Spoliation of Evidence

Spoliation of Evidence

Spoliation is the “intentional destruction, mutilation, alteration, or concealment of evidence.”[1] The legal maxim In odium spoliatoris omnia praesumuntur means “all things are presumed to the prejudice of the despoiler.” If a potential litigant or party destroys, alters, or loses evidence in a manner that constitutes spoliation, a court may impose sanctions for the spoliation of that evidence.

To decide whether spoliation has occurred, a court will consider three factors: 1) the relationship of the evidence to the case; 2) the extent to which it is lost/damaged and 3) whether the party accused of spoliation knew or should have known that the evidence could be used in potential litigation. The case of Cody v. Target Corp.[2] is instructive as to what sanction should be meted out when a party spoliates evidence. In this case, a customer purchased what was thought to be an inflatable mattress from Target. Upon opening the box, the customer did not find an inflatable mattress, but instead some type of noxious gas container/device. Cody immediately returned the box to Target, but her family members began getting ill. Soon thereafter, Target disposed of the items. Following their lawsuit, the customers moved for spoliation sanctions. The circuit court imposed sanctions on Target finding liability and denying Target a causation defense.

It is important that parties involved in the spoliation of evidence are held accountable. As one court aptly put it: “Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures — and our civil justice system suffers.”[3]

Understanding your duties regarding the preservation of evidence is critical. As soon as a legal dispute arises, it is paramount that you take steps to preserve evidence and that you take steps to hold others accountable for preserving evidence. For this reason, it is important that you seek the advice of one of our experienced attorneys who has previously dealt with issues of spoliation.

[1] Black’s Law Dictionary 1409 (7th ed. 1999).
[2] 2013 WI App 94, 349 Wis. 2d 525, 825 N.W.2d 290 – an unpublished decision (citable for persuasive value).
[3] Keithley v. The Home Store.com, Inc., 2008 U.S. Dist. LEXIS 61741 (N.D. Cal. Aug. 12, 2008), quoting United Medical Supply Co. v. United States, 77 Fed. Cl. 257, 258-59 (Fed. Cl. 2007).

The Book of Surprises

The Book of Surprises

There is an elephantine book with 995 chapters that most Wisconsinites know exists, but no one has ever read cover-to-cover. The topics in this book are eclectic and cover a staggering range of subjects from “wild animals and plants” to “communicable diseases” to “prison labor” to “gambling.” It is not the Bible and it is not a thesaurus, nonetheless it is the authority on all aspects of our daily lives.

Open the book to a random chapter and behold the magnitude of its content. For example, Chapter 882 tells us that “An adult may be adopted by any other adult, who is a resident of this state.” Considering opening a bawdyhouse? Think again! Chapter 823 calls such establishments a nuisance and allows for taking of “furniture” and “musical instruments” used in such a business. Looking for some entertainment on October 10th, Chapter 995 informs us that “appropriate exercises and celebrations may be held” in honor of William D. Hoard’s birthday. For those not in the know, William Hoard was the 16th Governor of Wisconsin and is the namesake of Hoard’s Dairyman, a magazine.

Curiosities abound in this book. It blesses marriages between first cousins “where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.”

Want to know the difference between a “pet bird” and a “wild bird?” It is in the book. Chapter 169 defines a “pet bird” to mean a “bird that is either a psittacine or a soft bill and that is not native” as opposed to a “wild bird” which is “a wild animal that is a bird.” There is also practical guidance such as in Chapter 29, the prohibition against capturing or killing “any wild animal with the aid of any explosive or poison gas.”

The book is also practical where it gives guidance to employers including that an “employer shall, at the time of hiring, notify each employee about any hairstyle, facial hair or clothing requirement.” To this point, it even threatens a fine of not less than $10 nor more than $30 to an employer “in any manufacturing, mechanical or mercantile establishment” who fails to “provide suitable seats for its employees.”  And, if there were any doubt about where a municipal judge should hold court, it is removed by Chapter 755, which states: “No judge may keep his or her office or hold court in any tavern, or in any room in which intoxicating liquors are sold, or in any room connecting with a tavern or room in which intoxicating liquors are sold.”

These archaic rules laid down in this massive tome may come as surprise. However, this book is free, routinely updated and available for study. Every citizen of Wisconsin has imputed knowledge of all 995 chapters of this book. Ignorance of the rules of the book won’t save a person that runs afoul of any command of the book. Ignorantia juris non excusat—ignorance of the law does not excuse. This book, of course, is our beloved Wisconsin Statutes. https://docs.legis.wisconsin.gov/statutes/statutes.

 

My Garage Is Bigger Than Yours

My Garage Is Bigger Than Yours

As of late, Wisconsin courts have been grappling with one of the most important questions facing the nation: What is a garage? Is it defined by size or exterior proportions? Do the construction materials define what it means to be a garage? Attached or detached? Is it defined by the contents it holds within? Or should it be defined by the conduct of those who frequent the garage?

For those among us who have long grappled with these fundamental issues, rest easy as the Wisconsin Court of Appeals in Buehrens v. Schave provides clarity. Like all good lawsuits, it started between feuding neighbors. The Schaves built a “building” with “an electric garage door” that is “thirty-six feet by eighty feet, reaching sixteen feet high.” To put this in context, the Schaves’ building was the dimensional equivalent of a great blue whale. Angry neighbors decried that it was a “pole barn” that violated restrictive covenants “as its size rendered it something other than a garage.” Without casting judgment, it is fair to say that there is no community barn-raising taking place in this subdivision.

In filing their lawsuit, the neighbors asked the court to order the building removed. The Schaves would have none of it and declared that the building fell squarely within the definition of a “garage.” Which, of course, was allowed by the subdivision’s covenants. To determine the fate of the building, the court turned to Webster’s Dictionary. There, the court found that “a reputable dictionary defines ‘garage’ as ‘a building or compartment of a building used for housing an automotive vehicle’.” With this definition, the court waved its wand and crowned the “building” a “garage” because the Schaves could show it was used for storing automobiles. As a result, the Schaves get to keep their garage.

However, the case reveals the problem with clear-line definitions. For instance, if the Schaves decided not to store automobiles would it revert to a pole barn and lose its status as a garage? Also, as most of us know, many garages have never been kissed by the warm rubber of a car’s tire, but instead have been disgraced by boxes of endless clutter. Does this make such a structure any less of a garage? Wouldn’t it be as good, if not better, to define a garage based on the activities that take place within such as band practice and startup companies? Otherwise, what fate befalls punk rock bands like Nirvana and industrious businesses following in the footsteps of Apple? To me, defining a garage by one item that may be found inside is like defining a human by the presence of an appendix or tonsils.

 

The COVID Trials

The COVID Trials

The constitutional right to a jury trial does not take a back seat to coronavirus (COVID-19.) Yet, COVID-19 has impacted the ability of courts to supply juries for trial. The Seventh Amendment codifies the right to a jury trial not only for criminal trials, but in civil cases as well. This article explores how courts are grappling with the challenge of seating a jury and trying cases.  Litigants know too well the meaning of the legal maxim, “justice delayed is justice denied.” Nevertheless, a jury that is distracted and afraid for their physical well-being because of COVID-19 cannot deliver justice. Herein lies the conflict facing our courts – the right to a jury of one’s peers and juror’s right to safety.

One of the first federal judges to resume jury trials during the COVID-19 pandemic likened the experience to “building an airplane while you’re flying it.” A playbook for resuming jury trials is emerging from these pioneering judges who have conducted jury trials in the wake of COVID-19.

First, the layout and the physical arrangement of jurors, in particular the confinement of the jury box, must be addressed. One solution has been to spread jurors out in the gallery — to allow for social distancing. Going further, other courtrooms have added physical barriers and guards. In addition to plexiglass barriers, some courts have installed audio systems with headsets that enable clients and lawyers to whisper to each other, much as they would in a traditional courtroom, but from a safe distance. One such recommendation is to proceed with smaller juries.  For instance, Wisconsin law allows for a jury of six persons in civil cases.

The next set of the recommendations focus on safety practices, which include requiring facial coverings be worn by all individuals in the courtroom (judges and staff included), having prospective jurors’ temperatures taken as they enter the court building, providing hand sanitizer, disinfectant wipes, disinfectant spray and paper towels. Another practical policy is to avoid passing exhibits between jurors.

Courts also have wrestled with the question of who must wear masks in the courtroom. Most courts seem to be on the side of masks for all persons in the courtroom. This is problematic because of the difficulty of assessing credibility of someone in a mask, a core function of the jury. Where possible, courts have permitted witnesses to be examined without masks, via video from within a room in the courthouse.

The challenges of in-person jury trials have led some courts to experiment with more novel ideas. Could a jury trial be conducted by Zoom? It appears so. Remote civil jury trial pilot programs in Florida and Texas are already in place. A jury trial that occurred in Florida commenced entirely via Zoom; some potential jurors had to be dismissed for technical issues during jury selection. As expected, audio and video feeds occasionally froze. The judge was often asking each individual juror: “Can you see me? Can you hear me?” Despite technical issues, the Florida Zoom trial was successful.

There is no single antidote for resuming jury trials in the wake of this pandemic. In the words of Hibbing, Minnesota’s most famous resident, “the times they are a-changin’.” More than ever, courts and communities must work together to safely preserve the right to a jury trial and concomitant duty to serve as a juror.

 

Beware of Dog Owner Liability and Coverage

Beware of Dog Owner Liability and Coverage

“As wonderful as dogs can be, they are famous for missing the point.” – Jean Ferris. Sometimes when dogs miss the point; things can go horribly wrong. Statistically, there are four to five million Americans bitten by dogs every year.  There is precedent for animals standing trial for criminal charges, with the earliest record of an animal trial is the execution of a pig in 1266 at Fontenay-aux-Roses.  However, in recent history, putting the animal on trial for its vicious acts has gone out of vogue. Without the possibility of a kangaroo court – pun intended – it is the owners who face the consequences when a good dog “breaks bad.”  Specifically, Wisconsin has two categories of laws regarding the liability for harm caused by dogs.

The first applies when the dog has no history of causing harm.  In this case, the owner will only be liable for the actual amount of damage caused by the dog.  Included in the amount an owner may owe to the victim are hospital bills, lost wages and money to compensate the victim for pain and suffering.  It is worth noting that under the law, “owner” includes anyone who keeps or harbors a dog. This means that if you are caring for a dog long-term at your residence, you may be liable for damage caused by the dog if you are found to be “harboring or keeping” the dog.

The second category of liability creates enhanced penalties for an owner of a dog who has notice of the dog’s past bad behavior.  To quote the statute, “the owner of a dog is liable for twice the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.”  Luckily, normal puppy bites and teething behavior do not rise to this level. Gasper v. Parbs, 2001 WI App 259, 249 Wis. 2d 106, 637 N.W.2d 399.

In light of the threat that a dog owner may be on the hook for the damage caused by a dog that attacks, what can be done? Aside from obedience training, the most important thing to do is to check your homeowner’s insurance policy.  Many policies have language excluding certain dog breeds from liability coverage. A list of commonly excluded breeds may include any of following: Pit Bull, American Pit Bull, Rottweiler, Chow Chow, Doberman Pinscher, American Staffordshire Terrier, American Bulldog, Colorado Bulldog, Northwood’s Bulldog, English Bull Terrier, Wolf Hybrids, or a mixed breed with any of the aforementioned breeds.  Although this list seems somewhat arbitrary, it is worth checking your policy to determine if you will be covered in the event that your dog bites someone.

 

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