Judicare Mediation Services

Judicare Mediation Services

Judicare Mediation

Our firm receives many calls regarding small claims cases. One issue that immediately becomes a problem is that small claims are limited to damages under $10,000. Legal fees a client pays to us will cut into those damages very quickly, without any guarantee of a court win. This can make it difficult to fiscally justify being hired onto a small claims case. 

Recently, Judicare opened a free mediation program for small claims cases in Portage County. If you go to a small claims return date, you will see Judicare mediators milling about waiting to help people try and solve their disputes without further litigation. 

Their website says “Even if you have not yet filed a lawsuit, you can still request Judicare to mediate a dispute between you and another party.” This makes their services incredibly valuable because you may be able to resolve a dispute before you begin to incur any court fees. 

There are certainly cases that have long-term effects or are more legally complex and should involve a lawyer. Mediation requires the other party to participate, and so there are plenty of cases that cannot be solved through mediation simply because of the parties involved. But, if you are considering filing a lawsuit in Small Claims Court in Portage County, it may be worth your time to contact Judicare to see if they can help mediate your dispute before you or the other party start paying court or legal fees. 

Please go to the Judicare’s website for more information. If you are in another county, check Judicare’s website to see if they offer this program in your county. https://www.judicare.org/mediation/

Are They Really Faster and Cleaner?

Are They Really Faster and Cleaner?

Faster and cleaner, Daniel Schmeeckle, Lawyers Where You Live, article

In October 2020, the Department of Energy (DOE) adopted a rule defining a new dishwasher class as “standard residential dishwashers with a cycle time for the normal cycle of one or less from washing through drying.”[1] Not long after passing the 2020 Dishwasher Rule, the DOE created an analogous rule creating new classes of “top-loading clothes washers and consumer clothes dryers” having a “normal cycle time of less than 30 minutes.”[2] Then, in January 2022, the DOE repealed the 2020 Dishwasher Rule and 2020 Laundry Rule (the “Repeal”). Consumer Reports took note:

“Not so long ago you could count on most washers to get your clothes very clean. Not anymore. Our latest tests found huge performance differences among machines. Some left our stain-soaked swatches nearly as dirty as they were before washing. For best results, you’ll have to spend $900 or more.” (Italics added).


“What happened? As of January, the U.S. Department of Energy has required washers to use 21 percent less energy, a goal we wholeheartedly support. But our tests have found that traditional top-loaders, those with the familiar center-post agitators, are having a tough time wringing out those savings without sacrificing cleaning ability, the main reason you buy a washer.”


A group of states, led by Louisiana (state motto: “Union, Justice and Clean Laundry”) sued to overturn the repeal and to return to the halcyon days when clean laundry was king. Don Henley, who made a living on the evening news, summed up the sentiment of the suing states:

                      You don’t really need to find out what’s goin’ on
                      You don’t really wanna know just how far it’s gone
                      Just leave well enough alone
                      Eat your dirty laundry

The DOE and the states aired their dirty laundry in front of the United States Court of Appeals for the Fifth Circuit. In favor of speed cleaning, the Fifth Circuit noted:

Appliances including dishwashers, clothes washers, and clothes dryers with faster normal-cycle completion times that also maintain cleaning and drying effectiveness, such as dishwashers that complete a normal cycle in one hour or less, are desirable in the bunkhouse setting. Such features are beneficial and productivity enhancing, since they would permit faster washing and completion of additional cycles during the workday.[3]

The States argued that the DOE’s repeal actually had the opposite effect of what was intended – higher efficiency: “They make Americans use more energy and more water for the simple reason that purportedly ‘energy efficient’ appliances do not work” requiring the use of more energy and water to “preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”[4] The evidence presented to the Fifth Circuit showed that “dishwasher cycle time has increased from around one hour at the advent of DOE’s conservation program to around two and a half hours in 2020.”[5]

In a 25-page opinion, the Fifth Circuit ultimately found that DOE’s Repeal was “arbitrary” and “capricious” and sent the matter back to the DOE for further proceedings. To come to this opinion they looked at the connection between the facts found and the decision made. They argue that the DOE does not have the authority to regulate water usage and that the DOE did not consider the negative consequences of re-washing, pre-washing, and hand-washing clothing. In trying to conserve water and make machines more efficient, these new rules have had the opposite effect.

The next time you are considering purchasing a dishwasher or clothing washer, be sure to look at the overall functionality of the machine. Do not be swayed by the “more efficient” fast cycle terms.

[1] See Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (Oct. 30, 2020) (the “2020 Dishwasher Rule”).

[2] See Establishment of a New Product Class for Residential Clothes Washers and Consumer Clothes Dryers, 85 Fed. Reg. 81359 (Dec. 16, 2020) (the “2020 Laundry Rule.”) .

[3] Louisiana v. United States DOE, No. 22-60146, 2024 U.S. App. LEXIS 507, p. 7-8 (5th Cir. Jan. 8, 2024)

[4] Id. p. 14.

[5] Id. p. 15.

National Health Care Decisions Day

National Health Care Decisions Day

National Health Care Decisions Day, Estate Planning

National Healthcare Decisions Day (NHDD) is celebrated each year on April 16th. Founded in 2008, the mission of NHDD is to encourage and empower people to begin or continue conversations about their wishes for care through the end of life.

Wisconsin is one of a minority of states that does not have a “family consent” law. This means that unlike other states, if you become incapacitated as an adult, no one in your family (including your spouse, parents, adult children or anyone else) has the legal right to make healthcare decisions for you. In this scenario, a legal guardianship typically must be established through the court.  

However, by signing a Healthcare Power of Attorney, you can name someone to handle your healthcare decisions in the event that you become unable to make these decisions. Everyone over the age of 18, who is competent to make one, should sign a Healthcare Power of Attorney and name both a primary and alternate agent to handle their healthcare decisions. You should make sure your primary and alternate agents are people you feel confident will follow through with your directives and be sure to communicate to them your values and desires for your healthcare.

In addition to a Healthcare Power of Attorney, you may also sign a Declaration to Physicians or a “living will.”  This document sets forth guidelines for withholding or withdrawing medical treatment from you in certain end-of-life scenarios. A living will is a declaration directly to your physician, while a healthcare power of attorney authorizes your agent to make healthcare decisions on your behalf.

Finally, it is important to be aware of the Health Insurance Portability and Accountability Act (HIPAA) and its impact on accessing your protected health information. The major focus of this law is to provide patients more control over their protected health information. The law prohibits disclosure of protected health information without your consent or authorization. You should consider signing a HIPAA authorization form allowing the release of your protected health information to the individuals you have named as agents in your Healthcare Power of Attorney. This will ensure they can access the necessary information to make informed healthcare decisions on your behalf.

Please feel welcome to contact our experienced attorneys at Anderson O’Brien, LLP to learn more about advanced planning for your healthcare decision-making. Let’s make everyday a Health Care Decisions Day!

What is Elder Law?

What is Elder Law?

We are often asked What is elder law? While the definition of “elderly” is the subject of some debate, the most common defining point is someone who is 65 years or older, as that is when federal Medicare benefits begin. Elder Law, much like “Family Law” or “Employment Law” is an umbrella term for a broad-based area of law.  For Elder Law attorneys, this consists of multiple areas of practice that relate to older adults, individuals with disabilities, and those who care for seniors and disabled individuals, including:

  • Health Care and Legal Capacity
  • Public Benefits (e.g. Medicaid and SSI)
  • Special Needs Trusts
  • Long Term Care
  • Asset Protection and Nursing Home Planning
  • Wills, Trusts, and Powers of Attorney
  • Probate and Trust Settlements
  • Guardianship and Conservatorship

The term Elder Law can be somewhat confusing because most Elder Law Attorneys also focus on solving legal problems for individuals with special needs, regardless of age.

The National Elder Law Foundation (NELF) defines Elder Law as follows:

“Elder Law” is the legal practice of counseling and representing older persons and persons with special needs, and their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

NELF is the American Bar Association-approved agency that certifies attorneys as a Certified Elder Law Attorney (CELA). There are less than 15 CELAs in the state of Wisconsin. To become a CELA one must have enhanced knowledge, skills, experience, and proficiency in the field of elder law. The attorney must complete an exam and be certified by the National Elder Law Foundation Board. Attorneys must complete 75 hours of continuing education in the elder law field every five years.

If you or a family member require an elder law or special needs law attorney please contact our office.


Lease Rights Beyond the Property Line

Lease Rights Beyond the Property Line

Commercial Lease

A lease is an agreement between one party which owns real estate, (landlord or lessor), and another party who seeks to gain use rights to some or all of that real estate for a set period of time (tenant or lessee). The landlord remains the owner of the property, but gives up their right to use and control the space during the time it is being rented in exchange for the rental payment. A good lease should clearly describe the area being rented. This is especially important when the landlord continues to own area near or around the rented area that is not part of the agreement. The tenant’s right to use and control the rented area should be obvious, but in more complex leases the tenants may require additional limited rights and assurances relating to land outside of the rented area. These rights broadly take two forms: (1) agreement that the tenant will be able to do certain things on the outside land, and (2) agreement that the landlord will refrain from doing certain things on the outside land. Before signing such leases, tenants should ensure any special rights they need to areas outside of the confines of the rented space are clearly defined and landlords should clearly understand what rights they are giving up to areas outside the rented premises.

For residential leases (homes or apartments), when the tenant is renting less than a whole house or only a portion of the parcel the residence is located on, the lease should clarify any open questions about uses of parking spaces, common facilities and drive-ways/access rights. For example, if a tenant is renting the upper unit of a two story duplex, can they store items in the shared basement? How many cars can they and their guests park behind the house before it starts interfering with their downstairs neighbors’ rights? If the rented area is a unit in a condominium association, the parties should make sure they understand whether the rights to the common area amenities of the Association are assigned to the tenant as part of the lease or retained by the Landlord as the owner of the Unit.

In the commercial context (leases for business locations), leases in multi-site developments sometime contain “exclusive use” clauses, restricting the landlord from renting to any other provider of the same of similar service within some set amount of area. It is most common for larger “anchor” stores in such developments to secure the best protective provisions for themselves because they have the most bargaining power, but any party is free to negotiate for them. For example, when negotiating a lease for one of six spaces in a strip mall, a pizza restaurant might (wisely) add a clause to the lease that the landlord guarantees no other tenant in the strip will sell pizza. This ensures the location the restaurant carefully chose will not be spoiled by new competition during the term of the lease.

Landlords who grant these exclusive use clauses need to be very careful in reviewing both their current and future leases to ensure compliance. In the prior example, it will be simple enough for the landlord to reject future pizza parlors from the development, but what happens when another tenant, an arcade, who was leasing from the landlord prior to the pizza restaurant, starts selling pizza to their customers? If the arcade’s lease does not prohibit such activity, the landlord has no grounds to stop the arcade from using the space as they see fit. The pizza restaurant would, rightfully, consider the landlord to be in breach of their contract as they were promised the exclusive use for that line of activity. Here, the landlord inadvertently made promises in the lease they were unable to fulfill and put themselves into a Catch-22 scenario. The same example could also get complicated if, for example, a new restaurant comes in and signs a lease that prohibits “pizza” from their menu but then sells Wisconsin-style cheese fries or calzones. Hopefully both leases defined the restricted use more specifically than just the word “pizza” to avoid any dispute about whether the new menu items qualify.

Beyond blocking specific types of competition, use restrictions can be more general in order to develop a certain type of aesthetic to the area surrounding a tenant. For example, a fine clothing retailer may wish to see a protection against their neighbor being a government office such as a unemployment or welfare office. A religious entity likewise may object to bars or adult content being sold next to their rented place of worship.

Increasingly common in Wisconsin, and across the country, are “solar leases,” in which development companies lease large swaths of cleared land, typically farm fields, to install solar panels. These leases rarely cover the entire property of the landlord and therefore contain extensive and detailed terms about what the landlord can and cannot do on the remaining land which is not being rented. In addition to common use provisions, solar leases more uniquely include prohibitions against building or planting anything which will cast a shadow over the panels. Landowners need to be very careful when entering into this agreement to ensure they can either continue to make use of the non-rented area, or, that they are at least adequately compensated for the loss of options over it.

The specifics of the agreement need to be set in writing with careful and detailed drafting. Rights and restrictions should be clearly defined to avoid unnecessary grey areas that can cause litigation. Tenants should also make sure that their hard bargained for use rights cannot be easily disposed of with manipulative corporate structuring, especially when the restricted area is not part of the same building or parcel as their rented space. If, for example, a landlord owns two commercial buildings next to each other but as separate parcels, transferring one of the properties to a separate limited liability company may allow the landlord to dodge any promises made to not permit certain activities on “all properties owned by landlord adjacent to the rented space.” Finally, the understanding of the parties needs to be executed in a legally binding way. When a signed written agreement exists, separate verbal or informal written agreements can be difficult to enforce. The terms should be incorporated into the lease itself or added as a formal amendment.

The examples and considerations provided here are just a few of the more common terms and issues related to this topic. Almost always such rights/restrictions are highly unique and customized to the situation and the needs of the Tenant. Leases need to be reviewed carefully and the impacts of any such terms fully considered prior to execution. If you need assistance with a lease, please reach out to one of our experienced business attorneys.

Whose Insurance Should Pay for Vehicle Repairs?

Whose Insurance Should Pay for Vehicle Repairs?

car accident, paperwork, injury, lawyer,

After an accident, a new or potential client will often ask me: “Who should handle my wrecked vehicle – my insurance company or the at-fault driver’s insurance company?”  True-to-attorney form, I often respond, “it depends.”

Assuming both insurance companies have property damage coverage, there are pros and cons to each approach. Sometimes it comes down to what is most important at that time: speed and convenience or trying to maximize every possible dollar recovered.

Even though someone else was at fault for the accident, many people will go through their own insurance company for their damaged or totaled vehicle (assuming they have purchased Collision Coverage). Collison Coverage is no-fault coverage, i.e. coverage doesn’t depend on whether you or someone else caused the accident. For this reason your insurance company (ideally) will start processing the claim right away: paying for repairs, or if your car is a total loss, paying for the actual cash value of the vehicle (minus the deductible).  If you have rental coverage, often limited to 30 days, your insurance company will handle that as well.

On the other hand, if you go through the at-fault insurance company for your damaged or wrecked car, there can be a delay in payment as the insurer will want to complete its liability investigation to make sure its insured was indeed responsible for the accident. You may have to wait for the liability insurer to speak with its insured, get police reports and maybe even require a statement from you, which can be fraught with risk. Also, there is the consideration that the at-fault insurance company is an adverse party that has no contractual relationship with you – it doesn’t have the obligation of good faith and fair dealing that you have with your own insurance company.

Given all these potential downsides, why go through the at-fault insurance company?  In addition to not having to make a claim against your own insurance company and theoretically staving off any premium increase, you can potentially recover additional types of damages against the at-fault insurance company.

Even if properly repaired, people intrinsically know that a car that has been in an accident is not worth as much as the equivalent vehicle that has not been an accident. Against the at-fault insurance company, you can pursue a diminished value, or loss of value, claim that takes into consideration that even properly repaired vehicles have diminished value in the eyes of potential buyers. Next, rental coverage with your own insurance company is limited to the coverage in the policy (often 30 days), there is a claim for “loss of use,” against the at-fault insurance company that is for the reasonable period necessary to repair the vehicle or obtain a comparable permanent replacement if your vehicle is totaled. Wis. J.I. CIVIL 1800; Kim v. Am. Fam. Mut. Ins. Co., 176 Wis. 2d 890 (1993). So, if repairs take months, the at-fault insurance company is responsible for paying for a rental or providing you the equivalent value, and you are not limited to the day or dollar limit of your own insurance policy limits

Therefore, the decision of which insurance company to go through for vehicle damage when you are not at fault for the accident, is personal and situational dependent. It is one of many things that an experienced accident attorney can help you navigate following a crash.

If you have questions, or need help following an accident, please reach out to one of our experienced accident and personal injury attorneys.