Thursday, September 22, 2011

La Crosse County Bar Association Fall Schedule

The La Crosse County Bar Association holds regular meetings most Mondays at noon in the Banquet room of the Waterfront Restaurant & Tavern, 328 Front St. South, in La Crosse.  The entrance to the Banquet room is off a parking lot on the north side of the building.  The charge for lunch will be $11 (which includes coffee, tea, or a soft drink, tax and tip).   While it is not well known you need not be a member of the Association to attend these Monday lunch meetings.  

Normally, I can understand a meeting of lawyers might not be all that fascinating for non lawyers.  However, most of these noon meetings feature a presentation on topics of general legal interest.  If one of these speakers or topics on the schedule this fall piques your interest, feel free to contact Jim Kroner to make arrangements to attend. 

10/03              Jim McNeilly – Bankruptcy Issues

10/10              Christopher Ahmuty & Larry Depuis – ACLU of Wisconsin

10/17              Western WI Federal Judge William Conley – TBA

10/24              Dan Dunn – Issues in Collection Practice

10/31              Judge Todd Bjerke – La Crosse County Veteran’s Court

11/07              Joe Veenstra – TBA

11/14              Phil Addis – Representing Clients before local Municipalities

11/21              District Attorney Tim Gruenke – TBA

11/28              Mary Jo Werner – Annual Tax Law Update

12/05              Dan Arndt – Representing Clients in Adverse Possession Cases

Tuesday, July 12, 2011

Concealed Carry Comes to Wisconsin

Concealed carry: Could prohibiting weapons in 
the workplace lead to 
liability?Last week, Governor Walker signed a law causing Wisconsin to join 48 other states in allowing people in Wisconsin (residents and non-residents) to legally carry firearms that are concealed.  While this practice is common in other states, Wisconsin's new law leaves Illinois as the only state not allowing some form of legal concealed carry.

Between now and November 1, 2011 - when the law takes effect - people desiring to exercise their new right to concealed carry, not to mention businesses and other places open to the public where such persons might frequent, need to understand what the law allows and does not.  Unfortunately, the details are too complicated for this post. 

While I encourage you to contact one of the attorneys at Moen Ehrsam & Kroner for advice particular to your specific situation, general information about the law from the State Bar of Wisconsin can be reviewed here .  The National Rifle Association also provided a bit more detailed summary of the law here.

Friday, June 24, 2011

Legal Changes in Wisconsin's New Budget Legislation

As this post is written, we know what is in the budget repair bill passed by the Wisconsin Senate and Assembly, but we don't know for sure what will become law because Governor Walker has not announced what items he may seek to eliminate (or modify) using Wisconsin's formidable line item veto.  Pending any surprises, here are highlights, or lowlights, of what the legislation does concerning legal issues Moen Ehrsam & Kroner S.C. is likely to face for clients.

The change that will affect the most people is probably the decision to increase the jurisdictional limit for small claims cases to $10,000.  This new limit is set to take effect on July 1, 2011.  Under previous law, the highest amount of money that could be awarded as a judgment in small claims court was $5,000.  Doubling the amount of money possible to be awarded will make it practical to pursue many more cases in small claims court than was previously the case. 

This is good because small claims court generally provides people with a venue to get their disputes resolved quicker and with less formal procedures, meaning that it is cheaper than having to proceed with a regular lawsuit.  On the other hand, increasing the limits means people may have substantially more money at risk in a small claims case, making it increasingly risky to handle a small claims case without an attorney (as many people used to do).  This increased limit of $10,000 does not apply to claims for personal (bodily) injury.

The legislature also authorizes bail bondsmen to conduct business in Wisconsin.  In the past, no one could be in the business of collecting a fee to post bond for someone accused of a crime.  The person accused, or family or friends, had to come up with the cash to post bond if cash bond was required.  As part of its business friendly agenda, Wisconsin now allows bail bondsmen to collect a fee (expected to be about 10% of the amount of cash bond required by the court) to post bond for a defendant.

On the surface, this seems like a win / win proposition.  Defendants can get out by posting less bond than previously required, the bond business gets to make money (from the fees) and the Court has a good solvent party to collect the entire bond from if the defendant does not show up for court or otherwise violates the conditions of his bond.  However, it is not clear the picture will be so rosy. 

Now, most defendants are released on a signature bond without having to post cash at all.  Fears are that signature bonds will disappear.  There are also concerns about "bond inflation."  Will Judges who used to require $1,000 cash bond on a given set of facts now increase their bond decision to $10,000 knowing a defendant can get out by posting only 10%?  Moreover, when a defendant posts cash now, that money is refunded in full at the end of the case (unless used to pay fines, etc).  Money paid to a bail bondsman is gone forever. 

Finally, what happens if a person who has paid a bail bondsman fails to appear?  The bail bondsman has to pay the Court the full amount of the bond.  But the bail bondsman does not then just write off the loss as the cost of doing business.  No, the bail bondsman goes hunting for the defendant so he can "arrest" the defendant and cart him back to the Court to get the bond paid back.  States that allow bail bondsmen have a rich history of abuses by bail bondsmen engaged in the process of "arresting" their customers.  They break down doors, engage in gun fights and high speed chases, and do whatever they deem necessary to attempt to get their money back. 

I fear the legislature made a mistake by adding this law authorizing bail bondsmen to the budget bill where it might become law without going through the public hearings and debates needed to adequately consider all the pros and cons of this change.  It remains to be seen whether this legislation is, on balance, a good idea.

Tuesday, May 17, 2011

PALIMONY IN WISCONSIN?

The Wisconsin Court of Appeals just decided a case arising in La Crosse County called Jahimiak v. Long.  The case should stand as a reminder that parties who decide to live together and accumulate property together outside of marriage can cause significant legal problems in the increasingly common circumstance where those relationships end. 

In recent years, it has been more common for people to cohabit without the benefit of marriage.  When this cohabitation extends for years, the unmarried persons in such relationships frequently accumulate the same legal and financial entanglements married people do.  As cohabiting couples “break up” the legal system is then asked how to resolve the resulting legal and financial problems.

Should things like real estate, boats and cars belong solely to the person whose name is on the title?  Who should receive how much of various financial accounts or retirement plans?  Who should get credit for how much of what was previously paid toward their joint financial obligations or what one party contributed to pay on the debts of the other?

When married parties see their relationship end, the legal system has an entire chapter of Wisconsin statutes governing divorce in place to deal with untangling the legal and financial issues involved.   However, when the parties are not married, and have not agreed in advance how to resolve future problems, the legal dispute can be substantial and the results uncertain.    

In 1977, actor Lee Marvin was sued by a woman with whom he cohabited.  She claimed that when they moved in together, he promised to support her for life.  Noted California divorce attorney Marvin Mitchelson referred to the claim he brought against Marvin for breach of that contract as a suit seeking “palimony.”  Palimony has come to be understood as a shorthand way of describing court action brought to apportion the financial consequences arising from the break-up of a long term non-marital relationship.

In 1987, in Watts v. Watts, the Wisconsin Supreme Court decided divorce laws would not apply to such situations.  But it ruled long standing legal claims employed in other situations could be used to determine legal rights former cohabiting parties might have in assets or debts accumulated during the time they lived together.  The Court ruled legal claims like breach of an express contract, breach of an implied in fact contract, unjust enrichment and partition could be used to divide real estate, financial assets, and personal property accumulated during the relationship.

Parties considering cohabitation can reduce their exposure to expensive and uncertain future lawsuits if they have an attorney draft an agreement to govern their legal rights in such a circumstance.  Individuals who have accumulated property during cohabitation without such a written agreement should consult an attorney when the relationship ends to be sure their financial and legal rights are protected. 

Wednesday, May 11, 2011

Wisconsin Supreme Court Affirms Admissibility of Dying Declaration

In 2004, the United States Supreme Court issued its most significant decision in decades on the right a criminal defendant has to confront the witnesses against him at trial in Crawford v. Washington.  In Crawford, the Court held that, with few exceptions, hearsay (testimony by one person about what another person said) could not be used to prove a defendant guilty.  Before Crawford, throughout the nation frequently allowed witnesses to testify to what other witnesses told them under exceptions to the rule of evidence governing hearsay permitting hearsay to be used where the statement of the third party recounted by the person who testified was deemed "reliable." 

Crawford made it clear the touchstone of whether hearsay would be admissible in a criminal case was not whether the statement was "reliable" (likely to be true based on circumstantial guarantees of trustworthiness) but whether the statement was "testimonial" (given by someone under circumstances where the statement was for the purpose of accusing someone of wrongdoing).  If the statement was "testimonial" (such as most statements given to a police officer) it would not be allowed unless the person who made the statement was actually present at trial to be subjected to cross examination.

Last week, in State of Wisconsin v. Beauchamp, the Wisconsin Supreme Court decided statements made by someone who believed they were about to die in which they sought to identify their killer were still admissible at criminal trials despite Crawford - even if they died and could thus not testify at trial.  The Supreme Court ruled that the United States constitutional amendment creating the right to confront witnesses (the 6th Amendment) was not intended to change what was then admissible in evidence and since court decisions from before the 6th Amendment was adopted allowed dying declarations to be admissible, the 6th Amendment did not prohibit them from being used in evidence now.  While this decision was not unexpected, it is an example of a significant development in the law governing criminal prosecutions that criminal defense attorneys must constantly be on the alert for in order to provide their clients with effective representation. 

Monday, May 2, 2011

Jim Kroner Speaks on Attorney Fees to La Crosse County Bar

On March 21, 2011, Jim Kroner gave a presentation to the La Crosse County Bar Association on Wisconsin "fee shifting" statutes.  These are laws that in specific situations, alter what is known as the "American Rule" that has each party to a lawsuit paying its own attorney fees.  Wisconsin law contains dozens of statutes which require a defendant who loses a lawsuit to pay a plaintiff who wins the lawsuit for the "reasonable attorney fees" incurred by the plaintiff in the lawsuit.  The presentation highlighted situations where such statutes were most frequently applicable and provided a primer on how to apply the laws to recover attorney fees from the opponent in such a circumstance.

The La Crosse County Bar Association is applying for legal education credit for those attorneys who attended the presentation.  If such a statute applies to a legal situation you are involved in it can significantly affect the way the case is handled and the outcome available.  Be sure to make sure the attorney representing you knows how to apply these laws to your benefit.

La Crosse County Bar Association Elects New Officers

At its annual meeting on Monday, April 25, 2011, the La Crosse County Bar Association elected the following officers: President – Margaret (Peggy) Herlitzka of Hale, Skemp, Hanson, Skemp & Sleik; President-Elect – Jim Kroner of Moen Ehrsam & Kroner, S.C.; Secretary – Angela Machi; and Treasurer – Emily Hynek of Johns, Flaherty & Collins, S.C.