End of the Year Report

Posted on by Hamilton

2011 truly has been an historic year for civil justice reforms in Wisconsin. The strong support of Wisconsin Civil Justice Council’s (WCJC) Board, Partners, and Friends is one of the reasons our legal reform campaign has been so successful.

With that in mind, WCJC invites you to celebrate our successes by making a donation to WCJC and sharing news of our accomplishments, detailed in the end of the year report below, with your members and friends. We encourage you to reprint any of the following information in your organization’s publications, because without your support, all this would not have been possible.

Legal Reforms I

As you likely recall, soon after being sworn into office Gov. Scott Walker signed into law landmark legal reforms (Act 2). WCJC was the driving force behind this legislation. Act 2 included overdue policies that have been introduced and supported by the business community for many years. The important policies passed by the Legislature, and signed into law by Gov. Walker, include the following:

  • Product Liability – Provisions of this bill will assist small and large businesses by requiring proof of a “reasonable alternative design” in an alleged defective design of a product, moving Wisconsin away from the broad “consumer expectation” test. By adopting this provision, Wisconsin will join 46 other states.
  • Expert Opinion (Daubert) – Wisconsin joins more than 30 other states, and the entire federal court system, by adopting the Daubert standards. This common sense provision affects both parties in a case by limiting testimony of experts and evidence to that which is based on sufficient facts or data and is the product of reliable principles and methods.
  • Risk Contribution – This provision overturns the Wisconsin Supreme Court’s 2005 decision, Thomas v. Mallet, where the Court adopted the deeply flawed “risk contribution” theory in cases involving lead-based paint. Wisconsin is the only state in the country to have adopted this theory. The Court’s decision led The Wall Street Journal to pen an editorial describing Wisconsin’s litigation climate as “Alabama North.”
  • Caps on Punitive Damages – Sets a cap on punitive damages at $200,000 or two times compensatory damages, whichever is greater.
  • Frivolous Lawsuits – Reduces frivolous lawsuits by holding a party liable for costs and fees for bringing a lawsuit or claim that is done solely for the purpose of harassing or maliciously injuring another party.

WCJC recognizes the importance of educating the legal community about these reforms, we are therefore looking forward to hosting Daubert Comes to Wisconsin, a CLE summit on expert opinion evidence on January 11, 2012.

Legal Reforms II

WCJC did not stop with these major victories. This fall, Gov. Walker called a second special session focusing on jobs, and once again WCJC was instrumental in crafting and advancing the following reforms:

  • Interest on Judgments (2011 Wisconsin Act 69): Amends Wisconsin’s unjustifiably high interest rate on pre- and post-judgments from 12 percent to the federal prime rate, plus one percent.
  • Trespasser Liability Act (2011 Wisconsin Act 93): Prevents courts from adopting the new Restatement Third of Torts which expands liability for injuries to trespassers. The legislation simply codifies Wisconsin’s existing law, which adequately protects landowners and renters from unwanted trespassers.
  • Reasonable Attorney Fees (2011 Wisconsin Act 92): Codifies 14 criteria which courts must consider when awarding attorney fees for the plaintiff. Also includes a rebuttable presumption that reasonable attorney fees are three times compensatory damages.

The American Tort Reform Association (ATRA) has released its annual Judicial Hellholes report, and instead of receiving negative scrutiny, Wisconsin received acclaims for the significant lawsuit reforms recently signed into law by Gov. Scott Walker and the Legislature. In its “Points of Light” section, the Judicial Hellholes report highlights Wisconsin as a leader when it comes to lawsuit reforms.

Without your financial support, these successes would not have happened. Our 2011-12 legislative session is not over, and we anticipate more reforms will pass. For example, WCJC supports two bills now working their way through the Legislature (see directly below). Therefore, we hope you renew your commitment to a fairer, more equitable civil justice system in Wisconsin.

  • Repealing Punitive and Compensatory Damages under Wisconsin Fair Employment Act (SB 202 /AB 289): Repeals 2009 Wisconsin Act 20, which for the first time imposed punitive and compensatory damages in lawsuits filed under the Wisconsin Fair Employment Act (WFEA). SB 202 has already passed the Senate (17-16) and is awaiting a vote in the Assembly, where we are hopeful it will pass when the Legislature reconvenes in January 2012.
  • Eliminating Felony Conviction Records from WFEA (SB 207 /AB 286): Protects employers by allowing consideration of an individual’s felony conviction record when deciding whether to hire or terminate the person. The bill has passed out of both Assembly and Senate Labor Committees. This will be a top priority for WCJC in January 2012.

WCJC Appellate Program

The addition of Justices Ziegler and Gableman to the Wisconsin Supreme Court over the past few years has resulted in a more balanced bench on civil liability issues. To help capitalize on the new makeup of the bench, WCJC has created an Appellate Program to submit amicus curiae (friend of the court) briefs to the Wisconsin Supreme Court on behalf of the WCJC in cases involving important civil liability issues.

The Appellate Program will file amicus curiae briefs for two vital reasons: 1) to ask the Court to accept civil justice cases of import to the business community, and 2) if accepted by the Court, to draft and file briefs in advancing WCJC’s positions.

This proactive program provides advantages of time and focus over prior practices of waiting for parties in cases to request our participation, which sometimes leaves important cases un-briefed from the broader business perspective.

To date, WCJC has filed amicus briefs in three Wisconsin Supreme Court cases:

  • MercyCare Ins. Co. et al. v. Wis. Commissioner of Ins. – WCJC argued this case was an opportunity to clarify the appropriate deference courts should give to statutory interpretations by state agencies. In reaching its decision, the court applied due weight deference to the Wisconsin Commissioner of Insurance’s decision, reestablishing the varying standards of review the lower court had ignored.
  • Casper, et al. v. American Int. South Ins. Co., et al. – A significant decision dealing with the liability of corporate officers for non-intentional torts and default judgments. The Great Lakes Legal Foundation lawyers, on behalf of WCJC, supervised the filing of WCJC’s brief by outside counsel in support of the employer and insurance company sued in the case.
  • Rasmussen, et al. v. General Motors Corp., et al. – The issue before the Wisconsin Supreme Court was whether Wisconsin’s personal jurisdiction statute, Wis. Stat. § 801.05, allows for general or specific jurisdiction over a foreign parent corporation based on an agency theory. WCJC’s brief attempted to persuade the court to maintain the distinction between parent and subsidiary corporations which limits personal jurisdiction.

Judicial Evaluation Program

2011 was an important year for the Wisconsin Supreme Court. In April 2011, Justice David Prosser was narrowly reelected, thereby ensuring that the current makeup of the Court remains intact.

To help educate the business community and the general public about the Supreme Court, the WCJC supported the preparation of the 2011 Guide to the Wisconsin Supreme Court highlighting the most important cases decided over the past two terms (from 2008 through 2010). The 2011 Guide describes the Supreme Court’s decisions in each selected case, WCJC’s position, and how each justice decided the case.

In addition to advancing vital legislative reforms, your contribution will help us expand both the Appellate and Judicial Evaluation Programs.

There are many ways to support the Wisconsin Civil Justice Council:

Donate by mail: Download a printer-friendly PDF to mail to us at:

Wisconsin Civil Justice Council, Inc.

c/o Andrew Cook

10 East Doty Street, Suite 500

Madison, WI 53703

Donate by phone: Call Jennifer Bodensteiner at 608.661.9166.

Donate online: Donate online with Paypal