2016 milwaukee successful litigation

8/18/2019 2016 Milwaukee Successful Litigation

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April 2016


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www.dkattorneys.comBROOKFIELD | GREEN BAY | MILWAUKEE

Whether a multi-national corporation, a sole proprietorship, or somewhere in-between,

ourLitigation Team’s

goals are the same – to anticipate, avoid, resolve and win legaldisputes. We often help our clients avoid the nancial and emotional costs and uncertainties of

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have handled hundreds of trials in front of juries, judges, arbitrators, and

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ELECTRONIC INFORMATION

Changes to rules should help

hold down litigation costs

12INSURANCE COVERAGE

How to ensure policy triggers

are hit in commercial litigation

8OWI CASES

How to score a victory even

when the evidence is stacked

against your client

4TO CATCH A THIEF

Having the right experts in

place can minimize damage

10

INSIDE: April 2016

A p r i l 2 0 1 6

DIRECTORY | 19 - 26

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WISCONSIN LAW JOURNAL — SUCCESSFUL L IT IGAT ION 3APRIL 2 016


4/28

By Dennis Melowski

Melowski & Associates

The last two drunken-

driving cases I have taken to

trial had the following fact

patterns:

Case No. 1: The client was

stopped by a veteran countysheriff’s deputy for repeated

lane deviations. The client

admitted to drinking, failed

roadside-sobriety tests, and

submitted to a blood test

with a result of 0.22.

Case No. 2: The client

stopped for running a stop

sign. The client admitted

to having five drinks,

“stumbled” outside his

vehicle, performed poorly

on field sobriety tests, and

submitted to a blood test

with a result of 0.17.

As you can see, neither

situation seemingly

presented a likelihood of

acquittal. In fact, most

attorneys, even those

experienced in defendingpeople accused of OWI,

would substantially temper

their client’s expectations for

a favorable outcome.

Yet in each of these cases

mentioned above, the jury

returned verdicts of not

guilty in relatively short

order. And to really send a

message, the jury acquitted

on the accompanying traffic

citations. These verdicts were

tantamount to a complete

repudiation of the officer’s

claims.

But why?

Any lawyer who has done

a meaningful amount of OWI

defense knows that such

cases can be very difficult.

In nearly every instancethere are allegations of poor

driving, poor coordination,

and general intoxicated

behavior. And all of this has

usually been observed by

an officer in a crisp uniform

adorned with a shiny badge.

Even so, the sharpest arrow

in the prosecutor ’s quiver is

generally a chemical breath

or blood test. The general

belief is that such scientific

Dennis Melowski

is an OWI

defense attorney

at Sheboygan-

based Melowski

& Associates.

Rethinking your approach to

jury verdicts in OWI casesIt’s not guilt or innocence … it’s fair or unfair

thinkstock

WISCONSIN LAW JOURNAL — SUCCESSFUL L IT IGAT ION 4 APRIL 2016


5/28

evidence is beyond reproach.

To better understand what an OWI

lawyers must go through, think of

this like having to defend a bank

robber who was not only caught

on video and positively identified

by three different tellers, but who

also left his driver ’s license at the

scene. Such analogies go only so

far, though.What most practitioners ignore,

or at least don’t fully appreciate, is

the one big distinction between OWI

cases and other types of criminal

offenses. This is that many jurors

have actually driven after drinking.

It is precisely this self-awareness of

“there but for the grace of God go

I” that should be capitalized on.

Given that many jurors can

plausibly see themselves sitting in

the very chair immediately next toyou, there is an expectation that

your client’s case will have been

investigated and in handled the way

they would expect their case to be

investigated and handled if they

had the misfortune of facing such a

charge. For example, jurors expect

a police witness to be truthful and

forthcoming.

They expect that something as

overwhelmingly important as a

blood sample will be responsibly

handled and analyzed by a

competent lab with competent

personnel. They expect this lab will

vigorously adhere to the higheststandards in the processing and

testing of the sample. In short, they

expect the entire process to be

objectively fair.

It is against this backdrop that

defense counsel should frame

the issues at trial. Think less of

the traditional framework of guilt

and innocence, or even “beyond a

reasonable doubt,” for that matter.

Draw up your presentations and

arguments in terms of fairness.The more instances of apparent

unfairness you can expose during

your trial, the greater your chance

of getting a not-guilty verdict. For

example, in scenario No. 2 above,

the officer testified that my client

“stumbled” upon exiting his truck.

However, the video did not bear this

out, not even remotely.

Similarly, the angle at which the

officer’s squad car was parked made

it impossible to determine with any

certainty that my client had failed to

stop at the stop sign. All this meant

that over the course of the trial,

even the slightest embellishmentby the officer (of which there were

many) became yet another example

of the officer’s dishonesty.

Case No. 1 unfolded in a similar

matter. This time there was no video

offered at trial, but the officer’s

account of the events was riddled

with inconsistencies and mistakes that

severely hamstrung his credibility.

In each case, none of the many

favorable points I scored pointed

directly to actual innocence.Instead, the takeaway was that no

objective person listening to the

testimony would have described the

officer as fairly portraying the facts.

Successfully undermining the

credibility of the police witness can

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6/28

considerably stunt the remainder of

the prosecutor’s case, namely the

blood-test result. Jurors are more

receptive to attacks on this evidence

if they are already skeptical of

untrustworthy law-enforcement

testimony.

In sum, the jury doesn’t

need proof the blood

evidence was handled thesame way a disgruntled

UPS driver would a

package on his last day

at work. Jurors will

concentrate on other

inconsistencies if

similar instances

of unfairness can

be shown. For

that reason, it’s

good to direct their

attention to missteps

in laboratory protocol,

suspicious equipment

performance, failure to

scrupulously follow quality-

control procedures, etc. All these

things will take on added weight if

they happen to be combined with

acts of unfairness in other parts of

the prosecution.

In neither of the cases mentioned

above, for instance, was I able to

offer the jury direct evidence of

a flawed test result in my client’s

case. What I was

able to

offer

was a

depiction of a

laboratory process that would be

mortifying to the jurors if it were

used to test their own blood. In my

experience, such depictions are

often more powerful than evidence

of faulty tests.

I am a big proponent of speaking

to jurors after trials. I like to see

what they were thinking of before

reaching a verdict.

Rarely have I spoken to

a juror who expressedconcern that my client

was factually innocent.

What they have

expressed,

consistently is

anger or disbelief

that “an officer can

just lie like that” or

“is that really the lab

responsible for all the

blood tests in the state?”

Essentially, jurors will

ultimately judge the case

over whether they think it

was brought in a fair way or

not. Empower them to do so at

every opportunity.

In the waning moments of my

closing arguments, I try to avoid

asking the jury to find my client

“not guilty.” Instead, I tell them

to “do the right thing.” And, more

often than not, they do.

Think less of the traditional framework of

guilt and innocence, or even “beyond a

reasonable doubt,” for that matter.

Draw up your presentations and

arguments in terms of fairness.



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8/28

By Susan Schellinger

Davis & Kuelthau

Quite simply, successful litigation

from the plaintiff’s perspective is one

that results in a net recovery.

Whether or not a business should

invest in litigation against a supplier,

customer or competitor is a business

decision. That business decision

often turns on many considerations.

One that is essential is whether or

not a potential monetary recovery

will materially exceed the financialinvestment in the litigation to make

the time and distraction worthwhile.

Therefore, of utmost concern

before beginning a case is evaluating

the likelihood of collecting from

the defendant. Regardless of that

consideration, it is imperative that a

plaintiff consider whether or not the

defendant’s insurance coverage can

be triggered to maximize recovery.

As such, it is critical to know and

understand the types of insurancepolicies that are most likely to be held

by the defendant and how to trigger

coverage under those policies. Listing

the factual allegations in a complaint

as they relate to insurance coverage

is just as important as alleging all the

legal elements of the causes of action.

The nature of the complaint’s

allegations will initially dictate

whether or not there is coverage.

Coverage is easily triggered in the

typical negligence case that allegespersonal injury. More care is required

to trigger coverage in a commercial

dispute. Contrary to common belief,

coverage can, and often is, triggered

even in a run-of-the-mill breach of

contract dispute if the complaint is

artfully drafted.

The most common type of policy

held by most businesses is a

commercial general-liability policy.

Coverage is triggered where there is

“property damage” caused by “an

occurrence.” Thus, plaintiffs should

take care to allege both of those

elements by generally describing

all the categories of damages and

precisely how those damages were

caused. “Property damage” is

typically defined as physical harm to

tangible property.

There are standard exclusions

that preclude coverage for the

policyholder’s own work and damage

to its own product. Thus, if there is any

damage, regardless of how minor, to

property other than the defendant’sproduct, it should be articulated

in the complaint. For example, in

the manufacturing context, did a

supplier’s product not only fail to

meet specifications, but also, did your

business incorporate the supplier’s

product into your product? Did you

have to discard some of your inventory

as a result? Have you received claims

by your customers as a result of

damage caused by a faulty product

that incorporated the supplier’s part?

In the construction context, it’s

important to identify all damages

caused by defective construction ordefective construction components.

Knowing is winningHow to trigger insurance coverage in commercial litigation



9/28

Did a leaky roof or windows cause

damage to drywall, carpeting, or

contents of the building?

Importantly, property damage

within the meaning of a commercial

general-liability policy also includes

loss of use of tangible property,

even if that tangible property is not

physically injured. This provision,

which provides coverage for acomplete loss of use, or even a partial

loss of use, is often overlooked.

For example, if a supplier’s defective

part, product or machine causes your

business to be affected such that you

cannot operate parts of your plant or

production line, or even if it has only

diminished your production capacity,

coverage may be triggered.

Standard commercial general-

liability policies also require an

allegation that an “occurrence”caused the physical damage to the

tangible property or the loss of use.

An “occurrence” is typically defined

as an accident, including continuous

or repeated exposure to the same

general harmful conditions. It is

an event that takes place without

foresight or expectation.

Insurers will argue that a breach

of contract is not an “occurrence.”

Thus, the complaint should go beyond

merely stating that the defendant

breached a contract. It should

describe not only the damages that

trigger coverage but also the precise

mechanism that caused the propertydamage or loss of use.

For example, rather than merely

alleging that a supplier breached a

contract by providing a defective

part, describe how that defective part

caused the breakdown of a machine,

causes continuous wear and tear on

a machine, or resulted in product or

packaging that is lost or damaged.

Likewise, while defective

construction may not be an

“occurrence”, continuous moisturedamage caused to tangible property

by defective construction will

constitute an occurrence. Care should

be taken to identify whether defective

construction allowed water leaks,

which in turn caused the damage.

Finally, coverage under a

commercial general-liability policy

is ordinarily triggered by the date of

the occurrence, and not the date the

claim is made. Therefore, care should

be taken to allege the dates that harm

was caused. If the harm was caused

over an extended period of time, there

is the possibility of triggering more

than one policy and thus, more thanone policy limit.

In addition to commercial general-

liability coverage, there are various

types of policies written for directors

and officers liability, professional

liability, employment-practices

liability and various other liability

coverages specific to the nature

of the defendant’s business and

industry. All these types of potential

coverage should be considered and

form policies should be consulted toidentify the typical coverage grants

and the typical exclusions in order to

guide the plaintiff’s allegations.

Knowing how to trigger coverage

is knowing how to ensure a win in

commercial litigation.

www.kmksc.com

Barnabas Business Center • 4650 N. Port Washington Road • Milwaukee, WI 53212-1059Telephone 414.962.5110 • Facsimile 414.962.8725 • Email [email protected]

“At every step, KMK’s attorneys werethere for us with their full energy, good judgement and expertise.”

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Our Clients Say it All For Us

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“They have always exceeded ourexpectations and we continue torecommend them to others.”



10/28

By Paul Rodrigues

Director at The BERO Group

A client confides in you that a

trusted employee is suspected of

stealing and asks what should be

done. Should the employee be

fired or should law enforcement be

called? Should the client’s banker

and insurance agent be called?

The answer to all these questions

is “yes” — but not yet. Because

fraud is a highly emotional crime,

the natural response is to confront

the suspect, fire him or her, or call

on law enforcement to start an

investigation.

As well-intentioned as these

responses may be, acting on

impulse is rarely the best way to

proceed. Terminating the suspect

or contacting law enforcement too

quickly could significantly impair

the ability to build a case or identify

the true nature and extent of the

fraudulent activity.

For example, a terminated

employee may rightly decline

to assist in the investigation or

otherwise invoke constitutional

TO CATCH A THIEFHaving the right experts in place can minimize damage



11/28

protections when law enforcement

arrives. Accordingly, the urge to

fire the suspect should be resisted

and your concerns should be kept

hidden from everyone within the

organization.

Once fraudulent activity is

suspected, the first course of action

should be to contact a CertifiedFraud Examiner who has expertise in

investigating and litigating white-

collar criminal matters. Responding

to the specific allegations, an

experienced examiner can work

with counsel to develop the facts

of the case and write a detailed

report suitable for legal action and

insurance recovery.

In fact, examiners are

extraordinarily equipped to

investigate fraud allegations and

potentially obtain a confession

from a suspect. Certified Fraud

Examiners are trained to properly

collect and secure evidence,

document means and motive,

identify conspirators and relate facts

to the specific burden of proof to

be met. Examiners are also skilled

in analyzing the financial controls

of an organization and are able

to recommend specific anti-fraud

controls to limit future losses.

Once a legal strategy has been

established and the need for any

additional work identified, the

next call should be to the client’s

insurance carrier. Failing to notify an

insurance carrier in a timely manner

or understand the nuances of policy

provisions could significantly impair

your client’s ability to recover

damages and limit his or her ability

to pursue civil remedies. Discussthe nature and extent of policy

coverage, particularly as it relates

to loss limitations, and whether

the policy extends to fraud events

occurring prior to the year in which

the fraud was discovered.

Once the client’s insurance carrier

has been contacted, the client’s bank

should be notified of the suspected

fraud. Failing to promptly notify the

bank of suspect transactions could

limit your client’s ability both torecover lost money and to hedge

against future losses.

What’s more, failing to taking a

hard stand against fraud merely

invites more fraud. Failing to

prosecute or not attempting to

prosecute may prevent you from

collecting insurance proceeds.

For these reasons, it’s essential to

get in touch with law-enforcement

officials, but this should be done

only at the appropriate time.

Paul Rodrigues is a director at The

BERO Group. He serves as an expert

witness for forensic accounting,

fraud and financial damage matters.

Rodrigues can be contacted at

[email protected].

Once fraudulent activity is suspected, the

first course of action should be to contact

a Certified Fraud Examiner who has

expertise in investigating and litigating

white-collar criminal matters.

t h i n k s t o c k



12/28

Navigating new

rules for electronic

information retention

thinkstock



13/28

By Ryan M. Billings

Kohner, Mann & Kailas

Anyone who is involved

in or reasonably expects

litigation has a duty topreserve documents and

information they have,

including electronically stored

information that might relate to

the litigation.

A party that fails to meet this

obligation can face monetary

penalties and other court

sanctions. They can be severe

— in extreme cases courts

have awarded fees in the

millions of dollars, dismissedcases or defenses, and have

even threatened offending

parties with imprisonment for

contempt of court.

To avoid the risk of stiff

penalties, companies often err

on the side of caution and over-

preserve electronically stored

information. And with the

recent increase in the volume

of information generated in the

course of business operations,data preservation has become

increasingly expensive.

A recent study found that

some companies are spending

millions of dollars a year to

preserve electronic records.

New changes to the Federal

Rules of Civil Procedure could

serve to help businesses limit

these costs, and better manage

the risk of sanctions.

On Dec. 1, Federal Rule37(e), which deals with the

preservation of electronically

stored information, was

significantly amended. The

former Rule 37(e) was limited

and merely instructed courts

that they could not sanction

a party that lost such data “as

a result of the routine, good-

faith operation of an electronic

system.” This provided

little practical guidance to

companies in making decisions

about what data they were

required to retain. The new

Rule 37(e) provides a much

clearer standard.

The amended rule clarifies

that when companies foresee

litigation or become involved

in a suit, they have a duty

to take reasonable steps to

preserve electronically stored

information. If a party does

indeed take reasonable steps

toward that end, it cannot

be sanctioned because of

lost data. Even if information

is lost because of a party’sfailure to make reasonable

preservation efforts, the courts

must first decide if the lost

information can be restored

or replaced with additional or

alternative discovery before

considering sanctions. Further,

before sanctions may be

imposed, a court must make

an affirmative finding that the

party that lost the information

acted intentionally, or thatthe opposing party has been

prejudiced by the loss.

Unless the court finds that a

party lost electronically stored

information intentionally,

the court may not impose

sanctions any greater than

what is necessary to cure the

prejudice to the opposing

party. The amended rule further

clarifies that, absent a finding

of intentional deprivation, the

court may not impose the most

severe sanctions, including the

dreaded “adverse inference”

penalty, in which the court

or jury presume that the lost

information was unfavorable,

or the “nuclear sanction,”

involving outright dismissal of

an action or default judgment.

The amended rule provides

structure and guidance to

companies deciding how

and when to preserve data

that may be relevant to

litigation, and protects them

as long as they act reasonably.

Companies can limit risk and

curb costs by tailoring their

document-retention policies

and litigation holds to the

amended rule.

In addition, counsel facing

motions for discovery

sanctions have new defenses

to protect their clients.

Conversely, parties seeking

to pursue sanctions must

make sure to exhaust other

remedies and be prepared to

show prejudice or intentional

deprivation before they seek

court intervention.

While the amended rule

applies only to cases under

federal law, Wisconsin

discovery law tends to

gravitate, over time, to the

federal standard. Businesses

and counsel should take heed

of the changes.

Ryan M. Billings

is an attorney

at Milwaukee-

based Kohner,

Mann & Kailas.

He concentrates

on business

and corporate

litigation,

with a focus

on complex

litigation,

including

effective

management

of electronic

discovery.

On Dec. 1, Federal Rule 37(e), which deals

with the preservation of electronically

stored information, was significantly

amended. … The new Rule 37(e) provides

a much clearer standard.

Amendments to Federal Rules of Civil Procedure should aid counsel in

helping clients limit preservation costs, exposure to discovery sanctions

WISCONSIN LAW JOURNAL — SUCCESSFUL L IT IGAT ION 1 3APRIL 2 016


14/28

The carrot

or the

stick?

By Steven C. McGaver

Gimbel Reilly Guerin & Brown

In the course

of a standard,

periodic internal

investigation, a

health care provider

will sometimes learn that

it has committed one or more legal

violations.

These violations can range fromsimple inaccurate billings, resulting

in a relatively minor Medicare

overpayment, to more troublesome

missteps such as the intentional filing

of false claims resulting in possible

criminal liability. Once these things are

uncovered by a health care provider,

the difficult question becomes: “What

should we do with it?”

It’s true that some disclosures of

False Claims Act or other criminal

law violations are probably notbe “mandatory.” Even so, the

government has made an effort to

encourage voluntary disclosures by

offering some assurance of leniency

to those who make them.

Depending on one’s perspective,

these incentives could be viewed as

either a “carrot” or “stick.” Regardless

of how they are perceived, the

government policies that encourage

voluntary disclosure should be

weighed carefully when faced with

violations of criminal law.

In 2003, the U.S. Department

of Justice’s Corporate Fraud

Task Force issued “Principles ofFederal Prosecution of Business

Organizations” to various heads of

Department of Justice components

and individual U.S. Attorney’s Offices.

This document generally set forth

a variety of principles to be applied

by federal prosecutors in deciding

whether to proceed criminally against

corporations.

The DOJ sets forth as a “general

principle” that a “corporation’s timely

and voluntary disclosure of wrongdoingand its willingness to cooperate with

the government’s investigation may

be relevant factors” in a decision of

whether to proceed criminally. It goes

on to say, “even in the absence of a

formal program, prosecutors may

consider a corporation’s timely and

voluntary disclosure in evaluating

the adequacy of the corporation’s

compliance program and its

management’s commitment to the

compliance program.”

Voluntary disclosure has even been

dealt with in matters concerning

federal sentencing. It’s true that in

the landmark case of United Statesv. Booker, the U.S. Supreme Court

no longer required mandatory

application of the Federal Sentencing

Guidelines. Yet even with this

ruling, it is important to note that

the guidelines call for a downward

departure in sentencing in which

the defendant “voluntarily discloses

to authorities the existence of, and

accepts responsibility for, the offense

prior to the discovery of such offense,

and if such offense was unlikely tohave been discovered otherwise.”

There are no formal rules

governing voluntary disclosures from

a criminal perspective. One must

therefore tread lightly when making

the decision to voluntarily disclose

criminal-law violations and balance

the possible mitigation of criminal

consequences that could arise from

voluntary disclosure against the

possible criminal consequences of

saying nothing.

There are no formal rules governing voluntary

disclosures from a criminal perspective. One must

therefore tread lightly when making the decision to

voluntarily disclose criminal-law violations …

Do rewards of voluntary disclosure of criminal violations in the

health care arena outweigh the potential costs?



15/28

thinkstock photos



16/28

By Scott Halloin

Halloin Murdock

Halloin Murdock S.C. has completed

the litigation of a construction-delay

claim against a supplier involved

in one of the largest projects in the

country: the 31st Street Breakwater in

Chicago, Ill.

Halloin Murdock’s client, Ozaukee

County-based Edward E. Gillen Co.,

asserted a delay claim against one

of its suppliers using the new but

seldom-used Actual Cost Method.What’s more, it went on to defeat an

opposing expert using a scheduling

analyst’s more commonly used

Modified Total Cost Method.

The outcome signals a huge change

in how delay claims are proved.

Because delay claims derive from

complicated fact scenarios, a small

cottage industry has developed

around “scheduling analysts.” These

analysts, often called to be expert

witnesses, typically calculate delay

damages using the Modified Total Cost

Method, including the Critical Path

Method. In other words, scheduling

analysts usually compare project

schedules to find a disruption point,

and then calculate the amount of work

that was performed out of sequence

because of that disruption.

Scheduling analysts have come

under scrutiny both because they

often have little financial training and

because their methods seem to not be

governed by objective standards. The

Federal Court of Claims, and industry

leaders, have spoken highly of an

alternative — an accounting-based

damage formula called the Actual

Cost Method.

In the past, claims involving the

Actual Cost Method have been limited

to large government contracts that

have professional cost coders trained

in Government Accountability Office

compliance. For that reason, the

method has been rarely used in the

more typical sorts of construction-

delay claims.

Halloin Murdock, working with

theories developed by accounting

firm The VanderBloemen Group,

recognized that accounting and

management software has advanced

enough that compliance with the

Actual Cost Method’s more rigorous

coding requirements is now possiblefor many projects.

In the Gillen case, the

VanderBloemen Group prepared

a detailed Actual Cost Method

evaluation and eventually concluded

that Gillen had incurred just more

than $14 million in damages. The

supplier in the case responded by

asserting that the Actual Cost Method

involved nothing more than adding

up a pile of checks for each cost code,

and contended that only a schedulinganalyst was competent to testify on

the question of delay damages. Gillen

replied that the Actual Cost Method

provides a conservative, and more

accurate, approach for calculating

delay damages.

Two months before scheduled

arbitration in the matter, the

defendant supplier provided a 649-

page expert report from the renowned

scheduling analyst Andrew Engelhart.

The report contained thousands of

discrete data points. It is believed

that the total cost of Engelhart’s

work, combined with that of the

specialty counsel hired to present the

argument, exceeded $1 million.

Rather than conduct a detailed

examination of Engelhart for the

purpose of possible impeachment,

a decision was made that, in light

of his substantial experience in

testifying, such a procedure would

yield little fruit. Instead, Engelhart was

merely asked to identify the primary

fact assumptions used to create his

timeline in his massive report. He

identified 37.

Halloin Murdock then structured

the entire arbitration around those

37 assumptions, reviewing each

assumption with each lay witness.

During Engelhart’s cross-examination,

Halloin Murdock showed that any

minor variance in the 37 assumptions,even if it only altered the timeline by a

few days, greatly changed his damage

assessment.

Meanwhile, the supplier confronted

VanderBloemen with three days of

examination on cost coding and

Actual Cost Method theory.

Nine months after the start of the

arbitration, retired Federal Court

Judge Robert Coar found in favor of

Gillen, and awarded it $14,005,860.

Coar stated that Engelhart hadessentially “reviewed voluminous

records and wove them into a cloud.”

The arbitrator, for his part, noted

his preference for the Actual Cost

Method and cost coding under the

circumstances, and found that “Gillen

is entitled to recovery the full amount

of its claimed damages.”

The lawsuits are far from finished.

About a dozen claims relating to the

project continue to be litigated in Cook

County Circuit Court and other venues.

How to succeed againstthe odds (and experts)Halloin Murdock case proves you don’t always get what you pay for



17/28

By F. Dennis Saylor IV and Daniel I. Small

Dolan Media Newswires

When it comes to organizing for

trial and questioning witnesses, there

is no “one size fits all” way to do it.

Nevertheless, there are good reasons

for and against taking different tacks.

It’s commonly accepted that using

no notes is a bad idea. Rather than

writing a full-on script listing verbatim

everything you might say it at trial,

it’s often better to rely on a well-

researched, bullet-point-style outline.

Why not a script? It is, in many

respects, an attractive option.

Certainly it is the safest one. For

some lawyers, particularly early in

their careers, or if they don’t try casesregularly, it may be a helpful and

workable one.

However, it comes with some

inherent dangers that must be

recognized.

For one, there is a powerful

magnetic attraction between your eye

and the written word. It’s unavoidable.

The more you have written down, the

more you will look down and read.

The more you look down, the less

you pay attention to what’s important,including:

• The witness — Keeping eye

contact, assessing how he is doing,

and listening for the odd words or

facts that can make a huge difference

in your case.

• The jury — Developing a

relationship, judging how its

members are responding.

• The judge — Who might be

giving you telltale signals that you’re

venturing in the wrong direction, orgoing on too long.

• Both benches — Maybe opposing

counsel is not a good enough poker

player to hide when one of your points

has hit its target. Maybe your bench is

trying to tell you something (e.g., did

you forget to offer that last exhibit?).

Then there’s the matter of voice.

Actors and actresses spend a lifetime

learning how to read a script and

sound natural. You haven’t. You have

a different voice for reading, and

most people can tell and don’t like it.

They want you to talk with them, not

read at them, even if that means you

stumble occasionally. That only makes

you more human.

Also to be considered is length.

We’re lawyers, and therefore we write

too much.

If your questions are so long that

you need to write them out, they’re

too long. And if you’ve written out

seven really good questions on a

point, but in court your witness does

a good job covering the issue in just

three, will you have the will power to

skip the other four?

The good news is that there is a

middle ground between no notes and

a script. It’s a simple bullet-point-styleoutline. Properly done, it’s more of a

checklist than an outline.

The goal is to give you both

inspiration and guidance. Whether

you’re staring down a witness

across the deposition table, reading

an exhibit, or watching a jury’s

responses, you can easily return to

your checklist, see where you are, and

know where to go from there. To be

effective, it must be thorough, easy to

use and well organized.The witness outline should be in a

three-ring binder, with no more than

a single subject matter being dealt

with on each page. The text should

always be in large type, with generous

spacing, so you can glance at it and

find your place.

Draw a line two-thirds of the way

over on the right-hand side and a line

toward the bottom. On the left-hand side

of the page are the notes for questions,

indicated in short bullets. There shouldbe no full sentences, no question marks,

and nothing that is more than three

words long. These are simply topics. You

are making a checklist of the things to

ask that witness.

The only exceptions to this general

rule are quotations from a statement

or a document, questions that are

foundational (e.g., “Is this being kept

in the ordinary course of business?”),

or hypothetical situations presented to

an expert witness.

The right-hand side of the witness

outline is for your notations — which

can consist of anything that backs up

the questions you are asking. Every

reference and any exhibit or citation

that relates to a question you intend to

ask should be noted on the right side

of the witness outline (e.g., references

to depositions or other transcripts,

with page and line numbers, exhibit

and/or Bates numbers, and more).

The other thing to put on the

right side of the line is a few notes

to yourself. You should include

information that will help you during

the trial or deposition. Next to exhibit

references, write “Offer.” If you tend

to talk too fast, write “slow down.” If

you wander around too much, write“stand still.” These are your notes.

They are for your eyes only.

This system can be used no

matter if you are dealing with a

small case with only one witness, or

a large, complex case with dozens

of witnesses. Every notebook is an

independent, complete and separate

item. While the size and number of

notebooks will change, the basic idea

stays the same.

While this system has been usedby lawyers for many years, there is

no reason to dogmatically insist on

adherence to it. What is most important

is that you develop your own system

that you feel comfortable with, and then

use it in a disciplined way.

Consistency is essential. Every time

you open up the notebook, what you

see on the page is comforting and

familiar to you. Every time you open

the witness notebook, no matter what

the situation, no matter how frazzledyou are, you can have confidence that

you are prepared, and what you are

looking for is “in there.”

Judge F. Dennis Saylor IV sits on the

U.S. District Court in Boston. Before

his appointment to the bench, he was

a federal prosecutor and an attorney

in private practice. Daniel I. Small is

a partner in the Boston and Miami

offices of Holland & Knight. He is a

former federal prosecutor and teaches

CLE programs across the country.

THE WITNESS OUTLINE Success is borne by preparation



18/28

I I I

262.574.0374

215 W. NORTH ST. — WAUKESHA, WI 53188

www.vanderbloemengroup.com

WHAT DISTINGUISHES

THE V ANDERBLOEMEN GROUP?The VanderBloemen Group’s team of CPA’s and Business Advisors has been guiding businesses for

over 35 years. Finding the right expert can make the difference in an important case. Our litigation

team not only covers expert witness testimony but also claim analysis, claim preparation, report

preparation and contract compliance. The VanderBloemen Group assists both plaintiff and

defense attorneys in all stages of pretrial and courtroom activities.

“I have repeatedly turned to The VanderBloemen Group in my most contentious and complicated construction disputes. Without fail,The VanderBloemen Group has efficiently organized and analyzed significant quantities of documents and data and presented its opinionsin a clear, concise and compelling fashion. Its substantial experience and creativity has also repeatedly assisted me in resolving difficultaccounting and damages issues in the cases.”

— Brian R. Smigelski, DeWitt Ross & Stevens S.C.

“In working with the VanderBloemen Group on complex construction claims and litigation I have found their keen understanding ofcomplex construction cost accounting and practical solutions to questions presented to be a tremendous asset. Further , their claims analysis,trial preparation , testimonial experience and demonstrative aids are second to none . I would not hesitate to work with the VB Groupagain and highly recommend them to other counsel and companies in need of assistance.”

— Larry D. Harris, Partner, Fox Rothschild LLP

“I have had experience with Steve VanderBloemen and his staff as our experts in several multi-party, complex, aggravated litigation cases.He is one of the best prepared, most knowledgeable experts I have ever used. He is a great teacher when he testifies, as he states his opinionsand answers questions in a clear, concise, and interesting manner. I highly recommend Steve and his group for consultation and expert

testimony on any construction matter.” — Stephen E. Kravit, Kravit Hovel & Krawczyk s.c.


19/28

DILLON J. AMBROSEDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1410Email: [email protected] Website: www.dkattorneys.com

Practice areas: Litigation, construction litigation, environmental law

RICHARD F. BERO, CPA/ABV, CVA, CLP -MANAGING DIRECTORThe BERO Group N16 W23217 Stone Ridge Drive, Suite 250 Waukesha, WI 53188 Phone: 262-522-7922Email: [email protected]

Website: www.berogroup.comPractice areas: Intellectual property litigation, commercial litigation,forensic accounting, valuation

RONALD A. BERO JR., CPA, ABV, CFF, CVA,MAFF - DIRECTORThe BERO Group N16 W23217 Stone Ridge Drive, Suite 250 Waukesha, WI 53188

Phone: 262-522-7924Email: [email protected] Website: www.berogroup.comPractice areas: Intellectual property litigation, commercial litigation,forensic accounting, valuation

MELINDA A. BIALZIKKohner, Mann & Kailas, S.C.4650 N. Port Washington Road Milwaukee, WI 53212 Phone: 414-962-5110

Fax: 414-962-8725Email: [email protected] Website: www.kmksc.comPractice areas: Business and corporate litigation, dispute resolution,appellate practice, trusts and estate law

RYAN M. BILLINGSKohner, Mann & Kailas, S.C.4650 N. Port Washington Road Milwaukee, WI 53212 Phone: 414-962-5110Fax: 414-962-8725Email: [email protected] Website: www.kmksc.com

Practice areas: Business and corporate litigation and dispute resolution,appellate practice, business and corporate law, intellectual property law,international law

JAMES E. BRAZADavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1421Email: [email protected]

Website: www.dkattorneys.comPractice areas: Construction transactions and litigation, insurance coveragedisputes, arbitration and other alternative dispute resolution proceedings

THOMAS E. BROWNGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680

Email: [email protected] Website: www.grgblaw.comPractice areas: White-collar federal and state defense, products, liability,criminal law, complex civil litigation

MARILYN M. CARROLLDavis & Kuelthau, S.C.300 North Corporate Dr., Suite 150 Brookfield, WI 53045 Phone: 262-792-2412Email: [email protected] Website: www.dkattorneys.comPractice areas: Litigation, health care

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ROBERT L. GEGIOSKohner, Mann & Kailas, S.C.4650 N. Port Washington Rd.Milwaukee, WI 53212 Phone: 414-962-5110Fax: 414-962-8725Email: [email protected] Website: www.kmksc.com

Practice areas: Business and corporate litigation and dispute resolution,appellate practice, antitrust and trade regulation, insurance law, business andcorporate law, securities, international law

D. MICHAEL GUERINGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680

Email: [email protected] Website: www.grgblaw.comPractice areas: Personal injury, criminal law, civil litigation

AARON E. HALLDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202

Phone: 414-225-1411Email: [email protected] Website: www.dkattorneys.comPractice areas: Construction, commercial litigation,insurance coverage disputes

SCOTT HALLOINHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected]

Website: www.halloinmurdock.comPractice areas: Construction litigation, real estate litigation, insuranceclaims and recovery, business litigation

CLAIRE E. HARTLEYDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1412Email: [email protected] Website: www.dkattorneys.com

Practice areas: Commercial litigation, employment litigation, litigation

JOHN W. HEINDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1418Email: [email protected] Website: www.dkattorneys.comPractice areas: Commercial litigation, real estate

JOHNATHON E. HILDENDORFThe VanderBloemen Group, LLC215 W. North St.Waukesha, WI 53188

Phone: 262-574-0374Fax: 262-574-0369Email: [email protected] Website: www.vanderbloemengroup.comPractice area: CPA

JAMES IRVINEHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected] Website: www.halloinmurdock.comPractice areas: Business litigation, construction litigation, real estatelitigation, insurance claims and recovery

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22/28

WILLIAM A. JENNARODavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1426Email: [email protected] Website: www.dkattorneys.com

Practice areas: Litigation, mediation and arbitration, trusts and estates,succession planning

KATHRYN A. KEPPELGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website: www.grgblaw.comPractice areas: Civil litigation, appellate practice, products liability

PATRICK J. KNIGHTGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website: www.grgblaw.com

Practice areas: State and federal regulatory investigations, businesslitigation, civil litigation, criminal litigation, white-collar health care, white-collar criminal defense, health care fraud and abuse

STEPHEN L. KNOWLESDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1422Email: [email protected]

Website: www.dkattorneys.comPractice areas: Litigation, labor and employment, non-profit organizations

FRANK W. KOWALKOWSKIDavis & Kuelthau, S.C.318 S. Washington St., Suite 300 Green Bay, WI 54301Phone: 920-431-2221Email: [email protected] Website: www.dkattorneys.com

Practice areas: Construction transaction and litigation, commercial andresidential real estate, insurance coverage disputes

JOSEPH R. LAUR, CPA, CVA – DIRECTORThe BERO Group N16 W23217 Stone Ridge Dr., Suite 250 Waukesha, WI 53188 Phone: 262-522-7928Email: [email protected] Website: www.berogroup.comPractice areas: Intellectual property litigation, commercial litigation,forensic accounting, valuation

EMILY I. LONEGRANGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202 Phone: 414-271-1440Fax: 414-271-7680Email: [email protected]

Website: www.grgblaw.comPractice areas: Personal injury, civil litigation, commercial litigation, criminaland white-collar defense

RUSSELL S. LONGDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1456Email: [email protected]

Website: www.dkattorneys.comPractice areas: Commercial finance, commercial litigation, litigation

D I R E C T O R Y



23/28

JASON D. LUCZAKGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202

Phone: 414-271-1440Fax: 414-271-7680Email: [email protected]

Website: www.grgblaw.comPractice areas: Civil Litigation, business litigation, municipal law, licensing,criminal law, insurance coverage litigation, professional licensing anddisciplinary defense, appeals

KEVIN J. LYONSDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202

Phone: 414-225-1402

Email: [email protected] Website: www.dkattorneys.comPractice areas: Construction litigation, environmental law, mediation,arbitration

LIZ MAJERUSMelowski & Associates, LLC 524 South Pier Dr.Sheboygan, WI 53081Phone: 920-299-5074Fax: 920-395-2443

Email: [email protected] Website: www.melowskilaw.comPractice area: Drunk driving defense

MATTHEW R. MCCLEANDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1420Email: [email protected] Website: www.dkattorneys.comPractice areas: Construction and commercial litigation, insurance coveragedisputes, environmental law

STEVEN C. MCGRAVERGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202


Website: www.grgblaw.comPractice areas: White-collar criminal investigations, municipal law,employment law, criminal defense, civil litigation, licensing

LAURIE E. MEYERDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202

Phone: 414-225-1419Email: [email protected]

Website: www.dkattorneys.comPractice areas: Employment litigation, labor and employment, litigation

DENNIS MELOWSKIMelowski & Associates, LLC 524 South Pier Dr.Sheboygan, WI 53081Phone: 920-299-5074Fax: 920-395-2443Email: [email protected] Website: www.melowskilaw.com

Practice area: Drunk driving defense

ELIZABETH K. MILESDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1491Email: [email protected] Website: www.dkattorneys.comPractice areas: Litigation, construction litigation and environmental law

VICTORIA L. MORANDavis & Kuelthau, S.C.300 North Corporate Dr., Suite 150 Brookfield, WI 53045 Phone: 262-792-2408Email: [email protected] Website: www.dkattorneys.comPractice areas: Litigation, health care, real estate

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WILLIAM J. MULLIGANDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1429Email: [email protected] Website: www.dkattorneys.com

Practice areas: Construction, commercial finance

ANDREA MURDOCKHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected] Website: www.halloinmurdock.comPractice areas: Business litigation, real estate litigation, insurance claims

and recovery, construction litigation

ANTHONY MURDOCKHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected] Website: www.halloinmurdock.com

Practice areas: Insurance claims and recovery, construction litigation, realestate litigation, business litigation

MATTHEW MURRAYMelowski & Associates, LLC 524 South Pier Dr.Sheboygan, WI 53081Phone: 920-299-5074Fax: 920-395-2443Email: [email protected] Website: www.melowskilaw.com


KATHY L. NUSSLOCKDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1447Email: [email protected] Website: www.dkattorneys.comPractice areas: Commercial litigation, employment litigation, litigation

BRIAN J. PFEILDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1414Email: [email protected]

Website: www.dkattorneys.comPractice areas: Litigation, construction, commercial finance

DENIS J. REGANGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website:

www.grgblaw.comPractice areas: Business, real estate, estate planning

RICHARD E. REILLYGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website: www.grgblaw.com

Practice areas: Business Law, family law, complex civil litigation

PAUL RODRIGUES, CFE, CPA, CFF, CGMA,MST - DIRECTORThe BERO Group N16 W23217 Stone Ridge Dr., Suite 250 Waukesha, WI 53188 Phone: 262-522-7927Email: [email protected]

Website: www.berogroup.comPractice areas: Intellectual property litigation, commercial litigation,forensic accounting, valuation

D I R E C T O R Y



25/28

HUGO P. ROJASDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1413Email: [email protected] Website: www.dkattorneys.com

Practice areas: Litigation, immigration, employee benefits, labor andemployment

CHARLES DAVID SCHMIDTHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected] Website: www.halloinmurdock.comPractice areas: Insurance claims and recovery, construction litigation, realestate litigation, business litigation

SUSAN G. SCHELLINGERDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1492Email: [email protected] Website: www.dkattorneys.com

Practice areas: Construction and commercial litigation, litigation, insurancecoverage disputes, arbitration and other alternative dispute resolutionproceeding

THOMAS L. SCHOBERDavis & Kuelthau, S.C.318 S. Washington St., Suite 300 Green Bay, WI 54301Phone: 920-431-2229Email: [email protected]

Website: www.dkattorneys.comPractice areas: Construction litigation, insurance coverage disputes,litigation

MICHAEL K. SCOTTDavis & Kuelthau, S.C.111 E. Kilbourn Ave., Suite 1400 Milwaukee, WI 53202 Phone: 414-225-1427Email: [email protected] Website: www.dkattorneys.com

Practice areas: Commercial litigation, insurance coverage disputes,litigation

SHEILA SHADMANHalloin & Murdock, S.C.839 N. Jefferson St., Suite 503 Milwaukee, WI 53202 Phone: 414-732-2424Email: [email protected] Website: www.halloinmurdock.com

Practice areas: Business litigation, real estate litigation, insurance claimsand recovery, construction litigation

SARVAN SINGH JR.Melowski & Associates, LLC 524 South Pier Dr.Sheboygan, WI 53081Phone: 920-299-5074Fax: 920-395-2443Email: [email protected] Website: www.melowskilaw.com


ANTHONY J. STEFFEKDavis & Kuelthau, S.C.318 S. Washington St., Suite 300 Green Bay, WI 54301Phone: 920-431-2237Email: [email protected] Website: www.dkattorneys.comPractice areas: Litigation, labor and employment

MAX T. STEPHENSONGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website: www.grgblaw.comPractice areas: Family law

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CHRISTOPHER L. STROHBEHNGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202


Website: www.grgblaw.comPractice areas: Personal injury, commercial litigation, civil litigation, criminaland white-collar defense, insurance coverage litigation

ERIN M. STROHBEHNGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202

Phone: 414-271-1440Fax: 414-271-7680Email:

[email protected] Website: www.grgblaw.comPractice areas: Civil litigation, personal injury, employment law

ARTHUR K. THEXTONGimbel, Reilly, Guerin, Brown, LLP 330 E. Kilbourn Ave., Suite 1170 Milwaukee, WI 53202Phone: 414-271-1440Fax: 414-271-7680Email: [email protected] Website: www.grgblaw.comPractice areas: State and federal regulatory investigations, teaching andconsulting with health care with health care practitioners to prevent problems,business litigation, civil litigation, criminal litigation, white-collar health care,health care fraud and abuse

STEPHEN C. VANDERBLOEMEN

The VanderBloemen Group, LLC215 W. North St.Waukesha, WI 53188 Phone: 262-574-0374Fax: 262-574-0369Email: [email protected] Website: www.vanderbloemengroup.comPractice area: CPA

JOHN P. VANDERBLOEMENThe VanderBloemen Group, LLC215 W. North St.Waukesha, WI 53188 Phone: 262-574-0374Fax: 262-574-0369Email: [email protected] Website: www.vanderbloemengroup.comPractice area: CPA

ZACH S. WHITNEYKohner, Mann & Kailas, S.C.4650 N. Port Washington Rd.Milwaukee, WI 53212 Phone: 414-962-5110Fax: 414-962-8725Email: [email protected] Website: www.kmksc.comPractice areas: commercial litigation, commercial law, appellate practice

D I R E C T O R Y



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There’s OnlyOne Best

524 S Pier DrSheboygan, WI 53081

(920) 208-3800www melowskilaw com

Wisconsin’s most successful drunkdriving defense rm

2016 milwaukee successful litigation

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