9 17 U.S.C. § 102(a)(1)-(8). likely need to be more diligent about the number of 10 17 U.S.C. § 501; see Feist, 499 U.S. at 361; Harper & Row claimed infringements they allege in their pleadings, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985); Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, while being mindful of the burden necessary to 1011 (7th Cir. 2005). prove access. In this manner, a heightened burden 11 See Prestwick Grp., Inc. v. Landmark Studio Ltd., No. 14-CV- to show access may serve as an artificial “buffer” 731-JPS, 2015 U.S. Dist. LEXIS 65392, at *32 (E.D. Wis. and encourage plaintiffs to file causes of action May 19, 2015) (unpublished decision); see also Stanislawski alleging only infringements where there is a strong v. Jordan, 337 F. Supp. 2d 1103 (E.D. Wis. 2004). 12 Stanislawski, 337 F. Supp. 2d at 1103. inference of access, and deter plaintiffs from “piling 13 Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d on” as many infringements as possible. Given the 502, 508 n.5 (7th Cir. 1994). broad and potentially lucrative remedies afforded 14 Bldg. Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 (4th by copyright law, it makes logical sense to strike a Cir. 2013). balance, ensuring that plaintiffs confirm they have 15 Id. at 578-79. 16 Wildlife Express Corp., 18 F.3d 502. adequate evidence of access to plans, where access 17 Bldg. Graphics, Inc., 708 F.3d 573. would otherwise be in doubt, before their claims are 18 See Melville B. Nimmer & David Nimmer, Nimmer on permitted to pass the summary judgment stage. Copyright, § 13.02A, at 13-19 (Matthew Bender 2015). 19 T-Peg, Inc. v. Vt. Timber Works, Inc., 459 F.3d 97, 111 (1st John Healy earned his J.D. from the University of Cir. 2006). 20 See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d Wisconsin in May 2014. Upon graduating, John Cir. 2003). began working as an associate at Corneille Law 21 See Cottrill v. Spears, 87 Fed. Appx. 803, 805-06 (3d Cir. Group in Madison, WI. John represents and advises 2004). clients in a variety of practice areas, including 22 Design Basics LLC v. J & V Roberts Inv., Inc., 130 F. Supp. personal injury defense, medical malpractice defense, 3d 1266, 1275 (E.D. Wis. 2015). 23 L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, insurance coverage matters, and cases involving 848 (9th Cir. 2012). alleged advertising injuries. John is a member of 24 See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d the Wisconsin Defense Counsel, Dane County Bar 988, 997-99 (2d Cir. 1983) (The Second Circuit affirmed a Association, and the Young Lawyers Division of the jury’s verdict that former Beatle George Harrison, in writing State Bar of Wisconsin. He is admitted to practice in the song “My Sweet Lord,” subconsciously copied The Chiffons’ “He’s So Fine,” a number one hit on the Billboard Wisconsin and before both the Eastern and Western charts, which was released six years earlier.). U.S. District Courts of Wisconsin. 25 See NOTE: Copyright Infringement and Access: Has the Access Requirement Lost Its Probative Value?, 52 Rutgers References L. Rev. 311 (Fall 1999). 26 See Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 1 Grow, Kory, Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit, Rolling Stone (March 10, (7th Cir. 1997); Bucklew v. Hawkins, Ash, Baptie & Co., 2015); see also Grow, Kory, Led Zeppelin Win in ‘Stairway LLP, 329 F.3d 923, 926 (7th Cir. 2003); Selle v. Gibb, 741 to Heaven’ Trial, Rolling Stone (June 23, 2016) (clarifying F.2d 896, 901 (7th Cir. 1984). that the award in the “Blurred Lines” case had been reduced 27 No. 14-CV-1102, 2016 U.S. Dist. LEXIS 140207 (E.D. Wis. to $5.3 million). Sep. 29, 2016) (unpublished decision). 28 Id. at *3. 2 Grow, Kory, Led Zeppelin Win in ‘Stairway to Heaven’ Trial, Rolling Stone (June 23, 2016). 29 Id. 30 Id. at **1-2. 3 See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991). 31 Id. at *5. 32 Id. at *7. 4 See Copying—Definition of “Protected Expression,” Seventh Circuit Instruction 12.5.2, Federal Civil Jury 33 Id. at *5. Instructions of the Seventh Circuit (Committee on Pattern 34 Id. at *6. Civil Jury Instructions of the Seventh Circuit 2015). 35 Id. at *9. 36 Id. at *9 (citing Bucklew, 329 F.3d at 926). 5 See 17 U.S.C. § 504(a)-(c). 37 Id. at *14. 6 17 U.S.C. § 504(c). 38 Id. 7 17 U.S.C. § 505. 39 See id. at **14-15. 8 17 U.S.C. § 102(a). 40 Id. at *15.

52 53 NOTES

54 NOTES

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