Wisconsin Civil Trial Journal - WDC OnlineA few weeks later, the judge rules against you. You want...

Spring 2017 • Volume 15 • Number 1

Wisconsin Civil Trial Journal

WisconsinDefense Counsel

Defending Individuals And Businesses In Civil Litigation

Also In This IssuePresident’s Message: Major, Destructive Changes to Workers’ Compensation Proposed in Governor Walker’s 2017-19 Biennial Budget Laura M. Lyons

In Seifert v. Balink, the Wisconsin Supreme Court Misses Its Chance to Clarify Daubert Ryan M. Wiesner & Brent A. Simerson

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

Tackling Your First Appellate Oral Argument Kathryn A. Harrell

Recent Decision Puts Brakes on Runaway Copyright Infringement Litigation John Healy

Trial Practice Series It Depends on the Twelve You Get: A Look at the Jury Selection Process

William R. Wick & Katelyn P. Sandfort

David R. Friedman Friedman Law Firm

Kathryn A. Harrell Boardman & Clark LLP

John Healy Corneille Law Group, LLC

Laura M. Lyons Wisconsin Defense Counsel

Katelyn P. Sandfort Nash, Spindler, Grimstad &

McCracken LLP

Brent A. Simerson Leib Knott Gaynor LLC

Ryan M. Wiesner Leib Knott Gaynor LLC

William R. Wick Nash, Spindler, Grimstad &

McCracken LLP

Editor

Andrew Hebl Boardman & Clark LLP

[email protected]

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OFFICERS

PRESIDENTLaura Lyons

Bell, Moore & Richter, [email protected]

PRESIDENT ELECTFred Strampe

Borgelt, Powell, Peterson & Frauen, [email protected]

SECRETARY/TREASURERAriella Schreiber

Rural Mutual [email protected]

IMMEDIATE PAST PRESIDENTJeff Leavell

Jeffrey Leavell, [email protected]

PROGRAM CHAIRChristine Rice

Simpson & Deardorff, [email protected]

DIRECTORS

Nicole BacherCross, Jenks, Mercer & [email protected]

Christopher Bandt Nash, Spindler, Grimstad & McCracken, [email protected]

Frank DohertyHale, Skemp, Hanson, Skemp & [email protected]

Randall [email protected]

Patrick HeaneyThrasher, Pelish, Franti & Heaney, [email protected]

Andrew Hebl Boardman & Clark [email protected]

Sandra HupferSECURA Insurance [email protected]

Josh JohanningmeierGodfrey & Kahn, S.C. [email protected]

Gina MeierbachtolCorneille Law Group, [email protected]

Travis RhoadesCrivello Carlson, [email protected]

Amy SchollCoyne, Schultz, Becker & Bauer, [email protected]

Monte Weiss Weiss Law Offices, [email protected]

Amicus Curiae Committee Chair Monte Weiss

Weiss Law Offices, S.C. [email protected]

Employment Law Committee Chair Nicole Marklein Bacher

Cross, Jenks, Mercer & Maffei [email protected]

Insurance Law Committee Chair: Monte Weiss

Weiss Law Offices, S.C. [email protected]

Vice Chair: Christine Rice Simpson & Deardorff, S.C. [email protected]

Legislative Committee Chair Jeff Leavell

Jeffrey Leavell, S.C. [email protected]

Website Committee Chair Christopher Bandt

Nash, Spindler, Grimstad & McCracken, LLP

[email protected]

Wisconsin Civil Jury Instructions Committee Chair Christopher Bandt

Nash, Spindler, Grimstad & McCracken, LLP

[email protected]

Women in the Law Committee Chair: Laura Lyons

Bell, Moore & Richter, S.C. [email protected]

Vice Chair: Heather Nelson Everson, Whitney, Everson &

Brehm, S.C. [email protected]

Young Lawyer Committee Chair Danielle Rousset

Jeffrey Leavell, S.C. [email protected]

DRI Representative Michael Happe

Weld, Riley, Prenn & Ricci, S.C. [email protected]

Executive Director Jane Svinicki, CAE

[email protected]

Account Coordinator Kelli Dyszelski

[email protected]

Legislative Advisors Bob Fassbender

Hamilton Consulting Group [email protected]

R.J. Pirlot Hamilton Consulting Group

[email protected]

Columnists

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In This Issue…

Journal PolicyWDC 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.

WisconsinDefense Counsel

Defending Individuals And Businesses In Civil Litigation

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

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

Imagine this scenario: You are defending a six-figure case involving bodily injuries. You have spent eight months preparing it for trial. Your case is strong. While you made a nominal settlement offer based on the cost of defense, it was rejected. Both parties agree that this is a case that needs to be tried. The carrier has invested thousands of dollars on medical records and defense fees to get to trial.

You are ready for hearing and present your case. It goes well. The witnesses testify exactly as you intend and the testimony is favorable to your case.

A few weeks later, the judge rules against you. You want to appeal the decision, but you learn that the recording device used at the trial failed, so there is no transcript. You appeal anyway, as the statutes allow you to do so based on a synopsis. However, the appeal that you bring is directed to the judge’s supervisor, who affirms the decision.

You are now faced with the following unappealing choices: appeal to a higher court with an unfavorable standard of review, which will cost additional time and resources, or settle this defensible case for more than it is worth. To compound matters, the next level of appeal requires a transcript, so now it is uncertain whether you even have an appropriate record for your appeal due to the faulty recording. The result is unthinkable: you may now have to retry your case from the beginning.

Your defensible case has now mushroomed into a litigation nightmare due to factors outside of your control: 1) the lack of a transcript and 2) the lack of a knowledgeable and meaningful appellate

body. Picture having to explain these options to your clients. Consider the impact of these risk factors on case values, which are then distributed to consumers.

This is exactly the type of situation that could occur in the workers’ compensation system if the Governor’s recent budget proposal is adopted.

Even if you do you not practice within the workers’ compensation system, I urge you to continue reading. The Governor’s proposed changes, if adopted, will affect insurers, businesses, and business owners. While your practice may not directly involve workers’ compensation, these changes will likely impact your colleagues, your business clients, the insurance carriers that you work for, the ALJs whom you appear before, and the entire circuit court system.

The Two Proposals: Elimination of the LIRC and Elimination of Court Reporters

On February 8, 2017, Governor Walker introduced his proposed 2017-2019 Biennial Budget. As you may recall, the last state Budget Bill also contained major modifications to the workers’ compensation system.

The current proposed budget contains two proposals that would substantially and detrimentally change the workers’ compensation system. The two pertinent provisions are: 1) the elimination of the Labor and Industry Review Commission (the LIRC) and 2) the elimination of statutorily-mandated court reporters at workers’ compensation trials.

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A Brief History of the Wisconsin Workers’ Compensation System

To fully understand the ramifications of these proposed changes, one must understand a bit of the history behind the system. The workers’ compensation system in Wisconsin has existed since 1911. It was the first of its kind in the nation. The workers’ compensation system is based on the “Grand Bargain” between employers and labor. The aim was to provide rights and benefits to employees in a no-fault system while protecting employers from tort claims and the uncertainty of jury trials.1 There are no pain and suffering awards in workers’ compensation; damages are based on statutory provisions that outline the value of the varying body parts. There is also no reduction for contributory negligence.2

Historically, changes to the workers’ compensation system were vetted by the Wisconsin Workers’ Compensation Advisory Council. The Advisory Council is comprised of five representatives from management, five from labor, and three non-voting insurance members. The goal of the system was to maintain stability within the workers’ compensation system without regard to political changes. This balance has produced a system that is envied by other states: Wisconsin has swift return to work timeframes, access to quality health care, low and stable workers’ compensation premiums for insurers, and low litigation rates. The Wisconsin system is a source of pride for its members. In fact, the collaborative nature of the system and its stability are referenced on the state’s website.3

Prior to 2015, changes to the system were generally handled through legislation, as opposed to the budget process. However, the changes in the 2015-2017 Budget Bill were not run through the Advisory Council prior to their introduction, and the changes in the current budget proposal have not been either.

Workers’ compensation cases are first heard by an Administrative Law Judge. While they are called “hearings,” the proceedings are essentially shortened, streamlined trials. There is no jury, but

the cases may be heard over the course of several days and often involve exposures of six or seven figures.

The litigation side of the workers’ compensation system was previously part of the Division of Workforce Development (DWD). As a result of the 2015-2017 Budget Bill, in 2016, a new agency was created to house the judicial side of the workers’ compensation system: the Department of Administration (DOA), Division of Hearings & Appeals (DHA), Office of Workers’ Compensation Hearings (OWCH, also called “the Division”). The ALJs who preside over workers’ compensation trials are part of this system. Their supervisor is the Administrator of the Division of Hearings and Appeals (currently Brian Hayes).

Under the current system, if an ALJ decision is appealed, the Labor and Industry Review Commission (the LIRC) is the first level of appeal. The LIRC’s primary duties are to decide appeals of decisions issued by ALJs in three areas: 1) workers’ compensation; 2) unemployment; and 3) equal rights.

The LIRC is comprised of three members who are appointed by the Governor, subject to confirmation by the state senate, and who serve staggered six year terms. The LIRC is an independent agency of the State of Wisconsin. Though it was previously “attached” to the DWD for administrative purposes, the LIRC has been part of the DOA since the 2016-2017 changes.

The LIRC reviews the evidence from the workers’ compensation trial, considers any briefs submitted by the parties, consults with the ALJ if the credibility of a witness is in question, and issues a written decision. Currently, the LIRC can affirm, reverse, or modify the decision of the ALJ, or direct further proceedings.

The LIRC’s standard of review is currently de novo; it is not bound by the ALJ’s findings of fact or conclusions of law. Rather, the LIRC provides an independent review of the evidence and makes factual findings.

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The LIRC has substantial expertise in understanding and interpreting the Workers’ Compensation Act and provides guidance to the rest of the system. Prior LIRC decisions are not binding on the LIRC, but are persuasive authority. The LIRC’s decisions are available on Westlaw and select opinions are available on the LIRC’s website. The decisions are used by the stakeholders to help provide guidance and predict outcomes throughout the system.

According to the LIRC’s published statistics, in 2015 it received 214 appeals, issued 230 decisions, and had 104 cases pending at the end of the year.4

Appeals of the LIRC’s decisions are decided by the circuit court in the county where the plaintiff resides, unless the plaintiff is a state agency. In that instance, it is the county in which the defendant resides.5 The circuit court has a deferential standard and will uphold the LIRC decision if there is any “credible and substantial evidence” to support it. Barring a legal issue, the circuit court generally upholds the factual and credibility findings of the LIRC.

1. Proposed Elimination of the Labor and Industry Review Commission

Under the proposed budget bill, the entirety of the LIRC would be eliminated. The basis for the proposed change is unknown. The full text of this proposal is available online,6 but the pertinent language is as follows:

Under current law, the Labor and Industry Review Commission (LIRC) reviews administrative decisions of DWD relating to unemployment insurance (UI) and discrimination in employment or in equal enjoyment of places of public accommodation (discrimination) and reviews administrative decisions of the Division of Hearings and Appeals relating to workers’ compensation. Review by LIRC is a prerequisite to any judicial review. This bill eliminates LIRC and instead provides for administrative

review of administrative decisions relating to workers’ compensation by the administrator of the Division of Hearings and Appeals and provides for administrative review of administrative decisions relating to UI and discrimination by the respective administrator of the division in DWD that administers the law in question.

If this budget proposal is accepted, workers’ compensation appeals would be directed to one individual: the Administrator of the Division of Hearings and Appeals. The Administrator is actually the supervisor of the ALJs. Consequently, under this proposal, the first level of appeal would be heard by the direct supervisor of the ALJ who heard the case, as opposed to an independent panel. Importantly, there does not appear to be any additional staff or budgetary outlay for the additional workload being placed on the Administrator.

Another notable change is that, unlike in the current system, the budget proposal does not give the Administrator the right to reverse an ALJ’s order. Rather, the Administrator would only be able to affirm, modify, or remand the decision back to the ALJ in question.

The proposal also includes language that indicates that the “findings of fact” by the “examiner” (presumably the ALJ)7 “shall, in the absence of fraud, be conclusive.”8 Consequently, the ALJ’s decision would have more weight under the proposed system.

The proposals have created a number of serious questions and concerns throughout the workers’ compensation community. There are logistical questions of how the review process will actually work. It is also not clear whether additional staff would be provided to the Division Administrator to assess these appeals. If not, the system could face new challenges of a heavy caseload with fewer resources.

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Further, these changes could drastically change the way Wisconsin cases are handled, particularly by respondents. Under the current system, most cases resolve at either the ALJ level or at the LIRC. If the budget proposal is adopted and the Division Administrator is deferential to the ALJs’ decisions, the new system would likely result in more appeals to the circuit court. This would be a major change. Consequently, respondents may find themselves playing the long game, anticipating appeals three steps or more ahead of the ALJ’s decision. This translates into increased defense costs and a longer timeline to case resolution.

Additionally, circuit court judges may find themselves addressing workers’ compensation cases far more often than they previously have. Based on data from past years, this could result in the circuit court system hearing an additional 200 workers’ compensation cases per year. It may also lead to parties deciding to “test the system” and appeal more cases to circuit court than they previously have, which could increase this figure.

The proposal is silent on what would happen to the body of case law from the LIRC over the past 100 or more years. It is possible that this proposal could eliminate that precedential history, which would lead to uncertainty within the system.

The stakeholders can expect several impacts if this budget proposal is adopted. Insurers are likely to see the cost of handling claims increase due to less certainty in the system. Further, an increase in the frequency of appeals will lead to increased defense costs. Wisconsin businesses would likewise be affected in the form of insurance premium increases. This could also create long-standing instability: The makeup of the LIRC was structured to make it an independent body that was insulated from political changes. Adoption of the proposals could cause the workers’ compensation system to become susceptible to partisan swings, resulting in further uncertainty for stakeholders on both sides.

2. Proposed Elimination of Court Reporters and the Adoption of Recording Devices

The Governor’s proposed 2017-2019 budget would also eliminate the use of court reporters at workers’ compensation trials and replace them with recording devices.9 As with the proposed elimination of the LIRC, the impetus for this proposal is unknown. Likewise, no information has been provided about the proposed recording system or its implementation.

Notably, the Wisconsin workers’ compensation system is funded by the stakeholders. As such, taxpayer savings are not a factor in whether the workers’ compensation system can afford court reporters.

Currently, court reporters are statutorily required at workers’ compensation trials. Parties have the right to request a copy of a hearing transcript. Also, while there is no requirement that transcripts be prepared for appeals to the LIRC,10 many parties choose to order the trial transcript, and they retain the right to do so at a later date.

Many states require the attendance of court reporters at workers’ compensation trials. Based on informal state surveys, at least 23 states require their appearance.11

Court reporters at workers’ compensation trials serve an invaluable function. Just like the court reporters in circuit court, they help maintain the orderly process of trials.12 In fact, the court reporters in workers’ compensation cases act both as court clerks and court reporters. They mark and control exhibits, transcribe testimony, keep the parties’ testimony as clear and accurate as possible, and help maintain the official case record. Obviously, a recording device cannot handle these tasks.

Instead, these responsibilities will likely be put on 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

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protect the record, in addition to performing their official duties and maintaining order. This would never happen in the circuit court system and should not in the workers’ compensation system either. It is asking too much of one person to require them to handle all of these conflicting responsibilities.

Additionally, even with a recording, the audio from the trial will likely still have to be typed if the matter is appealed. Parties could end up worse off than before. Although there may be a typed record of an audio recording, it would likely be a less accurate record due to the lack of a court reporter monitoring the process and protecting the record.

Further, all of this assumes that the recording device has in fact recorded the proceedings and that the audio is audible and complete. An incomplete or inaccurate record could also impact the parties’ ability to appeal and could result in due process challenges.

Not only that, but no information is available as to the type of recording devices to be used under this budget proposal or how they would be implemented or maintained. It is unclear whether parties could choose to hire private court reporters to appear at the workers’ compensation trials. If they could, there are questions regarding whether the transcripts would be accepted as part of the official record.

Questions also remain about whether this proposal would violate the due process rights of the parties involved in these cases. Notably, current statutory provisions require that court reporters be present at the workers’ compensation trials. Further, a transcript is required for appeals to the circuit court.13 The budget bill does not speak to or alter these requirements.

The elimination of state-employed court reporters could significantly increase the cost to the stakeholders in the workers’ compensation system. Under the current system, the Division employs seven court reporters. There are also contract reporters who are used in some instances. These reporters travel to hearing sites and transcribe workers’ compensation trials. There is no cost to

the parties unless a transcript is requested. Further, no taxpayer money is funding this system—the stakeholders bear the cost through their assessments. While the parties to a workers’ compensation case do pay to order a transcript under the current system, it is far less expensive than if a private court reporting company were employed. Anecdotally, the cost of two copies of a 68 page transcript (roughly 2.5 hours of testimony) has been about $180. The cost of a deposition transcript of similar length in a personal injury case in the circuit court system is more than $450. In sum, it is difficult to see how cost can be a factor in the proposal to eliminate court reporters from the workers’ compensation system.

Conclusions

Adoption of either of the two proposals outlined in the budget will have a significant effect on the workers’ compensation system and beyond. If both provisions are adopted, it could result in the circuit courts hearing more workers’ compensation matters with less accurate records than ever before.

Preliminary discussions indicate that practitioners and the stakeholders are not in favor of either of these changes and are concerned about the effects that they will have on the workers’ compensation system.

The WDC Executive Board is monitoring these changes as they develop, as is our lobbying firm, Hamilton Consulting. We are also in the process of forming a workers’ compensation committee to help monitor and address these and other issues in the workers’ compensation system. If you or your colleagues would like to be part of this committee, please contact me at [email protected] or (608) 259-2306.

If you have questions or concerns regarding the issues outlined above, our initiatives, or Wisconsin Defense Counsel in general, please feel free to contact me. I look forward to seeing you at the Spring Seminar at the American Club on April 20th and 21st!

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Laura Lyons is the President of the Wisconsin Defense Counsel. She is a shareholder at Bell, Moore & Richter, S.C., located in Madison, Wisconsin. Laura has a statewide practice, representing and advising clients in a variety of areas, including civil litigation defense and workers’ compensation. She has also handled appellate matters, including appeals to the Labor and Industry Review Commission and the Wisconsin Court of Appeals. She is admitted to practice in Wisconsin and before both the Eastern and Western U.S. District Courts of Wisconsin.

Laura is a member of the Dane County Bar Association, the Wisconsin Association of Workers’ Compensation Attorneys (WAWCA), the Defense Research Institute (DRI), and the State Bar of Wisconsin. She is also a barrister in the James E. Doyle Inns of Court.

Laura and her husband live in Madison. She has been a Big Sister in Dane County’s Big Brothers Big Sisters program since March 2006. Laura also volunteers as a coach for the Millennium Soccer Club, which brings affordable and accessible organized youth soccer to Madison’s low-income, ethnically diverse neighborhoods. In her free time, she enjoys spending time with her family and friends, running, reading, and playing soccer.

References1 See Thomas Domer & Charles Domer, Wisconsin

Workers’ Compensation Law (West 2016-17), for a more comprehensive summary of the history of the Wisconsin system.

2 There are reductions for certain infractions, such as violating drug/alcohol policies or violating safety policies.

3 https://dwd.wisconsin.gov/wc/legal/.4 http://lirc.wisconsin.gov/pdf/2015%20STATS.pdf.5 See Wis. Stat. § 801.50 for the proper venue in other

circumstances. 6 http://doa.wi.gov/Documents/DEBF/Budget/Biennial%20

Budget/2017-19%20Executive%20Budget/ab64.pdf. The budget brief can be found here: http://doa.wi .gov/Documents /DEBF/Budget /Biennia l%20Budget/2017-19%20Executive%20Budget/17-19%20BIB%20FINAL%20revised%2002082017.pdf.

7 The statutory language says “examiner” instead of an ALJ. The intent and effect of the language is currently unknown.

8 http://doa.wi.gov/Documents/DEBF/Budget/Biennial%20Budget/2017-19%20Executive%20Budget/ab64.pdf.

9 For more information on these changes, please see the recent article published by the Wisconsin State Bar’s publication “Inside Track,” available at: http://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=9&Issue=3&ArticleID=25357.

10 See Wis. Admin. Code § LIRC 1.04.11 This total is based on data compiled by an information poll

of DRI members and WILG, the national bar for applicants’ attorneys.

12 For those unfamiliar with the civil system, in circuit court, the state provides court reporters at trial and during motion hearings. Parties may order a transcript at their own cost. Also, parties contract with private court reporters for deposition testimony that is taken prior to trial.

13 Wis. Admin. Code § DWD 80.14.

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Note on the “Trial Practice Series”: This is the inaugural article in a new feature for the Wisconsin Civil Trial Journal, the “Trial Practice Series,” the brainchild of Bill Wick at the Nash Law Firm, a co-author of this article.

In each upcoming issue, there will be an article on some aspect of trial and litigation practice. The intention is to provide a practical view of common aspects of the litigation and trial process. WDC members are invited to contact Bill or Andrew Hebl, the Journal Editor ([email protected]), to suggest topics that may be of interest.

Introduction

Many lawyers view the jury selection process, or voir dire, as one of the most important parts of the trial. Trial lawyers have been known to utter the phrase, “It depends on the twelve you get.” In other words, the outcome of a jury trial likely will depend on the people who make the findings of fact—the jurors. You only have one opportunity to make a first impression. In a trial, this occurs during voir dire. In addition to having a significant impact on the outcome, the voir dire process is the first opportunity trial counsel has to interact with the jury. The purpose of this Article is to discuss practical approaches to jury selection.

As a preface, the one constant in jury selection is the lack of uniformity with how it is done. Approaches

to jury selection are as numerous as there are lawyers and courts. The law provides little specific guidance about the standards and appropriate procedures, and it is evident that there is no formula or “cook book” approach to selecting a jury.

There are many views on the purpose of voir dire beyond mere selection of the jurors that will hear the case. The collateral purposes of voir dire are many and varied. Some lawyers see voir dire as an opportunity to ingratiate themselves with the jury, others as a process for educating prospective jurors about the facts of the case, and many see it as a way to rid the panel of problematic jurors and obtain people who are likely to be favorable to their client’s case. The scope of this Article is limited to the selection of jurors once they are in the courtroom.

The Applicable Law

The right to a trial by jury is guaranteed by the United States and Wisconsin Constitutions and the Wisconsin Statutes.1 The right to a jury trial may be waived and may not be available if the jury fee is not paid.

Wisconsin Stat. § 805.08 deals with the qualification and selection of jurors. The statute requires the court to examine each person to determine if they are related by blood, marriage, or adoption to any party or attorney, or have any interest in the case, or if they have expressed or formed an opinion about the case. The statute says that jurors “shall” be excused if they are “not indifferent.” The statute gives the parties the right to supplement the court’s examination as to the qualifications of a juror. The

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

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examination shall not be repetitious, or based on hypothetical questions.

Where Jurors Come From

The procedure for selecting jurors and getting them to the courthouse is set forth in Chapter 756 of the Wisconsin Statutes. The process begins with the Department of Motor Vehicles preparing a list that includes names, addresses, the county, date of birth, race, and gender of persons who are licensed drivers and those who have received a state identification card. This list goes to the Office of the Director of State Courts.

The Office of the Director of State Courts then compiles a master list of potential jurors for use by circuit courts of each county during the next year.2 In compiling the list, other sources may be relied upon, including voter registration lists, lists of child support payers and payees, orders of approvals, or licenses issued by the Department of Natural Resources. From the master list, a prospective list compiled by random selection is developed based on the number of potential jurors each clerk of court has requested for the coming year.

The clerk of court then mails a juror qualification form and jury summons to each person on the list of prospective jurors to form the jury array. From the array, twelve days before a jury is needed, the clerk of court creates a jury venire by randomly selecting a sufficient number of prospective jurors from the array. When a jury trial is to be held, the clerk randomly selects from the jury venire the number of jurors needed for trial. This is the jury panel. The panel is the jurors present for voir dire in a specific case. The panel includes enough jurors for the selection process to allow for a jury of six or twelve persons and alternates, if necessary.

The court is required to mail prospective jurors a qualification form to obtain information necessary to determine whether a person is qualified to serve. The information in the form varies from county to county. Sometimes these forms are made available to lawyers. The forms can be helpful in doing background research.

Control and Discretion of the Court

Voir dire is conducted under the supervision of the court and the exclusion of jurors is left to the discretion of the court. The court’s exercise of discretion in conducting voir dire will not be disturbed unless it is abused or a rule of law is violated.3 The court has the discretion to allow jurors to be questioned collectively, individually, and/or individually out of the presence of other jurors.4 The court is granted discretion to determine the best method for conducting voir dire.5

In preparing for voir dire, it is helpful to know the judge’s procedure for jury selection in advance. Inquiry can be made at the pretrial conference about how voir dire will be conducted. Some judges prefer to personally voir dire the jury, leaving little questioning to the lawyers. Other judges will ask questions to determine whether there are any statutory disqualifications, and then leave the bulk of voir dire to the lawyers involved. Some courts may limit the time for voir dire. It is also helpful to know what information the court has available about the background of the jurors and when and how the information can be obtained. Counsel will also want to know the method and timing of asserting challenges for cause. Some judges wish to have challenges for cause made at the conclusion of the examination by counsel outside the presence of the panel. Others wish to have challenges raised at the time the foundation has been laid in the presence of the panel. The point is, judges vary greatly in their approach to voir dire. Preparation

In an effort to be thoroughly prepared, trial lawyers should attempt to learn as much about the prospective jurors as they can prior to the jury selection process. This can be accomplished in a number of ways.

The questionnaires obtained by the clerk of court from the array may be available to counsel in advance. These questionnaires provide basic demographic information, such as where the jurors live, occupation, spouse’s occupation, children, and distance from the courthouse. If the questionnaires

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are available in advance, the procedure for obtaining them differs.

Even if the questionnaires are not provided in advance, courts in some counties may still provide counsel with a list of potential jurors for the case in advance of trial. The order in which the jurors will be selected may also be provided.

Finally, some courts provide no information about the jurors in advance. In that circumstance, the first portion of the voir dire usually involves having each juror state their name, where they live, their occupation, spouse’s occupation, whether they have children, and if they have hobbies.

If the names of potential jurors are known, Internet searches may be done. These may include searches for information on Facebook, Twitter, LinkedIn, Instagram, Google, and CCAP. This information can give insight into the jurors’ likes, dislikes, and activities, and can provide information that may be useful in assessing the jurors’ attitudes, interests, and activities.

On occasion, courts will use attorney-drafted questionnaires specific to the case to additionally screen prospective jurors. These questionnaires can be fairly extensive and their use is usually limited to major cases where the potential jurors are likely to know parties or witnesses, or where there has been extensive pre-trial media coverage. When questionnaires are used, the usual procedure is to have counsel submit proposed questions to the court, who decides on the content, and then the court sends the questionnaires to the prospective jurors with a request that the questionnaires be completed and returned. This is usually done at the expense of the parties. The completed questionnaires are made available to counsel for review and, frequently at the pretrial conference or in advance of trial, a conference is held to eliminate jurors for cause or by stipulation based on the responses. The jury questionnaire can generally encompass most of the questions that counsel are likely to ask during the voir dire process, subject to specific follow-up.

With the ever-increasing emphasis on science-based decision making, jury consultants are being employed by counsel more and more. Jury consultants have been used to help develop a science-based approach to jury selection, including a profile of favorable and unfavorable jurors. In addition, jury consultants may participate in the voir dire process by observing body language and assessing responses to determine if jurors’ responses would put them in the favorable or unfavorable category. The use of jury consultants is usually limited to large, high profile cases. Jury consultants can also help develop the criteria necessary for a favorable juror, help identify hidden biases, and assist in pretrial research.

Identifying Juror Attitudes

In many ways, jury selection is more art than science. The purpose of voir dire is to allow lawyers to assess and become acquainted with the beliefs and attitudes of potential jurors. The voir dire process may be aptly described as de-selection rather than selection. The ultimate goal is to eliminate persons with life experiences that may result in a tendency to favor the opposition.

Juror selection has traditionally been based on stereotypes and anecdotal information. Generalizations, such as women will be harder on women, young persons will be more favorable to other young people, and heavy people are more forgiving, have been used. Traditionally, jurors who have been felt to be more favorable to the defense are those who are older, educated, own businesses, are working, have family ties, and have not previously been involved in a lawsuit. Those who anecdotally have been considered to be more favorable to the plaintiff are those who are young, liberal, and those who have previously suffered injuries. It has been assumed that juror occupations that defendants may wish to avoid include doctors, lawyers, teachers, clergymen, social workers, and counselors. One may think that a person in the same profession or occupation would favor a similar profession or occupation. However, that assumption may not be accurate. Professionals or workers in a field may have their own way of doing things that may not be

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the same as the professionals or workers involved in the case, and these jurors may end up having greater influence during deliberations due to their perceived familiarity with the issues.

That said, although anecdotal or stereotypical beliefs regarding demographics are not necessarily to be disregarded, selecting jurors solely based on them is probably imprecise, at best. Instead, the current trend in jury selection is to be more science-based and emphasize the psychological factors that influence decision making. It is reported that jurors develop a hypothesis early on, process information to prove that their hypothesis is correct rather than incorrect, and give preferential treatment to evidence and testimony supporting their pre-existing beliefs. This is known as confirmation bias. Basically, it means that jurors, like all people, have a tendency to hear only those things that tend to support their pre-existing views and disregard the rest. Thus, voir dire should be directed to learning about the pre-existing beliefs and attitudes of jurors.

Demographic factors alone do not confirm bias.6 Thus, information about a juror’s personal and emotional commitment to circumstances that are relevant to the case should be used in the selection process. The juror’s personal experiences with issues similar to those in the case may show favorable or non-favorable attitudes. Questions directed to experience in circumstances similar to those in the case may reveal attitudes and emotional commitments that indicate bias. For example, a juror’s experience in dealing with significant injuries or suffering and/or death involving infants, children, adolescents, or parents will provide insight into bias for one party or the other in personal injury cases. Thus, to delve into the potential for confirmation bias, the jurors should be asked collectively about an experience similar to the facts of the case and then, for jurors who have had such an experience, whether that experience will cause the juror difficulty or raise a degree of concern for a person similarly situated, such as the plaintiff. Sometimes, observations of personality and interaction with other jurors, and simply observing the juror’s demeanor during questioning, can provide meaningful information about that juror’s likely predispositions.

An additional function of voir dire is to identify potential jury leaders. It is useful to attempt to identify jurors who may be influential and what attitudes they are likely to have. For example, in cases involving medical or financial issues, health care professionals may have disproportionate influence during deliberations. The same will go for accountants, bankers, or bookkeepers in cases involving financial matters. Whether having a leader on the panel is desirable or not will depend upon the facts and circumstances of the specific case.

Examination of Jurors

When beginning voir dire, most counsel will introduce themselves. Often, the jury is then advised that the term “voir dire” is French for “to speak the truth.” The jury may be told that the purpose of voir dire is to obtain people to decide the case that are indifferent, who have no bias or prejudice, are not favoring or “leaning” toward one side, and who will put all of the parties “on a level playing field.” Counsel usually state that the goal is to obtain fair and impartial jurors without invading their privacy while doing so. The jury is told that the purpose of voir dire is to learn of any personal experiences that will cause the jurors to have a tendency to favor one side over the other.

When counsel is questioning the panel, the preferred approach is for collective questioning of the group with follow-up questions to individual jurors based on the responses. Less commonly, some judges may allow individual voir dire of each juror absent a collective question being asked first. Counsel’s questioning to the prospective jurors may take the form of a general question such as, “Have you ever been involved in a lawsuit?” The follow-up questions to individual jurors who give positive responses may then include asking about the type of suit, whether it was resolved successfully, and whether the experiences caused the person to be biased.

Counsel may also ask if a juror has an aversion to dealing with a particular topic, such as pain of death, viewing graphic photographs, or dealing with certain conditions or injuries. For particularly sensitive

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issues, such as dealings with alcohol, drug addiction, sexual assault, significant injury or death of loved ones, or any specific experience that may have had an impact on prospective jurors that would cause them to exhibit some form of favoritism, counsel may ask the court to ask the questions instead, as it is believed that a more truthful response may be given to the court than to counsel for the parties in such circumstances. An additional benefit of having the court ask these types of particularly difficult or intrusive questions is that none of the parties ends up getting “punished” for asking them. That is, difficult or intrusive questioning of jurors by counsel for one of the parties may cause the jury to develop a negative impression of that attorney or party due to a perceived invasion of the juror’s privacy. Having the court ask these types of questions instead may help to reduce or eliminate this concern.

Safe questions such as “can you follow the court’s instructions?”, “will you be fair?”, and/or “can you keep an open mind until the end of the trial?” are questions that will rarely get a negative response, and may not be particularly informative in identifying problematic panel members. Jurors, like any people, want to believe that they are fair and impartial. Instead, questions that tend to elicit evidence of potential confirmation bias will be more helpful.

The statute prohibits hypothetical questions. “Hypothetical” is not defined. The court has wide discretion in determining if a question is, in fact, hypothetical. The determination may be a matter of semantics. A question asking if a juror is willing to award $100,000 for a broken leg is likely to be considered objectionable, but a question asking if the juror has a maximum damage amount that will not be exceeded for a broken leg will probably not be considered objectionable.

Additional questions that are objectionable include those that are misleading, that misinform, that ask for a pledge, or those that incorrectly state the law. However, there are no specific guidelines to determine what questions are objectionable. Ultimately, the determination rests with the sound

discretion of the court. Questions should be asked that are relevant to determine whether a particular juror will be unbiased with regard to the specific issues in the case.

Questioning the Panel

If general questioning is employed, questions may be directed to the generic “you.” The panel should be advised that “you” includes the juror, his or her family, i.e., husband, wife, children, grandchildren, parents, brothers, sisters and in-laws, and close personal friends. The attorney usually introduces himself and members of his firm. Often, judges ask counsel to identify the witnesses likely to be called in order to find out if any of the jurors know any of the witnesses and whether this will raise potential biases. Inquiry may then turn to the following subjects:

• Experience with the legal system – Prior jury service• Foreperson• Criminal versus civil• Outcome of the case

– Party to a lawsuit – A witness – Legal training (attorney, paralegal, judge, bailiff, clerk, etc.)

• Legal procedures – Order of presenting evidence – Burden of proof

• Experience with claims – Making a claim – Claim made against you – Bad experience with a claim (insurance company, claim adjustment, lawyer)

– Whether it was resolved to your satisfaction

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• Experience with the subject matter of the lawsuit – Involvement in similar situations (auto accident, construction project, etc.)

– Types of injuries or damages – Witnesses to be called

• Investigation experience, i.e., law enforcement, insurance adjuster, etc.

• Attitude toward legal resolution of disputes – Lawsuit is an improper way to resolve a dispute

– Frivolous lawsuits• Attorney advertising

– Defense counsel does not and plaintiff does

– Effect of plaintiff’s ad• Media influence, i.e., portrayal of lawyers

and litigation in movies, books, and on TV• Experience in any profession involved in

the suit – Medical – Construction – Engineering – Economics – Accounting

• Attitudes toward liability – Bad things can happen to good people – There can be injury or defect without fault – Negligence or fault may have no bearing on the outcome

– If a lawsuit is commenced, the plaintiff should recover

• Damages – Causation (not related as claimed) – Fair and reasonable

• Familiarity with other members of the panel

A question that lacks formality may be used to obtain information about jurors’ attitudes without prying, such as, “Have you placed a bumper sticker on your motor vehicle, and if so, what does it say?” Such a question can give significant insight into the person’s attitudes without being overly intrusive. Another example is to ask the juror if he or she would want himself or herself as a juror if he or she was in the position of the plaintiff or the defendant. The jurors may be asked if there is any reason why they cannot devote their full attention to the evidence presented.

Disqualifying Jurors

Jurors are required by statute to be indifferent. The requirement is considered unconditional and mandatory.7 If a juror is not indifferent, the juror shall be excused. Whether a juror is dismissed for cause rests with the sound discretion of the court.8

Initially, for a juror to be qualified, he or she must be eighteen years of age, a United States citizen, and able to speak the English language. A convicted felon cannot serve unless his or her civil rights have been restored. The court has discretion to excuse jurors for undue hardship, extreme inconvenience or serious obstruction, or delay in the fair and impartial administration of justice.

Jurors may be excused for one of the three forms of bias. These are identified by the Wisconsin Supreme Court in State v. Lindell as statutory bias, objective bias, and subjective bias.9

Statutory bias occurs when a member of the panel is related by blood, marriage, or adoption to any party or any attorney appearing in the case, or has a financial interest in the outcome of the lawsuit. A potential juror meeting any of these criteria must be struck from the panel, regardless of whether he or she can be impartial.10

Subjective bias occurs when a prospective juror states that he or she cannot be fair and impartial. 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

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a juror openly admits that he or she cannot be impartial or indifferent, the juror must be excused.

Objective bias occurs when bias is inferred without a precise admission of lack of impartiality. The focus is on whether a reasonable person in the position of the juror could be impartial. There are no magic words. Objective bias occurs when the juror has a direct or personal connection with an important aspect of the case or holds a negative predisposition to the justice system that prevents the juror from being fair and impartial. To make this determination, the court needs to consider the facts and circumstances. Often, the decision is made more on how the bias is expressed, rather than precisely what is said. Objective bias is difficult to assess because most people believe themselves to be fair and impartial.

Frequently, an attempt is made to rehabilitate the juror. The side favored by the juror’s bias or lack of impartiality may ask questions to try to rehabilitate the juror. When a juror exhibits some degree of bias or favoritism, the judge will typically become involved in the questioning. The question then becomes whether the juror can put aside his or her experiences and be fair and impartial to both parties. Frequently, the response to whether the panel member can be impartial is “I think I can,” “I will try to be,” or “it may affect me but I am not sure.” For example, a panel member’s personal physician may be a key witness in the case, and the panel member admits that the doctor’s testimony will be looked on with favor as a result, but the panel member also says that he or she can be impartial in weighing opposing testimony. Whether the juror has been rehabilitated is then left to the judge’s discretion.

Counsel can ask the court to excuse a potential juror for cause. This occurs when the juror’s response demonstrates bias. As indicated before, the procedure for exercising challenges for cause varies from court to court. Some judges prefer challenges for cause at the end of voir dire. Others want the juror to be challenged at the time that the lack of indifference is expressed. Although many lawyers believe that making a challenge for cause in the presence of the panel will have a detrimental effect

on the jurors’ disposition toward their client, when the challenges are to be exercised is determined by the individual judge. Jurors may be challenged for cause if they are not indifferent, or if they show bias or lack impartiality.

The judge’s standard of granting challenges for cause may be more liberally applied early in the voir dire and become more restrictive as the number in the panel declines. Later on in the questioning, jurors who wish to avoid service have typically become educated regarding the responses that will cause them to be excused, and the judge typically becomes stricter about granting challenges as a result in order to prevent truly indifferent jurors from avoiding service by trying to suggest that they are not. The rehabilitation of a juror is usually accomplished by the juror responding that any bias or prejudice will be set aside, that the juror will be fair to both parties, and that the juror will decide the case solely on the evidence. The appellate decisions do not set forth the criteria for excusing jurors for cause with any specificity. The issue of a juror’s freedom from bias is a matter within the discretion of the court.11 Wisconsin law also provides that the court should grant challenges for cause whenever “it may reasonably suspect that circumstances outside the evidence may create bias or an appearance of bias.”12 Ultimately, this is left to the trial judge.

Peremptory Challenges

Peremptory challenges are granted to each party to excuse jurors for any reason that is not discriminatory. They are distinct from challenges for cause, discussed in the previous section, where prospective jurors are removed for recognizable bias or partiality.13

The exercise of peremptory challenges is where the de-selection process discussed above is exercised. Decisions are made based on the juror’s perceived attitudes, experiences, background, training, and demeanor relevant to the issues in the case. The decision is often more art than science. The ultimate decision may be what is generally known as a “gut feeling.”

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The statute allows three peremptory challenges to each party. Plaintiffs are deemed to be one party, and all defendants are deemed to be the other party. However, where there are two or more defendants with adverse interests, additional peremptory challenges may be allowed in the discretion of the court, not exceeding three for each defendant. Where alternate jurors are used, one additional peremptory challenge is granted for each alternate.

The jury selection process is ambiguous because the “adversity” between parties necessary for the granting of additional peremptory challenges is not defined. Often, defendants may be adverse on liability issues but aligned on damages issues. There is no statutory direction on the number of additional strikes given to the plaintiff when additional strikes are given to the defendants. In a situation with two defendants and an alternate juror, courts will often give the defendants four total strikes—i.e. two for each defendant—and the plaintiff four strikes. The procedure is for the parties to enter their strikes alternately, beginning with the plaintiff.

Conclusion

All in all, the jury selection process is based on preparation, judgment, and experience. Success may simply be the result of good luck. In the end, the result of the trial depends on the twelve you get.

William R. Wick is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. He has also been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow

of the American College of Trial Lawyers. He has also been President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA). He has also been selected to be included in Best Lawyers in America for the last ten years. Mr. Wick is a frequent lecturer on topics involving civil litigation.

Katelyn Sandfort is a member of the State Bar of Wisconsin, the Manitowoc County Bar Association, and the Wisconsin Defense Counsel. She is licensed in the State of Wisconsin and in the Eastern and Western District Courts. Katelyn’s practice covers an array of insurance defense litigation. This includes, but is not limited to, personal injury defense, construction defect litigation, and coverage issues. She also has a special interest in representing health care providers in medical malpractice lawsuits and licensing matters. In her personal time, Katelyn enjoys cooking, trail bike riding, reading, and spending time with her husband and two bernese mountain dogs.

References1 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).3 See State v. Moats, 156 Wis. 2d 74, 99, 475 N.W.2d 299

(1990); Hamill v. State, 89 Wis. 2d 404, 408, 278 N.W.2d 821 (1979).

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).6 See William Kanasky, Jr., “Juror Confirmation Bias:

Powerful. Perilous. Preventable.,” Trial Advocate Quarterly, at 34-37 (Spring 2014).

7 State v. Ramos, 211 Wis. 2d 12, 27, 564 N.W.2d 328 (1997).8 State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484

(1990).9 245 Wis. 2d 689, 740-46, 629 N.W.2d 223 (2001).10 State v. Faucher, 227 Wis. 2d 700, 717, 596 N.W.2d 770

(1999).11 Louis, 156 Wis. 2d at 478; State v. Holland, 87 Wis. 2d 567,

580, 275 N.W.2d 162 (Ct. App. 1978).12 See Newburg v. State, 75 Wis. 2d 400, 404, 249 N.W.2d 524

(1977). 13 Ramos, 211 Wis. 2d at 27.

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

Introduction

This January, the Wisconsin Supreme Court issued its decision in Seifert v. Balink, which represents the court’s first review of the standard for the admissibility of expert testimony since the

legislature amended Wis. Stat. § 907.02 in 2011 to adopt the federal Daubert standard.1 The court’s decision is a mosaic of opinions, but unfortunately lacks a majority decision that provides a framework to assist trial courts and litigators facing similar issues in the future. Four justices penned opinions—Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) drafted the “lead” opinion (which, despite its title, is only a two-justice opinion and does not contain the rationale of even a plurality of the court), Justice Michael Gableman (joined by Chief Justice Roggensack) and Justice Annette Ziegler contributed concurrences, and Justice Daniel Kelly (joined by Justice Rebecca Bradley) issued a dissent. The decision ultimately represents a missed opportunity to clarify the Daubert framework in Wisconsin.

Background Facts

The plaintiffs, David, Kimberly, and Braylon Seifert, sued Dr. Kay Balink, a family practice physician, claiming that Dr. Balink provided inadequate care to Kimberly during her pregnancy and the labor and delivery of Braylon.2 Braylon was born with a

brachial plexus injury—permanent nerve damage in his shoulder—caused by a shoulder dystocia during delivery.3 Shoulder dystocia is a life-threatening condition caused when an infant becomes caught on the mother’s pubic bone during delivery and is unable to travel through the birth canal.4

The plaintiffs’ case, like all medical malpractice actions, hinged on expert testimony.5 They retained Dr. Jeffrey Wener, an OB/GYN with over 36 years of experience providing prenatal and labor and delivery care, to provide several opinions critical of Dr. Balink.6 Dr. Wener’s most crucial opinion was that Dr. Balink failed to perform necessary testing to confirm that Kimberly had gestational diabetes, a risk factor for shoulder dystocia.7 Dr. Balink, to test this condition, performed a one-hour glucose screen and ruled out gestational diabetes based on Kimberly’s result of 131 mg/dl.8 Dr. Balink relied on standards promulgated by the American College of Obstetricians and Gynecologists (ACOG) in making this decision. The ACOG standards stated that a normal glucose level is 130 to 140 mg/dl, and recommended a three-hour test if levels were higher.9 Dr. Balink relied on the 140 number and believed further testing was not needed.10

Dr. Wener testified that Dr. Balink should have performed the three-hour test because Kimberly’s glucose level exceeded 130 mg/dl, the standard he personally used throughout his practice as an OB/GYN.11 He opined that, had Dr. Balink performed this additional test, she would have confirmed that Kimberly had gestational diabetes, and that such a diagnosis, coupled with Kimberly’s weight and the size of the fetus, would have indicated a

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serious risk for shoulder dystocia.12 Dr. Wener also opined that Dr. Balink should have ordered a pre-labor ultrasound and avoided the use of a vacuum device to assist with delivery.13 The jury returned a verdict for the plaintiffs, finding that Dr. Balink had breached the standard of care in her management of Kimberly’s pregnancy and Braylon’s delivery.14

Dr. Balink’s attorneys had attacked Dr. Wener’s opinions as inadmissibly unreliable under Wis. Stat. § 907.02 (incorporating the Daubert standard) in pretrial motions, motions after verdict, and on appeal.15 Each time, Dr. Balink’s attorneys had argued that Dr. Wener’s opinions were not based on reliable principles or methods that had been tested and generally accepted. Dr. Balink’s attorneys argued that Dr. Wener’s opinions should be excluded because they were instead based on Dr. Wener’s own personal preferences for practicing medicine.16 The trial court rejected Dr. Balink’s challenges to Dr. Wener, finding that his “holistic” approach was reliable, permitted him to testify, and upheld the admissibility of his testimony in motions after verdict.17 The court of appeals affirmed, and the supreme court then accepted Dr. Balink’s petition for review.18

The Supreme Court’s Several Opinions

The supreme court was unable to put forth a single opinion joined by four justices. Instead, the court issued a two-justice “lead” opinion, two concurrences (a two-justice concurrence and a one-justice concurrence), and a two-justice dissent.

Justice Abrahamson, joined by Justice Ann Walsh Bradley, authored the lead opinion holding that Dr. Wener’s opinions based on personal experience were reliable under Wis. Stat. § 907.02 and Daubert.19 However, the lead opinion did not approve of or adopt a test or framework based on the reliability factors enumerated by the Daubert court20 or the Advisory Committee’s Note on the 2000 Amendment to Fed. R. Evid. 702.21 Instead, Justice Abrahamson concluded that the classic Daubert framework was unworkable when assessing medical testimony because medicine is not a hard science prone to a set-in-stone analysis.22

Justice Abrahamson relied on several federal circuit court decisions distinguishing medicine from other fields of “scientific knowledge,”23 and concluded that “medicine is not a science but a learned profession, deeply rooted in a number of sciences and charged with the obligation to apply them for man’s benefit.”24 She believed that Dr. Wener’s opinions were reliable based on his extensive experience as an OB/GYN, and approved of his “holistic” approach.25

Justice Ziegler authored a concurrence agreeing with the lead opinion only as to its bottom line in what she termed a “close call.”26 She believed the trial court made a good record and did not erroneously exercise its discretion when admitting Dr. Wener’s testimony.27 However, Justice Ziegler wrote separately to voice her concern with the lead opinion’s failure to address the 2011 changes to Wis. Stat. § 907.02 and to provide guidance for future courts. She advocated for trial courts to “adhere to and apply the heightened Daubert-Wis. Stat. § 907.02 standard.”28

Justice Gableman, joined by Chief Justice Roggensack, concurred, joining the lead opinion’s bottom line finding that Dr. Wener’s opinions were reliable based on his personal experience.29 He wrote separately to note that medical literature is not required to support reliability and that experience is sufficient if the expert shows how that “experience makes his opinions reliable,” which he believed Dr. Wener had accomplished.30 Justice Gableman’s concurrence, like Justice Ziegler’s, advocated for at least some type of Daubert analysis based on the reliability factors identified by the United States Supreme Court and other federal panels.

Justice Daniel Kelly authored a dissent joined by Justice Rebecca Bradley.31 The dissent agreed with the lead opinion’s holding that an expert’s personal opinions could still be considered reliable, but disagreed that Dr. Wener’s opinions were admissible in the specific case.32 Instead of focusing solely on the Daubert question, Justice Kelly couched his main conclusion in terms of the standard of care.33 To prove medical negligence, Justice Kelly wrote that the plaintiffs had to identify the applicable,

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objective standard of care of a reasonable physician and show that the defendant’s conduct had breached that standard.34 Dr. Wener’s opinions, according to the dissent, did not constitute the accepted, objective standard of care of a reasonable family practice physician, and instead represented only Dr. Wener’s personal preferences for practicing medicine—i.e., a “what would Wener do” standard (WWWD).35

The Court’s Missed Opportunity to Clarify the Daubert Standard in Wisconsin

The Seifert decision represents a missed opportunity for the justices to provide guidance to trial courts and litigators moving forward. The court’s ultimate decision to admit Dr. Wener’s testimony should have been only a footnote in an opinion that provided a framework for trial courts to use when assessing Daubert issues for years to come—even if only limited to factually similar medical negligence actions.

Daubert and Fed. R. Evid. 702 impute to trial courts a “gatekeeper” function, requiring judges to confirm the reliability of all expert testimony, whether based on “scientific, technical or other specialized knowledge.”36 Trial courts are given broad discretion to make this call by using any relevant combination of the myriad factors that have been identified by the United States Supreme Court and the Advisory Committee.37 Those factors, which are fluid based on the facts and experts presented, include:

1. Whether the methodology can and has been tested;

2. Whether the technique has been subjected to peer review and publication;

3. The known or potential rate of error of the methodology; and

4. Whether the technique has been generally accepted in the scientific community.38

Appellate courts faced with reliability issues have taken it upon themselves to identify additional factors that they have found helpful, as identified by

the 2000 Amendment to the Advisory Committee Note. These additional factors include:

1. Whether experts are “proposing to testify about matters growing naturally and di-rectly out of research they have conducted independent of the litigation, or whether they have developed their opinions ex-pressly for purposes of testifying”39;

2. Whether the expert has unjustifiably ex-trapolated from an accepted premise to an unfounded conclusion40;

3. Whether the expert has adequately ac-counted for obvious alternative explana-tions41;

4. Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consult-ing”42; and

5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.43

Seifert was the Wisconsin Supreme Court’s first opportunity to provide guidance to trial courts since the Wisconsin Legislature adopted the Daubert standard in 2011. Prior to Seifert, the supreme court had yet to weigh in on which of these factors, if any, were appropriate to use to determine the reliability of medical expert testimony. The Seifert decision, while providing a thorough overview of the Daubert framework as applied by various state and federal courts, unfortunately does nothing to articulate a standard for Wisconsin trial courts, despite a majority of justices advocating for a heightened standard of admissibility.44 The decision, in total, represents a single-case review based on the specific facts presented, rather than a decision that develops, clarifies, or harmonizes the law, which is the usual purpose for supreme court review.45

The two-justice lead opinion foregoes applying any Daubert factors to determine reliability. The opinion states that “medicine is not a science” subject to a reliability analysis.46 However,

27

regardless of what adjective is used to describe the practice of medicine, a Daubert analysis is still needed to confirm the reliability of medical expert testimony. The United States Supreme Court and the Advisory Committee have confirmed that Rule 702 “does not distinguish between scientific and other forms of expert testimony”; rather, a “trial court’s gatekeeping function applies to testimony by any expert.”47 While not all factors may apply to medical testimony—and different factors would undoubtedly apply to different medical fields—the court should have used its review as an opportunity to identify or create a framework for future courts to use to assess the reliability of medical expert testimony under Daubert.

The only holding agreed upon by a majority of the court was that an expert’s past experience can render his testimony reliable. This holding, though, is nothing new; it is a staple of Daubert jurisprudence recognized since the United States Supreme Court’s 1999 decision in Kumho Tire.48 But the lead opinion in Seifert does not take this hornbook rule of law to its needed conclusion—determining “how that experience leads to the conclusion reached, why that experience is a sufficient basis for that opinion, and how that experience is reliably applied to the facts.”49 Answering this question undoubtedly requires assessing the medical testimony in light of the factors identified by Daubert and the Advisory Committee, including general acceptance and the reliability of specific methods.50

Justices Gableman and Ziegler were keen on this assessment in their concurrences, with Justice Gableman advocating for a rule in which an expert must demonstrate the reliability of his personal preference/methods and Justice Ziegler advocating for a heightened Wis. Stat. § 907.02 standard.51 However, a majority of the justices simply could not agree on any given approach. As things currently stand, trial courts and litigators are left with a non-binding holding that personal experience can render medical testimony reliable—nothing more.

Using Available Literature to Assess Reliability

The individual opinions generally touch on the use of literature in assessing reliability, with a majority of the justices agreeing—rightfully so—that medical literature is not required to render an expert’s opinions reliable under Wis. Stat. § 907.01.52 But the court did not expand on this holding to educate future judges and lawyers about the proper role of relevant medical literature in a Daubert analysis and, in particular, failed to offer any guidance regarding whether available literature from a respective organization or medical group should be used to assess whether an expert’s opinion is generally accepted.

Literature providing standards of practice can be found in every major field of medicine.53 The organizations behind the literature are focused predominantly on educating clinicians in their fields by providing guidelines and standards for the everyday practice of medicine.54 This literature is undoubtedly useful in determining accepted practices and, therefore, is relevant when assessing the reliability of an expert’s opinions and testimony. It is obvious that an expert’s opinion contrary to accepted published standards should be scrutinized more closely than testimony that conforms to those standards.

In Seifert, the defense relied heavily on the American College of Obstetrics and Gynecology’s standards for performing glucose testing.55 ACOG is a professional organization focused on producing “practice guidelines and other education materials” for practicing OB/GYNs.56 Its standards and “practice guidelines” are accepted in the obstetrics field and followed by credentialed OB/GYNs across the country.57 The parties disputed the importance of these standards, however, with Dr. Wener advocating for a 130 mg/dl threshold instead of the 140 mg/dl level that was permitted by the ACOG standards.58

The court acknowledged the ACOG literature and the parties’ contrary opinions as to glucose testing standards, but failed to incorporate the literature

29

into its holdings or to identify the role of this literature in assessing the reliability of the expert. While applying the literature in Seifert may not have changed the outcome, it is hard to imagine a scenario where relevant and generally accepted guidelines and standards from prominent medical organizations would not be useful in assessing the reliability of medical experts—especially if an expert’s personal preference opinions are contrary to those accepted standards.

The “Standard of One” Problem

As discussed in Justice Kelly’s dissent, acceptance of Dr. Wener’s personal preference opinions may cause problems with the legal standard in medical negligence actions. Medical malpractice turns on a plaintiff’s ability to identify the applicable standard of care and prove that the defendant’s care or treatment breached that standard.59 In terms of standard of care, a physician is only required “to use the degree of care, skill, and judgment which reasonable doctors [who practice the same specialty] would exercise in the same or similar conditions.”60 The question is not what a single provider, or expert, would have personally done when treating the plaintiff, but what objective physicians in the same field would do when treating like patients. Yet the court’s lead opinion in Seifert could lend itself to the admission of personal preference opinions to prove a breach of the standard of care, and this is the result criticized by Justice Kelly’s dissent.61

Justice Kelly recognized that, although Dr. Wener was qualified based on his personal experience, and able to render his opinions reliable based on the same, the applicable legal standard in malpractice cases still required him to “be familiar with what is generally expected of reasonably qualified practitioners under similar circumstances.”62 Dr. Wener did not identify such a standard, but rather testified only as to his own practices, and in essence created a “standard of one” by which the jury measured Dr. Balink’s care.63 This creates a troubling precedent, because a physician’s treatment must be measured against the reasonable practices of his medical field, not the subjective beliefs of

a single, for-pay expert whose sole purpose is to criticize and discredit. The lead opinion implies that medical experts should be permitted to testify about standard of care opinions based solely on their personal clinical methods or beliefs, instead of identifying the standard of care that is generally accepted in practice.

Conclusion

All in all, Seifert represents a missed opportunity for the Wisconsin Supreme Court to provide guidance regarding the Daubert standard, particularly in the context of medical testimony. Unfortunately, it may be some time before the court issues a new opinion on this topic. Hopefully, when that happens, the court will at least be able to generate a majority opinion with insights into how the standard should be applied by trial courts. For now, all we can do is wait.

Ryan M. Wiesner and Brent Simerson are associates with Leib Knott Gaynor LLC, a Milwaukee-based litigation outfit specializing in defending complex litigation in state and federal courts across the county. Ryan and Brent focus their practices on representing hospitals, physicians, and other licensed professionals in catastrophic negligence cases, and defending municipalities and their employees in high-stakes civil rights litigation. They also handle cases involving commercial and business disputes, products liability, medical device litigation, and other complex torts. Ryan and Brent can be contacted at [email protected] and [email protected]. For more information on their practice and LKG please visit LKGlaw.net. References1 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816.2 See id.3 Id., ¶¶ 3, 203.4 Id., ¶¶ 28, 203; see also http://www.emedicinehealth.com/

script/main/art.asp?articlekey=39656 (last visited March 6, 2017).

5 Carney-Hayes v. Northwest Wis. Home Care, Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524 (holding that plaintiff must present expert testimony to prove a health care provider’s breach of the standard of care).

6 Seifert, 372 Wis. 2d 525, ¶¶ 5, 40.

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7 Id., ¶ 46.8 Id., ¶ 22.9 Id., ¶ 127.10 Id.11 Id., ¶¶ 46, 127. 12 Id., ¶¶ 44, 46.13 Id., ¶ 271.14 Id., ¶ 9.15 Id., ¶ 58.16 Id., ¶¶ 37, 104, 133.17 Id., ¶¶ 8, 102, 109, 120.18 Id., ¶¶ 8, 14, 94.19 Id., ¶ 15.20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993).21 Fed. R. Evid. 702, Advisory Committee Note, 2000

Amendment. 22 Seifert, 372 Wis. 2d 525, ¶¶ 77-79.23 Id. (quoting Sullivan v. U.S. Dep’t of the Navy, 365 F.3d

827, 834 (9th Cir. 2004)).24 Id., ¶ 79 (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th

Cir. 2010)) (relying on “classic medical school text,” Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. Smith, Jr., eds., 17th ed. 1985)).

25 Id., ¶ 15.26 Id., ¶¶ 169-170.27 Id.28 Id., ¶¶ 169-191.29 Id., ¶ 192.30 Id., ¶ 194.31 Id., ¶ 258.32 Id.33 Id.34 See Wis. JI-Civil 1023.35 Seifert, 372 Wis. 2d 525, ¶ 267.36 Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141 (1999). 37 Kumho Tire, 526 U.S. at 141.38 Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir.

1999) (citing Daubert, 509 U.S. at 592-93).39 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d

1311, 1317 (9th Cir. 1995).40 See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)

(noting that, in some cases, a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”).

41 See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (excluding testimony where the expert failed to consider other obvious causes for the plaintiff’s condition).

42 Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); see Kumho Tire, 526 U.S. at 149-50 (recognizing that Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”).

43 See Kumho Tire, 526 U.S. at 149-150 (recognizing that Daubert’s general acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy”).

44 Seifert, 372 Wis. 2d 525, ¶¶ 54, 169, 223.45 Wis. Stat. § 809.62(1r).46 Seifert, 372 Wis. 2d 525, ¶ 79.47 Daubert, 509 U.S. at 589-90; see also Kumho Tire, 526

U.S. 137; Fed. R. Evid. 702, Advisory Committee Note, 2000 Amendment (emphasis added).

48 Kumho Tire, 526 U.S. at 147-151.49 Fed. R. Evid. 702, Advisory Committee Note, 2000

Amendment.50 Kumho Tire, 526 U.S. at 151.51 Seifert, 372 Wis. 2d 525, ¶¶ 169-170, 194.52 Id., ¶¶ 129, 194, 235, 240.53 See https://www.jointcommission.org; https://www.acr.

org; http://www.aaem.org; https://www.aap.org/en-us/Pages/Default.aspx (last visited March 6, 2017).

54 Id.; see, e.g., http://www.acog.org/About-ACOG/About-Us (last visited March 6, 2017).

55 Seifert, 372 Wis. 2d 525, ¶ 127.56 http://www.acog.org/About-ACOG/About-Us (last visited

March 6, 2017).57 Id.58 Id.59 Wis. JI-Civil 1023; Carney-Hayes v. Nw. Wis. Home Care,

Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524.60 Wis. JI-Civil 1023; Jandre v. Wis. Injured Patients &

Families Comp. Fund, 2012 WI 39, ¶ 95, 340 Wis. 2d 31, 813 N.W.2d 627.

61 Seifert, 372 Wis. 2d 525, ¶ 258.62 Id., ¶ 268 (citing Francois v. Mohrohisky, 67 Wis. 2d

196, 201-202, 226 N.W.2d 470 (1975) (“The standard to which [physicians] must conform … is determined by the practices of neither the very best nor the worst of the class. Like automobile drivers, engineers, common laborers, and lawyers, they are obliged to conform to reasonable care in the circumstances.”)).

63 Id., ¶ 277.

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

The Seventh Circuit’s recent decision in Ortiz v. Werner Enterprises1 is the source of the title of this Article. Ortiz held that the evidentiary tests using the quoted words in deciding prior employment discrimination cases are no longer appropriate. Before addressing the Seventh Circuit’s treatment of these problematic words, however, a quick review of the burden of proof in employment discrimination cases under Title VII will be helpful.

Under the McDonnell Douglas Corp. v. Green2 framework,3 the plaintiff in an employment discrimination case bears the burden to produce evidence sufficient to support a finding that: (1) the person is a member of a protected class; (2) the person was meeting the employer’s legitimate expectations; (3) the person suffered an adverse employment action; and (4) similarly situated employees who were not members of the protected class were treated more favorably. If the plaintiff establishes those elements, the employer must then articulate legitimate and nondiscriminatory reasons for the allegedly discriminatory action. If that happens, the burden then shifts back to the plaintiff to show that the employer’s proffered reasons were mere pretext for its discriminatory motives. Pretext “means a dishonest explanation, a lie rather than an oddity or an error.”4

Because of confusion over who had the burden of production, the burden of proof, and what was considered to be proof, the Seventh Circuit in Ortiz did away with the evidentiary tests that the courts in the circuit had been using based on so-called “direct” and “indirect” evidence and a “convincing

mosaic.” In making this change, however, the Ortiz court stated as follows:

One point of clarification may be helpful. The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), sometimes is referred to as an “indirect” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand.5

The McDonnell Douglas method is not the only method to assess circumstantial evidence in employment discrimination cases. In deciding a summary judgment motion, for example, the question is whether the non-moving party has produced sufficient evident to support a jury finding of intentional discrimination. This method also remains viable after the Ortiz decision.6

Convincing Mosaic

While the McDonnell Douglas method has to do with the burden of proof concept, the Seventh Circuit was concerned that in employment discrimination cases, trial courts often looked at the evidence as either “direct” or “indirect.” “Admissions of culpability and smoking-gun evidence were assigned to the ‘direct’ method … while suspicious circumstances that might allow an inference of discrimination were assigned to the ‘indirect’ method.” 7 In assessing this evidence using these methods, the Ortiz court’s criticism was that the district “court

33

did not try to aggregate the possibilities to find an overall likelihood of discrimination,” as it should have.8

In a prior attempt to eliminate the distinction between “direct” and “indirect” evidence, the Seventh Circuit, in Sylvester v. SOS Children’s Villages of Illinois, Inc., had come up with a concept called the “convincing mosaic.” The idea was that, like a visual piece of art that is made up of little pieces, a plaintiff in a discrimination suit could combine pieces of evidence to prove discrimination.9 The concept was meant to help people understand the process, but never to be a standard of proof.10 However, the Ortiz court found that using the disparate methods and the mosaic had complicated employment discrimination litigation, and decided that “[t]he time [had] come to jettison these diversions and refocus analysis on the substantive legal issue.”11

To do this, the Ortiz court overruled previous opinions to the extent those opinions relied on the “convincing mosaic” as the governing legal standard.12 The court went on to emphasize that it was not holding that the cases were wrongly decided; the court’s only concern was putting a stop to the use of the “convincing mosaic” as a legal test.

Warning to District Courts

To emphasize that “convincing mosaic” is no longer part of employment discrimination law in the Seventh Circuit, the Ortiz court said, “From now on, any decision of a district court that treats this phrase as a legal requirement in an employment-discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.”13

The Correct Legal Test Is Still Not the “Direct” or “Indirect” Evidence Test, Either.

In putting an end to the “convincing mosaic,” the Seventh Circuit in Ortiz also repeated what it had written in prior cases, such as Sylvester, that the test

is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action. Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the “direct” evidence does so, or the “indirect” evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled “direct” or “indirect.”14

Once again, the court overruled portions of cases that used the “direct” and “indirect” framework, while at the same time reiterating its position that it was not changing the results of those prior decisions.15 Because Ortiz overruled two lines of cases, the opinion was circulated to all judges in active service, and no judge favored a hearing en banc.

Counsel practicing in employment discrimination would be well-advised to carefully study the Ortiz decision, as it is now the law in the Seventh Circuit. Indeed, the Ortiz decision has already been the basis for a summary judgment decision in the Western District of Wisconsin.16

Impact on Lawyers

Before Ortiz, it would be fair to say that lawyers, and probably some judges, looked at the lack of so-called “direct evidence” in an employment discrimination case to mean that the plaintiff did not have the strongest case of discrimination. This left the plaintiff turning to so-called “indirect” evidence, or weak evidence, in trying to put together enough evidence to convince the trier-of-fact. Defense attorneys, among other things, would argue that the lack of “direct” evidence showed that the other evidence put forward by the plaintiff was not that reliable.

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For example, often a plaintiff would put forward as evidence the fact that the employer took an adverse action after the plaintiff undertook a protected activity. This temporal relationship, without more, was considered a type of weak evidence, or “indirect evidence.” “But it is well established that ‘mere temporal proximity between [the statutorily protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue.’”17

In this circumstance, a defendant would try to show the weakness of each piece of “indirect” evidence, that the various employer actions were isolated from each other, and that, once each item of “indirect” evidence was thrown out, there was nothing left to prove discrimination.

The Ortiz court rejected these efforts to characterize evidence as “direct” or “indirect,” holding instead that “evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled ‘direct’ or ‘indirect.’”18 A few paragraphs later, the court said “all evidence belongs in a single pile and must be evaluated as a whole.”19

Conclusion

Despite its elimination of the “convincing mosaic” and the distinction between “direct” and “indirect” evidence, the Ortiz decision still leaves a number of unanswered questions. For example, can each piece of evidence be evaluated separately anymore? And, if so, when the evaluation is done, is the evidence pulled from or kept in the “pile?” Further, does the amount and “relevancy” of the evidence in the “pile” in and of itself determine the end result? Is the lack of a “smoking gun” to be considered “relevant” evidence, or even evidence at all? And, if the evidence is part of the “pile,” how is that evaluated or valued against the other evidence?

As the court said, “with the rat’s nest of the surplus ‘test’ removed from the law of the circuit, our

analysis [of an employment discrimination case] is straightforward.”20 It will now be interesting to see if the court’s decision accomplishes its goal or simply creates another “nest,” or “pile,” to be cleaned up in the future. It will also be interesting to see whether Wisconsin’s Equal Rights Division or our state courts will adopt this new analysis.21

David R. Friedman is a solo practitioner in Madison who has been working with Wisconsin public schools and private employers on labor and employment law matters since 1973. He has made presentations on labor and employment law topics to the National Association of School Boards, NSBA’s Council of School Attorneys, Education Law Association, Wisconsin School Attorneys Association, State Bar of Wisconsin, and National Business Institute. For a number of years, he taught a course in collective bargaining and contract administration as an adjunct professor at the University of Wisconsin-Madison School of Education and at the University of Wisconsin-Whitewater in its School Business Manager program. David is listed in Best Lawyers in America® and also as a Wisconsin Super Lawyer. He is a member of WDC’s newly formed Employment Law Committee.

References1 834 F. 3d 760 (7th Cir. 2016).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. Jan. 13, 2017) (unpublished decision).

4 Kulumani v. Blue Cross Blue Shield Ass’n., 224 F.3d 681, 685 (7th Cir. 2000).

5 Ortiz, 834 F.3d at 766.6 See Celeste David v. Board of Trustees of Community

College District No. 508, ___ F.3d ___ (7th Cir. 2017) (decided January 13, 2017).

7 Ortiz, 834 F.3d at 763.8 Id.9 Sylvester v. SOS Children’s Villages of Ill., Inc., 453 F.3d

900, 903 (7th Cir. 2006).10 Ortiz, 834 F.3d at 764.11 Id.12 Hatcher v. Board of Trustees of Southern Illinois University,

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 (7th Cir. 2012); Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674 (7th Cir. 2012); Silverman v. Board of Education

37

of Chicago, 637 F.3d 729, 734 (7th Cir. 2011); Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Koszola v. Board of Education of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003); Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088-89 (7th Cir. 2000).

13 Ortiz, 834 F.3d at 765.14 Id.15 Andrews v. CBOCS West, Inc., 743 F.3d 230 (7th Cir. 2014);

Silverman v. Bd. of Ed. of Chi., 637 F.3d 729 (7th Cir. 2011); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487 (7th Cir. 2007); Rhodes, 359 F.3d 498; Haywood v. Lucent Technologies, Inc., 323 F.3d 524 (7th Cir. 2003); Oest v. Illinois Department of Corrections, 240 F.3d 605 (7th Cir. 2001); Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th 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).

16 See Balele v. Olmanson, No. 13-cv-783-jdp, 2017 U.S. Dist. LEXIS 3258, at *19 (W.D. Wis. Jan. 10, 2017) (unpublished).

17 Ripberger v. Corizon, Inc., 773 F.3d 871, 883 (7th Cir. 2014) (quoting Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)).

18 Ortiz, 834 F.3d at 765.19 Id. at 766.20 Id.21 Because the question of the order and nature of proof in

sex discrimination cases has not been addressed by the Wisconsin Supreme Court, the Wisconsin courts generally, and DILHR consistently, have applied the standards developed by the federal courts in Title VII actions as set forth in McDonnell Douglas. See, e.g., Waukesha Pub. Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).

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Introduction

Preparing for an appellate oral argument can be both exciting and daunting, especially if you lack prior appellate experience. While there is no method of preparation that works for everyone, using a few of the tips below may ease your stress. Undoubtedly, you will get different advice from a number of attorneys. At the end of the day, you should create a plan that fits your comfort level. The best advice, however, is to be very prepared. Unquestionably, preparedness will give you the confidence you need to tackle your first oral argument.

1. Plan Your Calendar.

It is important that you set aside sufficient time to prepare for your argument. First timers may underestimate how much time it actually takes to prepare, which may mirror that of preparing for a jury trial. Depending on the complexity of your case, you might need to set aside an entire week, including weekend. Also remember that, in all likelihood, by the time oral argument is scheduled, you will have forgotten many of the factual and legal details from the briefs that you will need to re-learn, and perhaps even re-learn at a level exceeding what was required for you to write the briefs in the first place.

Further complicating this is that oftentimes, you will not receive much advance written notice of when your argument will be scheduled, which can 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

potential date conflicts prior to the scheduling of oral argument.1 It is important that you know about this rule because the court is extremely reluctant to reschedule an argument after it has been noticed. Accordingly, once you know that oral argument has been requested and immediately after the reply brief is submitted, you should write the court and alert it to scheduling conflicts you have over the next several months.

2. Re-Read the Briefs and the Lower Court’s Ruling.

This is a great starting point. Try reading the briefs in order, which is likely the same way the judges on your panel will read them. It goes without saying that, if you represent the appellant, review these documents with an eye towards how the lower court’s decision was incorrect. If you represent the appellee, review these documents with an eye towards how the lower court got it right.

3. Know the Record Inside and Out.

In many cases, the judges are more interested in asking practical, record-related questions about the facts of the case, rather than legal questions. As such, it is critical that you know your record extremely well. You should also be keenly aware of what is not in the record so that you can promptly and politely alert the court in the event your opponent presents arguments based upon information not in the record.

Tackling Your First Appellate Oral Argumentby: Kathryn A. Harrell, Boardman & Clark LLP

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4. Prepare an Outline and Structure Your Argument.

Preparing and revising an outline at the beginning of your preparation has tremendous value. Most experienced appellate attorneys advise you to avoid creating a word-for-word script, as you may get too bogged down in a rehearsed speech that you are not likely to get through anyway. However, writing down a word-for-word script with respect to some aspects of your case can make sense at the outset, and this may be a useful tool so long as you abandon the script by the time of argument. This is particularly true with respect to your opening statement, which is often the most speech-like portion of your argument. When presenting, it is important that you make eye contact with the judges and advocate in a conversational tone. An outline will facilitate this type of advocacy better than a verbatim script.

In preparing your outline, you should be mindful that how you order the issues most likely will not be the direction your argument takes due to questioning by the judges, who often want you to address specific issues immediately rather than waiting for you to discuss them when they come up in your outline. With the exception of your opening and closing statements, then, you should be prepared to jump to any part of your outline at a moment’s notice. Because of this, you should practice your outline out of order. Remember that an outline is a tool to help organize your thoughts. It should not be your crutch. You might start with a long detailed outline, but that should not be what you bring with you to the podium. By the time of argument, you should try to condense your outline to several pages that contain key words and phrases.

With respect to structuring your argument, you should anticipate the biggest issue in the case and address that first. Saving that issue for the end or building it up throughout your argument makes little sense as you will run the risk of running out of time before you can address it. Also, either at the outset of your argument or after your opening statement, you should address the key points made by your

opponent. Completely ignoring your opponent’s argument is a mistake. Indeed, the judges may have trouble paying attention to your argument at all if they are fixated on an elephant in the room which you have not addressed. It is also important to address your opponent’s argument in order to show the judges that you can think on your feet.

5. Prepare a List of Important Record Cites and Cases.

Many new attorneys may wonder whether they have to memorize every case, with cites, that appears in the briefs. Generally, this is not necessary, although you should be prepared to state the applicable standard of review and relief sought without resorting to an outline. Instead, you should focus on the critical cases. Knowing the names of the key cases and the significant facts or holdings from those cases should be sufficient. Most seasoned appellate attorneys will tell you that, unlike in law school, the judges rarely quiz you on a case to test your memory. Use of specific case names should be done sparingly. Unless a case is critical to the court’s analysis, it is best not to throw around case names.

In addition to your outline, you should consider making a one-page list of significant record cites and cases that you can bring with you to the podium and refer to if necessary. This should not be a long document that you have to page through, as that may appear sloppy. Rather, this is a quick reference guide in the event you need it. Similarly, you should not bring with you to the podium binders and binders full of briefs and cases.

6. Anticipate the Questions You Will Receive.

As you prepare for your argument, ask yourself why the court granted the oral argument request in your case. Consider the weaknesses of your case, even if your opponent has not done a good job addressing them. Not only should you consult with other attorneys in your office who worked on the case with you, but it is an excellent idea to have a few attorneys who know nothing about the case review

43

the appellate briefs and tell you what questions they think will be thrown in your direction. Try this with attorneys who have different practices than you. Their anticipated questions may be very different from what you anticipated, so it is best to have this discussion towards the beginning of your preparation rather than at the end in the event you need to develop responses to unanticipated questions.

While judges know that they can only consider the record evidence in rendering their decisions, nonetheless they may ask you a question about an issue or fact that is outside the record. Hopefully, you have anticipated this sort of question and have a response. Don’t be afraid to get insight from your client or another source prior to argument about background and contextual details of the case that are not part of the record but that may nevertheless generate questions from the panel. At the very least, knowing that you did this will help you feel more comfortable.

7. Listen to Other Oral Arguments and Know What to Expect on the Day of Your Argument.

If you have never attended or listened to an oral argument before your first one, then you should certainly do so. You can access oral arguments before most appellate courts online for free. While it largely depends on the nature of the case, many judges seem to focus on the real-life implications of their decisions. To that end, their questions often seem more practical, focusing on the facts rather than the nuances of the law that have already been briefed. You should keep this in mind as you prepare.

If there are similar cases you have cited that were before the same court and you have the ability to listen to an argument from those cases, then do so. While you probably won’t get the same panel of judges, the more you can familiarize yourself with the process, the more prepared you will feel.

If you are going to the argument alone, it is a great idea to talk to someone who has done it before and who can walk you through what to expect on the big day, ranging from security checks to how cases transition from one to the next in the event multiple cases are scheduled for argument at the same time. In the event you know your panel of judges before the day of your argument, do your research and listen to arguments from cases over which they have presided. This will give you a good sense of their style of questioning.

8. Practice with Co-Workers and Friends or Family.

This is one of the most critical steps. The more you rehearse your argument out loud, the more comfortable you will be. Get used to saying important case names and difficult legal phrases out loud. Practice in front of different people, including family members who won’t be afraid to give you honest feedback. Practice in locations other than your office. This could be in your car, on a walk, or in the shower. The more you practice, the more confidence you will have.

9. Additional Tactics and Skills to Use During Argument

It is impossible to address all the tactics that can be used in oral argument, but remembering a few key ones should help. First, if you are asked a question, be straightforward and answer it directly. Start with a “yes” or “no” response followed by an explanation. Avoiding a question will cause you to lose credibility with the panel. Second, if you are asked to concede a point that is not in your favor, don’t be afraid to do so. Acknowledging points unfavorable to your position that you really have no basis to dispute will help you gain credibility. Third, never argue with a judge. That goes without saying. Fourth, if asked a difficult or unanticipated question, take a moment to think about your answer. We are often tempted to jump in with a response 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

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else to say and have a cold bench, even if you have time to spare.

Conclusion

The best way to successfully navigate your first appellate oral argument is to be prepared. Preparation will ease your nerves and give you the confidence you need. But even if all else fails, remember that the briefs are the most important part of the appeal. Although oral argument is important, it rarely makes or breaks a case, so try to relax and make the most of it.

Kathryn (Kate) A. Harrell has over ten years of experience as a trial lawyer. Her trial and appellate practice focuses on the representation of insurance companies, municipalities, individuals, and businesses in tort and employment litigation in federal and state court. These claims range from defense of excessive force claims to dog bite claims. Kate also practices in the area of municipal law and serves as the Prosecutor for the Village of Waunakee and as a Special Prosecutor for the City of Beloit.

References1 7th Cir. R. 34(b)(3).

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Introduction

Over the past few years, copyright infringement lawsuits have made headlines. In March 2015, recording artists Robin Thicke and Pharrell Williams were ordered to pay $7.4 million to the estate of Marvin Gaye (later reduced to $5.3 million) after a jury determined that their hit song “Blurred Lines” was strikingly similar to Marvin Gaye’s 1977 hit song “Got to Give it Up.”1

Conversely, in a similar case in June 2016, a jury found in favor of legendary rock group Led Zeppelin amidst allegations that the instrumental introduction to their 1971 landmark hit “Stairway to Heaven” had been taken from an instrumental riff in a 1968 song “Taurus,” originally recorded by the band Spirit.2 While the respective juries reached different results, in both instances they were asked to undertake a subjective assessment comparing the overall “concept and feel” of the two works at issue to determine whether an infringement had occurred.

These similar cases that resulted in different outcomes highlight the dilemma in copyright law. The law seeks to protect the original expression of an idea, but not the idea itself.3 For example, the idea or concept of a secret agent who saves the world from impending disaster is not protected by copyright; but a particular expression of that idea—such as a James Bond movie—is protected by copyright.4 However, considering that copyright law extends to multiple kinds of copyrightable works that take different artistic forms, the line between an “idea” and the “expression of an idea” is often a blurred line (as Robin Thicke and Pharrell Williams now know firsthand).

Increase in Copyright Infringement Litigation

While the aforementioned high profile lawsuits had a Hollywood venue and involved famous and recognizable musical compositions, Wisconsin has been no stranger to these types of lawsuits, and has lately experienced a staggering increase in copyright infringement lawsuits.

Copyright infringement litigation is notoriously unpredictable, both with respect to proof of liability and the available damages. A plaintiff may choose between statutory damages (ranging from $200 for innocent infringements up to $150,000 for willful infringements) or actual damages, which include an infringer’s profits attributable to the infringement.5 Further, a prevailing plaintiff need not choose the measure of damages until after the jury returns its verdict.6 Moreover, a prevailing litigant—plaintiff or defendant—can recover their actual attorney fees, and these cases are often very costly to litigate.7

Copyright law in the United States is governed by Chapters 1 through 8 and 10 through 12 of Title 17 of the United States Code. Copyright protection extends to “original works of authorship” fixed in any tangible medium of expression.8 “Works of authorship” fall into eight broad categories, including literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motions pictures and other audiovisual works, sound recordings, and architectural works.9

Copyright protection clearly extends to many different mediums and artistic forms of expression. Recently, Wisconsin has experienced a substantial

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

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uptick in copyright litigation involving architectural works and pictorial or graphic works.

The quintessential question in a copyright case is whether the allegedly infringing work is substantially similar to the copyrighted work, which generally requires the trier of fact to determine whether the overall “concept and feel” of the works are the same. As an aside, whether a test as subjective as comparing the overall “concept and feel” of two works can be consistently applied as a workable legal standard by a jury is worthy of further analysis in and of itself; however, before a jury gets to that subjective analysis, a plaintiff must prove that the defendant had “access” to the copyrighted work at issue. To that end, a recent decision by Judge William Griesbach in the Eastern District of Wisconsin may have put teeth back into the “access” requirement, which had slowly been eroded by case law across the country. If affirmed on appeal, this decision could have a significant impact on the volume of copyright litigation and the likelihood of success of cases filed in the Seventh Circuit.

Elements of a Copyright Infringement Claim

To succeed on a claim, a plaintiff must prove (1) ownership of a valid copyright; and (2) unauthorized copying of the constituent elements of the work that are original (i.e., the “protected expression” in the plaintiff’s copyrighted work).10 The second prerequisite to a copyright claim (i.e., unauthorized copying of protected expression) implicates several steps, the first of which is that the plaintiff must either offer direct evidence that the defendant copied the plaintiff’s work, or evidence from which copying can be inferred (i.e., indirect evidence).11

Direct evidence is rarely available in copyright infringement cases. Thus, copying usually must be inferred by proving that the defendant had access to the copyrighted work.12 To prove access, the plaintiff must offer evidence that the defendant had an opportunity to view the copyrighted work.13 However, “this showing must establish more than a ‘mere possibility that such an opportunity could have arisen’; it must be ‘reasonably possible that the paths of the infringer and the infringed work crossed.’”14

A “bare possibility” of access is insufficient, because access will not be found based on mere speculation or conjecture.15 Instead, the plaintiff has the burden of producing evidence sufficient to support a reasonable inference that the defendant had an opportunity to view the plaintiff’s copyrighted work.16 The evidence must be sufficient to remove the question of access from the realm of speculation.17

Proof of Access

Proof of access typically takes two main forms: (1) the plaintiff shows a particular chain of events through which the defendant may have gained access; or (2) the plaintiff establishes that its protected work has been widely disseminated. Based on the wording of the statute and the case law, the access element would seem to be ripe for a potential dispositive motion where there is an absence of sufficient proof that the defendant actually had access to the particular work at issue; however, that expectation surprisingly has not come to fruition in the case law.

The issue of access presents something of a “Catch-22” for litigants. On the one hand, a jury cannot determine whether there was copying of a specific work until it has been proven by sufficient evidence that a defendant actually had an opportunity to copy that work. On the other hand, plaintiffs typically only have inferential evidence of access at their disposal since direct evidence of copying is almost never available. It has been said that virtually all cases in which access is at issue turn on “inferential proofs.”18 In looking at the case law on point, the courts have interpreted the “reasonable possibility of access” requirement rather broadly in cases where access is at issue, and have allowed largely circumstantial evidence and inferential proof to sufficiently establish a triable issue of fact on the issue of access.

Under settled law, a trier of fact may impute access where there is evidence that a third party with whom both the plaintiff and defendant were dealing had possession of the plaintiff’s work, and the plaintiff’s and defendant’s dealings took place concurrently.19 In one case, the Second Circuit inferred a reasonable possibility of access where a songwriter sent the

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copyrighted work to a third party intermediary who was a supervisor of the alleged infringer (a musician) and the supervisor contributed creative ideas to the musician’s work.20 In many cases, all that is needed is a relationship that links the intermediary and the alleged copier.21 Accordingly, the plaintiff does not have to prove that the defendant actually observed the plaintiff’s work. In a Western District of Wisconsin case from 2015, the court held that the plaintiff had created a triable issue of fact on access where the plaintiff had sent dozens of home plan catalog books to the defendant containing the plaintiff’s copyrighted works over a period of twelve years, even though the dissemination of the plan books was unsolicited and largely unnoticed by the defendant.22

As mentioned, other lines of cases infer access where it is determined that the copyright holder’s work was widely disseminated. In a Ninth Circuit decision, a fabric printing company was able to prove access based on “widespread dissemination” when one of its copyrighted floral patterns appeared on a t-shirt sold by Aeropostale, Inc., where the fabric company had sold more than 50,000 yards of fabric bearing that specific floral pattern over the previous four years.23 In the context of music and popular songs, a court can find an inference of access based on a sua sponte determination of “subconscious copying”—i.e., where the work at issue is based on a well-known song previously released.24

Some commentators have argued that the access element has lost its significance in light of technological advances that have occurred since the copyright laws were enacted because any potential infringer now has a reasonable opportunity to view any copyrighted work accessible on the Internet with only the click of a mouse.25 Though the cases typically depend on the circumstances of the infringement and the credibility of the parties, courts have routinely held that, where there is proof that the copyright holder’s work was “widely distributed,” access can be inferred.

To complicate things even further, courts have also held that when two works are so strikingly similar as to preclude any reasonable possibility that the

defendant’s work was independently created, access may be presumed. To be “striking,” the similarities must be such that they can only be explained through copying, as opposed to independent creation.26 However, the level of “striking similarity” between works required to support an inference of access without additional evidence varies significantly among the federal circuit courts.

Is there Anything Left of the Access Requirement?

As the case law demonstrates, access is often not even at issue in cases where the access is obvious. In other cases, courts can assume or infer access based on the circumstances, or they can skip the access requirement altogether if they determine that the works are “strikingly similar.” There is certainly a rationale for the shrinking significance of the access requirement. First, taking a broad view of the inferential proof necessary to show access can be justified by the fact that copyright infringement is a strict liability tort. Second, the practical reality of a web-based media world is that almost any protected work can become widely disseminated.

Those rationales may make sense when the protected work at issue is a well-known motion picture, a musical composition receiving substantial airplay, or a widely-published book or manuscript. But what about instances where the purportedly “widely disseminated” work is a photo tucked away on an obscure website, or a house plan displayed in a plan book that happens to be on the Internet? The access requirement applies with equal force to all eight works of authorship laid out in 17 U.S.C. § 102(a), but the reality is that each of those separate works of authorship experiences varying degrees of dissemination on the World Wide Web. When dealing with copyrighted works such as photographs or architectural works, for example, it is certainly debatable whether such protected works can be considered “widely disseminated,” even if they are technically available on the Internet. While it is understood that plaintiffs generally need to prove access by inference, one begins to question whether there is an end point to how far the level of inferential proof to show the possibility of access will extend.

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In many past cases where the evidence of access appeared weak, defendants would try to highlight the large gap between a “slight possibility” of access and a “reasonable probability” of access at the summary judgment stage, but those arguments largely fell on deaf ears.

Design Basics, LLC v. Lexington Homes, Inc.27

Importantly, the Eastern District of Wisconsin’s recent decision in Lexington Homes may indicate that the courts are willing to start putting some teeth back into the access requirement where the category of the work in question is less susceptible to wide dissemination. The case involved a factual scenario similar to dozens of copyright cases that have been previously filed in Wisconsin. In fact, almost all of those cases have involved the same plaintiff, Design Basics, LLC. Design Basics is one of the nation’s largest producers of residential home plans and maintains copyrights in over 2,000 home plan designs. Its home plan designs appear in its home plan catalogs, which are published across the country as well as on its website.

In Lexington Homes, Design Basics alleged that the defendants, builders of residential homes and multi-family apartment buildings, had infringed on four of its copyrighted residential home plans.28 The defendants claimed that they had independently created the plans in question through a collaborative process involving members of their design team, who signed affidavits attesting that they had not seen the plaintiff’s copyrighted plans at issue prior to the filing of the lawsuit.29 The parties filed competing motions for summary judgment, which included a defense motion on access, arguing that the plaintiff had not proven that the defendants had any opportunity to access the plaintiff’s copyrighted works before creating the allegedly infringing works.30

Like most copyright cases, there was no evidence of direct access. Accordingly, the plaintiff submitted the following inferential proof that defendants had access to the four plans at issue:

• The plaintiff “regularly and systematically” mailed plan catalogs and other publications

to builder’s associations, of which the de-fendants were members, from 2000-201331;

• The defendants possessed several of the plaintiff’s previously disseminated home plan catalogs, containing dozens of the plaintiff’s copyrighted plans, though no plan book contained any of the specific plans at issue32;

• The defendants’ agent was a former em-ployee of a lumberyard that was a long-standing customer of the plaintiff33; and

• The defendants had “access in general,” because the plaintiff’s plans were available on its website and were “ubiquitous in the marketplace.”34

Though the issue was not specifically raised by the plaintiff in its motion, Judge Griesbach started his decision by dismissing any potential assertion that the plans at issue were so “strikingly similar” as to support an inference of access without additional evidence. In doing so, Judge Griesbach clarified that the “striking similarity” inference is limited to “exceptional” cases.35 Exceptional cases are typically those where the alleged infringer’s work contains a “copyright trap” that would not appear in the work but for the alleged infringer having copied a protected work (e.g., mapmakers will sometimes include fictitious geographical features in their maps that serve no practical purpose other than to support an inference of copying if that feature is duplicated in a separate map).36 The plaintiff was unable to identify anything inherently unique about its house plans that served as a “copyright trap” to an unwary potential infringer.

After determining that the “striking similarity” inference did not apply, Judge Griesbach addressed the inadequacy of the plaintiff’s evidence of access. As he stated, none of the plaintiff’s evidence of access pertained to the specific works defendants were accused of copying.37 Moreover, the fact that the defendants had a general awareness that the plaintiff had copyrights or that the defendants had access to the plaintiff’s other copyrighted works was insufficient to raise an inference that the defendants

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had access to the specific copyrighted works at issue.38 According to the court, allowing a jury to infer that the defendants had access to the specific works at issue under this evidence would invite the jury to draw an inference of access based on speculation and conjecture alone, which is precisely what the statute prohibits.39

Ultimately, the court granted the defendants’ summary judgment motion on access, which rendered all other motions moot, and dismissed the case in its entirety since the plaintiff could not establish a triable issue of fact on the issue of access.40

Potential Impact of Lexington Homes

In many ways, the Eastern District took a more common sense approach in analyzing the level of inferential proof of access that a plaintiff must present to withstand summary judgment. First, Judge Griesbach focused on the evidence of access to the specific work at issue, rather than the plaintiff’s assertion that defendants had “access in general” to all of its works. Second, he dismissed the idea that a defendant having access to, or even possession of, some of the plaintiff’s plans that are not at issue can support an inference of access with regard to plans at issue that are not in the defendants’ possession. Third, he dismissed the idea that “striking similarity” can support an inference of access in the context of residential house plans except in the rarest and most unusual of cases.

Copyright infringement cases involving house plans certainly differ from copyright cases involving other protected works of authorship, and each case depends on the circumstances of the alleged infringement and the credibility of the parties; however, the Lexington Homes decision appears to significantly temper an inference of access where there is a relationship linking an intermediary and the alleged infringer. The implication is that there may still be a meaningful distinction between a “slight possibility” of access and a “reasonable opportunity” of access, and that plaintiffs must sufficiently bridge that gap before they can pass the summary judgment stage.

Conclusions

The vague and subjective nature of what constitutes an “infringement” allows for the law to be applied to various types of works and mediums while balancing the competing interests that the copyright laws seek to protect—i.e., providing legal rights and protections to those who have created works for which they seek creative and commercial control against the rights of users of copyrighted works, who seek to use existing works to build and create new works.

The profound difficulty in delineating precise legal standards in guiding copyright law leaves us with laws that are vague, flexible, and ambiguous. The practical reality of that vagueness results in the laws being applied on what appears to be an ad hoc basis. This problem of vagueness is compounded by the fact that different courts have interpreted and applied the elements in inconsistent and sometimes conflicting ways.

However, before the trier of fact gets to the hopelessly amorphous question of whether works are substantially similar, it has to grapple with the threshold issue of access. The Lexington Homes decision arguably provides more clarity with regard to what evidence or proof is necessary to get past the summary judgment stage. Requiring a heightened level of proof to establish access arguably adds more predictability in an area of law that is highly unpredictable, and may also have a chilling effect on the volume and scope of copyright claims which are filed.

Design Basics has appealed the decision, and the Seventh Circuit will hear oral argument on the matter on April 5, 2017 (likely around to the time of this Article’s publication). If the Seventh Circuit upholds the ruling, it could have a profound impact on the future of copyright litigation in a number of ways. The first (and obvious) potential consequence is that more copyright infringement cases will be ripe for adjudication at the dispositive motion stage. Second, there could be a decrease in the number of copyright 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

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the context of residential house plans, plaintiffs will likely need to be more diligent about the number of claimed infringements they allege in their pleadings, while being mindful of the burden necessary to prove access. In this manner, a heightened burden to show access may serve as an artificial “buffer” and encourage plaintiffs to file causes of action alleging only infringements where there is a strong inference of access, and deter plaintiffs from “piling on” as many infringements as possible. Given the broad and potentially lucrative remedies afforded by copyright law, it makes logical sense to strike a balance, ensuring that plaintiffs confirm they have adequate evidence of access to plans, where access would otherwise be in doubt, before their claims are permitted to pass the summary judgment stage.

John Healy earned his J.D. from the University of Wisconsin in May 2014. Upon graduating, John began working as an associate at Corneille Law Group in Madison, WI. John represents and advises clients in a variety of practice areas, including personal injury defense, medical malpractice defense, insurance coverage matters, and cases involving alleged advertising injuries. John is a member of the Wisconsin Defense Counsel, Dane County Bar Association, and the Young Lawyers Division of the State Bar of Wisconsin. He is admitted to practice in Wisconsin and before both the Eastern and Western U.S. District Courts of Wisconsin.

References1 Grow, Kory, Robin Thicke, Pharrell Lose Multi-Million

Dollar ‘Blurred Lines’ Lawsuit, Rolling Stone (March 10, 2015); see also Grow, Kory, Led Zeppelin Win in ‘Stairway to Heaven’ Trial, Rolling Stone (June 23, 2016) (clarifying that the award in the “Blurred Lines” case had been reduced to $5.3 million).

2 Grow, Kory, Led Zeppelin Win in ‘Stairway to Heaven’ Trial, Rolling Stone (June 23, 2016).

3 See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991).

4 See Copying—Definition of “Protected Expression,” Seventh Circuit Instruction 12.5.2, Federal Civil Jury Instructions of the Seventh Circuit (Committee on Pattern Civil Jury Instructions of the Seventh Circuit 2015).

5 See 17 U.S.C. § 504(a)-(c). 6 17 U.S.C. § 504(c). 7 17 U.S.C. § 505. 8 17 U.S.C. § 102(a).

9 17 U.S.C. § 102(a)(1)-(8). 10 17 U.S.C. § 501; see Feist, 499 U.S. at 361; Harper & Row

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985); Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005).

11 See Prestwick Grp., Inc. v. Landmark Studio Ltd., No. 14-CV-731-JPS, 2015 U.S. Dist. LEXIS 65392, at *32 (E.D. Wis. May 19, 2015) (unpublished decision); see also Stanislawski v. Jordan, 337 F. Supp. 2d 1103 (E.D. Wis. 2004).

12 Stanislawski, 337 F. Supp. 2d at 1103. 13 Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d

502, 508 n.5 (7th Cir. 1994). 14 Bldg. Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 (4th

Cir. 2013). 15 Id. at 578-79.16 Wildlife Express Corp., 18 F.3d 502. 17 Bldg. Graphics, Inc., 708 F.3d 573. 18 See Melville B. Nimmer & David Nimmer, Nimmer on

Copyright, § 13.02A, at 13-19 (Matthew Bender 2015).19 T-Peg, Inc. v. Vt. Timber Works, Inc., 459 F.3d 97, 111 (1st

Cir. 2006).20 See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d

Cir. 2003).21 See Cottrill v. Spears, 87 Fed. Appx. 803, 805-06 (3d Cir.

2004).22 Design Basics LLC v. J & V Roberts Inv., Inc., 130 F. Supp.

3d 1266, 1275 (E.D. Wis. 2015).23 L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841,

848 (9th Cir. 2012).24 See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d

988, 997-99 (2d Cir. 1983) (The Second Circuit affirmed a jury’s verdict that former Beatle George Harrison, in writing the song “My Sweet Lord,” subconsciously copied The Chiffons’ “He’s So Fine,” a number one hit on the Billboard charts, which was released six years earlier.).

25 See NOTE: Copyright Infringement and Access: Has the Access Requirement Lost Its Probative Value?, 52 Rutgers L. Rev. 311 (Fall 1999).

26 See Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997); Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 926 (7th Cir. 2003); Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984).

27 No. 14-CV-1102, 2016 U.S. Dist. LEXIS 140207 (E.D. Wis. Sep. 29, 2016) (unpublished decision).

28 Id. at *3.29 Id. 30 Id. at **1-2. 31 Id. at *5. 32 Id. at *7.33 Id. at *5. 34 Id. at *6. 35 Id. at *9. 36 Id. at *9 (citing Bucklew, 329 F.3d at 926). 37 Id. at *14. 38 Id.39 See id. at **14-15. 40 Id. at *15.

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NOTES

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NOTES

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