Sloppy Kiss for the Trial Lawyers
Supreme Court Plants another Sloppy Wet Kiss on State Trial Bar
By Deb Jordahl
Friday, Wisconsin’s Supreme Court delivered another blow to Wisconsin business and industry. In yet another far reaching 4-3 decision, allegedly written to protect Wisconsin consumers, the court has guaranteed higher costs for business and consumers and higher fees for trial attorneys.In Stuart v. Weisflog, the court determined that ANY business entity or person providing a home improvement could be sued for twice the amount of damages caused by simple negligence on the part of contractor. Prior to the case, litigants could be awarded double the amount of damages and court costs for damage caused by contractor misrepresentation. Simple contractor negligence did not allow for double damages.
The decision means the Stuarts and their attorneys will get $190,000 for $95,000 in actual damages awarded by the jury rather than the $118,750 under the old formula. In the part of the decision addressing court costs, the majority really puckers up for the bar.
According to the Milwaukee Journal Sentinel, “the trial court had awarded the couple’s lawyers a little more than $15,000 in fees based on a percentage of a lower damage award; the high court decision held that the fees should be based on the number of hours the lawyers worked multiplied by a reasonable hourly rate. At trial, the lawyers asked for more than $200,000. The Waukesha County trial court will have to reconsider attorney fees using the hours worked method based on the decision.”
Cha-ching!
Consider that home improvement is defined as everything from making an addition to your home to painting, landscaping and repairing driveways. Now ask yourself: Will the Stuart decision encourage reluctant consumers to become private attorneys general and fight unfair trade practices which will deter future contractor malfeasance and promote the public good, as the majority asserts?
Or, will it place an unwarranted burden of possible criminal prosecution on the building trades and have far-reaching impacts throughout Wisconsin, as Justice Roggensack predicts in her dissent?[i]
Finally consider whether the lofty goal of turning reluctant consumers into attorneys general is an appropriate role for our state Supreme Court, because it sounds a bit like legislating from the bench to me.
[i] The dissenters said, “We agree with the statement of the court of appeals in the matter before us that “double damages and attorney fees help dispel the reluctance of parties injured by unfair trade practices to bring forward their causes of action and help deter similar and future contractor malfeasance, with the aggregate effect of working to the public good.”
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Conservatives need to keep the pressure on. Mike Gableman was a step in the right direction. Gather the troops. I hear there is another election in 09.
Paul Socha’s last blog post..TTTIIIMMMBBBEEERRR
Paul Socha 04.03.08 @ 7:28 pmYou realize that the so called “conservative” justices, which dissented in Stuart, would have effectively overturned state statute by utilizing the judicially created ecnomic loss doctrine? That my friends, is the judcial activism in Stuart.
The line about “private attorney generals” is in reference to an earlier appellate decision Benkoski v. Flood, 2001 WI App 84, which repeated the legislaure’s intent for the consumer protection laws. The majority applied state statute and prevailing case law. The dissent attempted to overturn it.
The characterization of Stuart as “judicial activsim” severly misrepresents the facts of the case. Of course, with Gableman now on the Court, there may no longer be a cause of action for fraud. It has already happened with the unwarranted expansion of the economic loss doctrine, which has effectively overturned 100 years of Wisconsin jurisprudence. Justices with a conservative slant wouldn’t do that would they? Yet, they have.
Anthony 04.04.08 @ 3:33 pm