Going It Alone In Court

Going It Alone In Court

Individuals have a right to self-representation in Wisconsin courts and in federal court.[1]  Pro se is Latin for “on one’s own behalf.” When a litigant proceeds without legal counsel, they are said to be proceeding “pro se.” See, e.g. Rivera v. Florida Department of Corrections, 526 U.S. 135 (1999). Although proceeding pro se is allowable, that does not mean it’s advisable.

The proliferation of legal self-help books such as Law for Dummies and Free Legal Help Made E-Z create the perception that anyone can successfully self-represent no matter how complicated the case. This, in turn, plays into the overconfidence effect, which biases our judgment in three ways: “(1) overestimation of one’s actual performance; (2) over placement of one’s performance relative to others; and (3) over precision in expressing unwarranted certainty in the accuracy of one’s beliefs.”[2]   Overconfidence can be dangerous.  No self-help book would convince a logical person to perform an invasive surgery on themselves. Although the risks of self-representation are less drastic, the likelihood of failure is equally high.

In court, the self-represented are bound by the same rules that apply to attorneys. The right to self-representation is “[not] a license not to comply with relevant rules of procedural and substantive law.”[3] While some leniency may be allowed to pro se litigants, “neither a trial court nor a reviewing court has a duty to walk pro se litigants through the procedural requirements or to point them to the proper substantive law.”[4]   A court’s patience will run thin quickly if a pro se litigant fails to follow the rules. As one commentary states: “Although the court may make special concessions in certain pro se appeals, it cannot be said that pro se appellants have any advantage over appellants who are represented by counsel. Whatever minor procedural deviations are allowed, a pro se appellant cannot compensate for the lack of legal training and therefore has a greatly reduced likelihood of success on appeal.”[5]

Based on the “greatly reduced likelihood of success,” most lawyers would never recommend that someone proceed without assistance of counsel. However, there are certain situations where it is a viable option. For instance, given the lower stakes in small claims action and the fact that small claims courts routinely deal with unrepresented parties, small claims court can be an acceptable arena for proceeding pro se. The Wisconsin courts’ website publishes free legal forms for small claims. [6]  

In short, there are a lot of factors that influence the decision of whether to retain an attorney or go it alone. If you have any self doubt  about self-representation then you should seek professional legal advice.

[1] A “corporation must be represented by a licensed lawyer in a legal proceeding other than in small claims court. See Wis. Stat. § 799.06.” Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 198, 562 N.W.2d 401, 405 (1997). The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654.

[2] https://en.wikipedia.org/wiki/Overconfidence_effect

[3] Farretta v. California, 422 U.S. 806, 834 n.46 (1975).

[4] Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1997).

[5] D. Walther, P. Grove, M. Heffernan, Appellate Practice and Procedure in Wisconsin, Ch. 11, sec. 11.9 (1986).

[6] https://www.wicourts.gov/forms1/circuit/ccform.jsp?page=3&FormName=&FormNumber=&beg_date=&end_date=&StatuteCite=&Category=51; https://www.wicourts.gov/services/public/selfhelp/docs/countylegalresources.pdf

Are Contractors Actually Fully Insured?

Are Contractors Actually Fully Insured?

Anyone who has inquired with, or hired, a contractor or homebuilder has invariably seen or been told by the company that they are “fully insured.”  More times than not, this statement simply means that the company has a standard commercial general liability (CGL) policy. Unfortunately, these “fully insured” statements understandably give the customer a false sense of security that if anything goes wrong with the work performed by the contractor or builder, its insurance company will cover the damage and make things right. In fact, with a standard CGL policy, the opposite is true:  the insurance company will not cover damage that arises out of the company’s work (or its contactor or subcontractor). What is often referred to as the “your work,” “business risk” or “exclusion” directs to an exclusion in standard CGL policies that bar coverage for property damage to the part of the real property that the company is performing work on. The language often looks like this in CGL policies:

This insurance does not apply to:

  1. Damage to Property

Property damage to:

…. (5) That particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the property damage arises out of those operations.

Practically speaking, this exclusion bars insurance coverage for damages such as deficient or defective work performed by the company or damage to your property caused by the company’s work. The net effect of no insurance coverage means that any recovery by the aggrieved customer will have to come against the company itself, which, depending on the company’s financial status, can be exceedingly difficult. Not only are many contractor and building companies set up as legal entities designed to protect against liability, but Wisconsin law exempts up to $15,000 in business assets from execution of a judgment. See Wis. Stat. § 815.18(3)(b).

In summary, it is incredibly important to vet the contractor or building company prior to hiring. In addition to their reputation and longevity in the community, you can inquire whether they have any insurance coverage or bond above a standard CGL policy and whether they have the financial resources to pay a judgement if a dispute arises. Moreover, the Wisconsin Circuit Court Access search (https://wcca.wicourts.gov/)  allows you to look up a company and see if they have unpaid judgments entered against them. This due diligence is necessary because a contractor’s claim of “fully insured” means little to nothing when the contractor’s work is the subject of the claim.

 

Tips to Avoid Scams and Identity Theft

Tips to Avoid Scams and Identity Theft

In today’s fast paced world, there is no end to the types of scams that target people of all ages, income levels and backgrounds. According to the Federal Trade Commission, one out of every ten adults in the United States will become a victim to a scam or fraud every year. Although one might think that scams, fraud and identity theft are easy to recognize, a study conducted by the Better Business Bureau, FINRA (the Financial Industry Regulatory Authority) and the Standford Center for Longevity found that 53% of all people approached by scammers will engage with them, while less than half become immediately suspicious and ignore the approach.

To avoid a Scam, be alert to these warning signs – the Four P’s:

PRETEND – Scammers will pretend to be from an organization you know and may use technology to change the phone number that appears on your caller ID to a familiar organization, like the IRS, Social Security Administration, Amazon or a charitable organization.

PROBLEM OR PRIZE – Scammers will then try to convince you that you are in trouble with the government and that you owe money. Sometimes you will be told that there is a problem or unauthorized charge on one of your accounts and you need to verify the account information, or that you have won a sweepstakes or lottery, but need to pay a fee to get the prize.

PRESSURE – Scammers want you to act immediately before you have time to verify anything or check out their story. They may say that if you act right now, the problem will be taken care of immediately before any further problems or damage occurs.

PAY – A sure sign of a scam is that you are asked to pay in a specific way, like with a money transfer company or through a gift card. Some will send a fake check to you, ask you to deposit it and send them the money.

What can you do?

  • Block unwanted calls and text messages.
  • Never give your personal or financial information to a request you were not expecting. Legitimate organizations and retailers do not call, email or text you and ask for personal information.
  • Do not click on links in emails sending information you have not requested or that you are not expecting. While the email may look like it comes from a company you do business with, if you were not expecting it, it is probably not real.
  • Resist the pressure. Anyone who pressures you to pay or give them your personal information is a scammer.
  • Never pay someone with a gift card or a money transfer service and do not accept or deposit checks for the purpose of sending money back to someone else.

Finally, in the event you are targeted or fall victim to a scam, report it to the Federal Trade Commission at reportfraud.ftc.gov. If you believe you have been a victim of identity theft, you can also put an alert and/or a freeze on your credit reports. Both can be done by calling the three credit bureaus (Transunion, Experian and Equifax) or going to each bureau online and placing the alert or freeze yourself. You can lift a freeze at any time. A fraud alert will require creditors to verify your identity before processing credit applications.  A credit freeze blocks any access to your credit report. The purpose is to prevent someone who may be trying to use your identity to obtain loans or credit card accounts in your name.

For more information about common scams and frauds visit https://www.usa.gov/common-scams-frauds.

Do Pedestrians Have the Right-of-Way?

Do Pedestrians Have the Right-of-Way?

I recently heard someone say as they confidently stepped off a curb into the street, “In Wisconsin, cars have to stop for us. Pedestrians always have the right-of-way.” Having grown up in Michigan, where our rules of the road have their own oddities (look up a “Michigan Left” for an example), I was not sure if this stranger was correct or not. As I am an attorney and looking into and analyzing laws is part of my job, I thought I would do some investigation into this matter. So, before you confidently step out into the street, please read below to learn more about the Wisconsin Statutes for pedestrians crossing the street.

The statutes are broken into three categories based on if there are traffic lights and if there is a crosswalk.

  1. When the crosswalk is in combination with traffic lights, the rules are transparent. Pedestrians have the right-of-way when a green light or walk signal indicate that it is appropriate for a pedestrian to cross, especially if the pedestrian is already in the crosswalk. Pedestrians also have the right of way when walking on a sidewalk where an alley or driveway crosses the sidewalk. Vehicles must wait for pedestrians to cross the alley or driveway before entering or exiting. While this does not specifically disprove the stranger I overheard, it is already not looking good for their legal proclamation.
  1. If there is a crosswalk, but no traffic light, the pedestrian still has the right-of-way, but with a significant caveat; pedestrians cannot suddenly leave the curb or sidewalk and cross the street if it would be difficult for the approaching vehicle to yield. What stands out to me about this caveat, is that the pedestrian must do a mental calculation as to how quickly a vehicle can brake in order to determine who has the right-of-way. This is no longer as transparent as before, because it is impossible to tell how well a particular vehicle’s brakes are working. At this point the stranger’s proclamation about pedestrian’s always having the right of way has another serious strike against it.
  1. Lastly, to further disprove the stranger’s theory, when crossing a road in a location other than a crosswalk, pedestrians MUST yield to all vehicles. Meaning unless traveling on a crosswalk or a sidewalk, vehicles have the right-of-way.

While my story ended with everyone making it across the street safely, that is not always the case. Many drivers are becoming more and more distracted and unfortunately the expectation of paying attention falls on the pedestrian. Remember to look both ways, obey all crossing signals and cross at a crosswalk if possible.

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 ABCs of ATVs and UTVs

The ABCs of ATVs and UTVs

In Wisconsin, all-terrain vehicles (ATVs) and utility terrain vehicles (UTVs) are becoming increasingly popular not only for recreation but for travel between and within local communities. In turn, more cities, villages, towns and counties are opening roads, streets and highways to ATV and UTV travel.

To start, ATVs and UTVs are regulated by state law through the Department of Natural Resources. Chapter 23.33 of the Wisconsin Statutes outlines numerous requirements from registration, to noise, to lighting and more. When it comes to access to roadways and highways, however, regulation largely falls on local communities.

State law allows local counties and municipalities to designate some or all highways and roadways under their jurisdiction as all-terrain vehicle routes. On designated routes, these local governments may enact ordinances that regulate the use of ATVs and UTVs. State law leaves local governments with discretion when it comes to regulating aspects of use on routes under their jurisdiction.

While local control is retained over travel within communities, this deference may result in a patchwork of different regulations affecting travel between communities. For example, while one community may limit hours of operation, another may have no limits. For these reasons, it is important to be familiar with the local laws of the communities you intend to travel before heading out on the road with your ATV or UTV.

Some basic things from state law to be aware of include registration as well as operator and occupant restrictions. With limited exceptions, ATV and UTV owners must register the vehicle with the State of Wisconsin. Non-residents may obtain an annual trail pass from the DNR. Generally, ATV operators must be at least 12 years of age and UTV operators must be at least 16. With some exceptions, those born on or after January 1, 1988 shall obtain a safety certificate issued by the DNR. With limited exceptions, those under 18 years of age must wear protective headgear. Furthermore, seatbelts are required for all occupants.

Remember, local communities may impose greater restrictions on operators and occupants. For example, local ordinances may require operators to be at least 16 years of age and hold a valid Wisconsin driver’s license. You should always check with local law enforcement prior to traveling between communities to ensure that you and your occupants will be in compliance with all laws governing all-terrain vehicle operation on locally designated routes.

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