2016 Milwaukee Successful Litigation

April 2016
When hurdles cross your path

Whether a multi-national corporation, a sole proprietorship, or somewhere in-between,
our Litigation Teams goals are the same to anticipate, avoid, resolve and win legal
disputes. We often help our clients avoid the financial and emotional costs and uncertainties of
trial by obtaining dismissals, summary judgments or favorable settlements. And when
circumstances warrant a trial, we are fully prepared to vigorously represent our clients and
have handled hundreds of trials in front of juries, judges, arbitrators, and
administrative tribunals.
We represent clients in disputes in areas such as:
Banking
Commercial & Contract
Complex Litigation
Construction
Consumer Protection
Creditors Rights
ERISA
Employment
Environmental
Immigration
Insurance Coverage
Intellectual Property
Labor
Land Use
Municipal
Nursing Home
Product Liability
Real Estate
Zoning
More information, visit www.dkattorneys.com

or contact our Litigation Team Chair,
Matthew R. McClean at 414.225.1420 or
mmcclean@dkattorneys.com.
BROOKFIELD | GREEN BAY | MILWAUKEE
www.dkattorneys.com
6
April 201
INSIDE:
April 2016
10
OWI CASES
How to score a victory even
when the evidence is stacked
against your client
INSURANCE COVERAGE
How to ensure policy triggers
are hit in commercial litigation
TO CATCH A THIEF
Having the right experts in
place can minimize damage
12
ELECTRONIC INFORMATION
Changes to rules should help
hold down litigation costs
DIRECTORY | 19 - 26
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A P R I L 2 01 6
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Rethinking your approach to

jury verdicts in OWI cases
Its not guilt or innocence its fair or unfair
By Dennis Melowski
Melowski & Associates
Dennis Melowski
is an OWI
defense attorney
at Sheboyganbased Melowski
& Associates.
The last two drunkendriving cases I have taken to

trial had the following fact
patterns:
Case No. 1: The client was
stopped by a veteran county
sheriffs 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 defending
people accused of OWI,
would substantially temper
their clients 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 officers
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 instance
there 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 prosecutors quiver is
generally a chemical breath
or blood test. The general
belief is that such scientific
A P R I L 2 01 6
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 drivers license at the
scene. Such analogies go only so
far, though.
What most practitioners ignore,
or at least dont 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 to
you, there is an expectation that
your clients 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 highest
standards 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
officers 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 embellishment
by the officer (of which there were
many) became yet another example
of the officers dishonesty.
Case No. 1 unfolded in a similar
matter. This time there was no video
offered at trial, but the officers
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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A P R I L 2 01 6
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Valuing What Matters
considerably stunt the remainder of

the prosecutors 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 doesnt
need proof the blood
evidence was handled the
same 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, its
good to direct their
attention to missteps
in laboratory protocol,
suspicious equipment
performance, failure to
scrupulously follow qualitycontrol 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 clients
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 expressed
concern 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.
6
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Knowing is winning
How to trigger insurance coverage in commercial litigation
By Susan Schellinger
Davis & Kuelthau
Quite simply, successful litigation
from the plaintiffs 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 financial
investment 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
defendants insurance coverage can
be triggered to maximize recovery.
As such, it is critical to know and
understand the types of insurance
policies 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 complaints
allegations will initially dictate
whether or not there is coverage.
Coverage is easily triggered in the
typical negligence case that alleges
personal 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
8
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
policyholders own work and damage
to its own product. Thus, if there is any
damage, regardless of how minor, to
property other than the defendants
product, it should be articulated
in the complaint. For example, in

the manufacturing context, did a
suppliers product not only fail to
meet specifications, but also, did your
business incorporate the suppliers
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 suppliers part?
In the construction context, its
important to identify all damages
caused by defective construction or
defective construction components.
A P R I L 2 01 6
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 a
complete loss of use, or even a partial
loss of use, is often overlooked.
For example, if a suppliers 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 generalliability 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 property
damage 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 moisture
damage 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 than
one policy limit.
In addition to commercial generalliability 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 defendants business and
industry. All these types of potential
coverage should be considered and
form policies should be consulted to
identify the typical coverage grants
and the typical exclusions in order to
guide the plaintiffs allegations.
Knowing how to trigger coverage
is knowing how to ensure a win in
commercial litigation.
A reputation for success,

a tradition of results
Business Lawyers & Litigators since 1937
Our Clients Say it All For Us
At every step, KMKs attorneys were
there for us with their full energy,
good judgement and expertise.
Working with KMK over the past

several years has proven to be a
profitable decision for our organization.
They have always exceeded our

expectations and we continue to
recommend them to others.
www.kmksc.com
Barnabas Business Center 4650 N. Port Washington Road Milwaukee, WI 53212-1059
Telephone 414.962.5110 Facsimile 414.962.8725 Email kmksc@kmksc.com
A P R I L 2 01 6
TO CATCH A THIEF
Having the right experts in place can minimize damage
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 clients banker
and insurance agent be called?
10
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
A P R I L 2 01 6
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.
A P R I L 2 01 6
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
par@berogroup.com.
thinkstock
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 Certified
Fraud Examiner who has expertise in
investigating and litigating whitecollar 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 clients
insurance carrier. Failing to notify an
insurance carrier in a timely manner
or understand the nuances of policy
provisions could significantly impair
your clients ability to recover
damages and limit his or her ability
to pursue civil remedies. Discuss
the 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 clients insurance carrier
has been contacted, the clients bank
should be notified of the suspected
fraud. Failing to promptly notify the
bank of suspect transactions could
limit your clients ability both to
recover lost money and to hedge
against future losses.
Whats 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, its essential to
get in touch with law-enforcement
officials, but this should be done
only at the appropriate time.
11
Navigating new
rules for electronic
information retention
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12
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Amendments to Federal Rules of Civil Procedure should aid counsel in

helping clients limit preservation costs, exposure to discovery sanctions
By Ryan M. Billings
Kohner, Mann & Kailas
Ryan M. Billings
is an attorney
at Milwaukeebased Kohner,
Mann & Kailas.
He concentrates
on business
and corporate
litigation,
with a focus
on complex
litigation,
including
effective
management
of electronic
discovery.
A P R I L 2 01 6
Anyone who is involved

in or reasonably expects
litigation has a duty to
preserve 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, dismissed
cases 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 overpreserve 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 Rule
37(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, goodfaith operation of an electronic
system. This provided
little practical guidance to
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.
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 partys
failure 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 that
the 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.
13
The carrot
or the
stick?
Do rewards of voluntary disclosure of criminal violations in the

health care arena outweigh the potential costs?
There are no formal rules governing voluntary
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 from
simple 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?
Its true that some disclosures of
False Claims Act or other criminal
law violations are probably not
be 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 ones 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
14
disclosures from a criminal perspective. One must

therefore tread lightly when making the decision to
voluntarily disclose criminal-law violations
violations of criminal law.
In 2003, the U.S. Department
of Justices Corporate Fraud
Task Force issued Principles of
Federal Prosecution of Business
Organizations to various heads of
Department of Justice components
and individual U.S. Attorneys 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 corporations timely
and voluntary disclosure of wrongdoing
and its willingness to cooperate with
the governments 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 corporations timely and
voluntary disclosure in evaluating
the adequacy of the corporations
compliance program and its
managements commitment to the
compliance program.
Voluntary disclosure has even been

dealt with in matters concerning
federal sentencing. Its true that in
the landmark case of United States
v. 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 to
have 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.
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15
How to succeed against

the odds (and experts)
Halloin Murdock case proves you dont always get what you pay for
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 Murdocks 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.
Whats more, it went on to defeat an
opposing expert using a scheduling
analysts 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
16
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 constructiondelay 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 Methods more rigorous
coding requirements is now possible
for 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 scheduling
analyst 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 649page 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 Engelharts
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 Engelharts 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 had
essentially 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.
A P R I L 2 01 6
THE WITNESS OUTLINE

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.
Its 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,
its often better to rely on a wellresearched, 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 dont try cases
regularly, 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. Its 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 whats 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 youre
venturing in the wrong direction, or
going 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 theres the matter of voice.
Actors and actresses spend a lifetime
learning how to read a script and
sound natural. You havent. You have
a different voice for reading, and
A P R I L 2 01 6
Success is borne by preparation
most people can tell and dont 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.
Were lawyers, and therefore we write
too much.
If your questions are so long that
you need to write them out, theyre
too long. And if youve 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. Its a simple bullet-point-style
outline. Properly done, its more of a
checklist than an outline.
The goal is to give you both
inspiration and guidance. Whether
youre staring down a witness
across the deposition table, reading
an exhibit, or watching a jurys
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 should
be 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 used
by 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 frazzled
you 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.
17
What dIStINguISheS
The Vander Bloemen Group?

The VanderBloemen Groups team of CPAs 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 opinions
in a clear, concise and compelling fashion. Its substantial experience and creativity has also repeatedly assisted me in resolving difficult
accounting 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 of
complex 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 Group
again 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 opinions
and 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.
262.574.0374
www.vanderbloemengroup.com
215 W. North St. WaukeSha, WI 53188
WISCONSIN LAW JOURNAL
2015 UP AND COMING LAWYERS
Davis & Kuelthau, S.C.

111 E. Kilbourn Ave., Suite 1400
Milwaukee, WI 53202
Phone: 414-225-1410
Email: dambrose@dkattorneys.com
Website: www.dkattorneys.com
Practice areas: Litigation, construction litigation, environmental law
RICHARD F. BERO, CPA/ABV, CVA, CLP MANAGING DIRECTOR
The BERO Group

N16 W23217 Stone Ridge Drive, Suite 250
Waukesha, WI 53188
Phone: 262-522-7922
Email: rbero@berogroup.com
Website: www.berogroup.com
Practice areas: Intellectual property litigation, commercial litigation,
forensic accounting, valuation
RONALD A. BERO JR., CPA, ABV, CFF, CVA,

MAFF - DIRECTOR
The BERO Group

N16 W23217 Stone Ridge Drive, Suite 250
Waukesha, WI 53188
Phone: 262-522-7924
Email: ron.bero@berogroup.com
MELINDA A. BIALZIK
JAMES E. BRAZA

Milwaukee, WI 53202
Phone: 414-225-1421
Email: jbraza@dkattorneys.com
Practice areas: Construction transactions and litigation, insurance coverage
disputes, arbitration and other alternative dispute resolution proceedings
THOMAS E. BROWN
Gimbel, Reilly, Guerin, Brown, LLP

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: tbrown@grgblaw.com
Website: www.grgblaw.com
Practice areas: White-collar federal and state defense, products, liability,
criminal law, complex civil litigation
MARILYN M. CARROLL
Kohner, Mann & Kailas, S.C.

4650 N. Port Washington Road
Milwaukee, WI 53212
Phone: 414-962-5110
Fax: 414-962-8725
Email: mbialzik@kmksc.com
Website: www.kmksc.com
Practice areas: Business and corporate litigation, dispute resolution,
appellate practice, trusts and estate law
A P R I L 2 01 6

4650 N. Port Washington Road
Milwaukee, WI 53212
Phone: 414-962-5110
Fax: 414-962-8725
Email: rbillings@kmksc.com
Practice areas: Business and corporate litigation and dispute resolution,
appellate practice, business and corporate law, intellectual property law,
international law
DIRECTORY
RYAN M. BILLINGS
DILLON J. AMBROSE

300 North Corporate Dr., Suite 150
Brookfield, WI 53045
Phone: 262-792-2412
Email: mcarroll@dkattorneys.com
Practice areas: Litigation, health care
19
DIRECTORY
BARRY S. COHEN
WILLIAM H. FRAZIER
Melowski & Associates, LLC

524 South Pier Dr.
Sheboygan, WI 53081
Phone: 920-299-5074
Fax: 920-395-2443
Email: barry@melowskilaw.com
Website: www.melowskilaw.com
Practice area: Drunk driving defense

Milwaukee, WI 53202
Phone: 414-225-1408
Email: wfrazier@dkattorneys.com
Practice areas: Litigation, corporate, trusts, estates and succession planning
FRANKLYN M. GIMBEL
SHERRY D. COLEY

318 S. Washington St., Suite 300
Green Bay, WI 54301
Phone: 920-431-2239
Email: scoley@dkattorneys.com
Practice areas: Commercial litigation, litigation

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: fgimbel@grgblaw.com
Practice areas: Criminal law, complex civil litigation, employment law
RAYMOND M. DALLOSTO
JOSHUA L. GIMBEL

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: dallosto@grgblaw.com
Practice areas: Criminal law, white-collar defense, civil litigation, licensing,
employment, civil rights, impaired driver defense

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: jlgimbel@grgblaw.com
Practice areas: Litigation, local government, real estate, distressed real
estate, land use, retail and distribution services
NICHOLAS R. DIUILIO
MARJORIE MITCHELL GREENE

Milwaukee, WI 53202
Phone: 414-225-1423
Email: ndiulio@dkattorneys.com
Practice areas: Commercial litigation

Milwaukee, WI 53202
Phone: 414-225-1435
Email: mgreene@dkattorneys.com
Practice areas: Litigation, corporate, trusts, estates and succession planning
ALEC DOBSON

Phone: 262-792-2413
Email: adobson@dkattorneys.com
Practice areas: Litigation, health care
20
A P R I L 2 01 6

4650 N. Port Washington Rd.
Milwaukee, WI 53212
Phone: 414-962-5110
Fax: 414-962-8725
Email: rgegios@kmksc.com
Practice areas: Business and corporate litigation and dispute resolution,
appellate practice, antitrust and trade regulation, insurance law, business and
corporate law, securities, international law
CLAIRE E. HARTLEY

Milwaukee, WI 53202
Phone: 414-225-1412
Email: chartley@dkattorneys.com
Practice areas: Commercial litigation, employment litigation, litigation
DIRECTORY
ROBERT L. GEGIOS
JOHN W. HEIN
D. MICHAEL GUERIN

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: dmguerin@grgblaw.com
Practice areas: Personal injury, criminal law, civil litigation

Milwaukee, WI 53202
Phone: 414-225-1418
Email: jhein@dkattorneys.com
Practice areas: Commercial litigation, real estate
AARON E. HALL

Milwaukee, WI 53202
Phone: 414-225-1411
Email: ahall@dkattorneys.com
Practice areas: Construction, commercial litigation,
insurance coverage disputes
JOHNATHON E. HILDENDORF
The VanderBloemen Group, LLC

215 W. North St.
Waukesha, WI 53188
Phone: 262-574-0374
Fax: 262-574-0369
Email: jeh@constcpa.com
Website: www.vanderbloemengroup.com
Practice area: CPA
SCOTT HALLOIN
Halloin & Murdock, S.C.

839 N. Jefferson St., Suite 503
Milwaukee, WI 53202
Phone: 414-732-2424
Email: shalloin@halloinmurdock.com
Website: www.halloinmurdock.com
Practice areas: Construction litigation, real estate litigation, insurance
claims and recovery, business litigation
A P R I L 2 01 6
JAMES IRVINE

Milwaukee, WI 53202
Phone: 414-732-2424
Email: jirvine@halloinmurdock.com
Practice areas: Business litigation, construction litigation, real estate
litigation, insurance claims and recovery
21
DIRECTORY
WILLIAM A. JENNARO

Milwaukee, WI 53202
Phone: 414-225-1426
Email: wjennaro@dkattorneys.com
Practice areas: Litigation, mediation and arbitration, trusts and estates,
succession planning
KATHRYN A. KEPPEL

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: kkeppel@grgblaw.com
Practice areas: Civil litigation, appellate practice, products liability
PATRICK J. KNIGHT

Green Bay, WI 54301
Phone: 920-431-2221
Email: fkowalski@dkattorneys.com
Practice areas: Construction transaction and litigation, commercial and
residential real estate, insurance coverage disputes
JOSEPH R. LAUR, CPA, CVA DIRECTOR
The BERO Group

N16 W23217 Stone Ridge Dr., Suite 250
Waukesha, WI 53188
Phone: 262-522-7928
Email: jlaur@berogroup.com

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: pknight@grgblaw.com
Practice areas: State and federal regulatory investigations, business
litigation, civil litigation, criminal litigation, white-collar health care, whitecollar criminal defense, health care fraud and abuse
EMILY I. LONEGRAN
STEPHEN L. KNOWLES
RUSSELL S. LONG

Milwaukee, WI 53202
Phone: 414-225-1422
Email: sknowles@dkattorneys.com
Practice areas: Litigation, labor and employment, non-profit organizations
22
FRANK W. KOWALKOWSKI

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: elonegran@grgblaw.com
Practice areas: Personal injury, civil litigation, commercial litigation, criminal
and white-collar defense

Milwaukee, WI 53202
Phone: 414-225-1456
Email: rlong@dkattorneys.com
Practice areas: Commercial finance, commercial litigation, litigation
A P R I L 2 01 6

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: jluczak@grgblaw.com
Practice areas: Civil Litigation, business litigation, municipal law, licensing,
criminal law, insurance coverage litigation, professional licensing and
disciplinary defense, appeals
STEVEN C. MCGRAVER

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: smcgraver@grgblaw.com
Practice areas: White-collar criminal investigations, municipal law,
employment law, criminal defense, civil litigation, licensing
DIRECTORY
JASON D. LUCZAK
LAURIE E. MEYER
KEVIN J. LYONS

Milwaukee, WI 53202
Phone: 414-225-1402
Email: klyons@dkattorneys.com
Practice areas: Construction litigation, environmental law, mediation,
arbitration

Milwaukee, WI 53202
Phone: 414-225-1419
Email: laurie.meyer@dkattorneys.com
Practice areas: Employment litigation, labor and employment, litigation
DENNIS MELOWSKI

524 South Pier Dr.
Sheboygan, WI 53081
Phone: 920-299-5074
Fax: 920-395-2443
Email: dennis@melowskilaw.com
LIZ MAJERUS

524 South Pier Dr.
Sheboygan, WI 53081
Phone: 920-299-5074
Fax: 920-395-2443
Email: liz@melowskilaw.com
ELIZABETH K. MILES
MATTHEW R. MCCLEAN

Milwaukee, WI 53202
Phone: 414-225-1420
Email: mmcclean@dkattorneys.com
Practice areas: Construction and commercial litigation, insurance coverage
disputes, environmental law

Milwaukee, WI 53202
Phone: 414-225-1491
Email: emiles@dkattorneys.com
Practice areas: Litigation, construction litigation and environmental law
VICTORIA L. MORAN

Phone: 262-792-2408
Email: vmoran@dkattorneys.com
Practice areas: Litigation, health care, real estate
A P R I L 2 01 6
23
DIRECTORY
WILLIAM J. MULLIGAN

Milwaukee, WI 53202
Phone: 414-225-1429
Email: wmulligan@dkattorneys.com
Practice areas: Construction, commercial finance
ANDREA MURDOCK

Milwaukee, WI 53202
Phone: 414-732-2424
Email: andrea.murdock@halloinmurdock.com
Practice areas: Business litigation, real estate litigation, insurance claims
and recovery, construction litigation
BRIAN J. PFEIL

Milwaukee, WI 53202
Phone: 414-225-1414
Email: bpfeil@dkattorneys.com
Practice areas: Litigation, construction, commercial finance
DENIS J. REGAN

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: dregan@grgblaw.com
Practice areas: Business, real estate, estate planning
RICHARD E. REILLY
ANTHONY MURDOCK

Milwaukee, WI 53202
Phone: 414-732-2424
Email: amurdock@halloinmurdock.com
Practice areas: Insurance claims and recovery, construction litigation, real
estate litigation, business litigation
MATTHEW MURRAY

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: rreilly@grgblaw.com
Practice areas: Business Law, family law, complex civil litigation
PAUL RODRIGUES, CFE, CPA, CFF, CGMA,

MST - DIRECTOR

524 South Pier Dr.
Sheboygan, WI 53081
Phone: 920-299-5074
Fax: 920-395-2443
Email: matthew@melowskilaw.com
The BERO Group

N16 W23217 Stone Ridge Dr., Suite 250
Waukesha, WI 53188
Phone: 262-522-7927
Email: par@berogroup.com
KATHY L. NUSSLOCK

Milwaukee, WI 53202
Phone: 414-225-1447
Email: knusslock@dkattorneys.com
Practice areas: Commercial litigation, employment litigation, litigation
24
A P R I L 2 01 6
MICHAEL K. SCOTT
CHARLES DAVID SCHMIDT
SHEILA SHADMAN

Milwaukee, WI 53202
Phone: 414-225-1413
Email: hrojas@dkattorneys.com
Practice areas: Litigation, immigration, employee benefits, labor and
employment

Milwaukee, WI 53202
Phone: 414-732-2424
Email: cschmidt@halloinmurdock.com
Practice areas: Insurance claims and recovery, construction litigation, real
estate litigation, business litigation

Milwaukee, WI 53202
Phone: 414-225-1427
Email: mscott@dkattorneys.com
Practice areas: Commercial litigation, insurance coverage disputes,
litigation
DIRECTORY
HUGO P. ROJAS

Milwaukee, WI 53202
Phone: 414-732-2424
Email: sshadman@halloinmurdock.com
Practice areas: Business litigation, real estate litigation, insurance claims
and recovery, construction litigation
SARVAN SINGH JR.
SUSAN G. SCHELLINGER

Milwaukee, WI 53202
Phone: 414-225-1492
Email: sschellinger@dkattorneys.com
Practice areas: Construction and commercial litigation, litigation, insurance
coverage disputes, arbitration and other alternative dispute resolution
proceeding

524 South Pier Dr.
Sheboygan, WI 53081
Phone: 920-299-5074
Fax: 920-395-2443
Email: sarvan@melowskilaw.com
ANTHONY J. STEFFEK
THOMAS L. SCHOBER

Green Bay, WI 54301
Phone: 920-431-2229
Email: tschober@dkattorneys.com
Practice areas: Construction litigation, insurance coverage disputes,
litigation

Green Bay, WI 54301
Phone: 920-431-2237
Email: asteffek@dkattorneys.com
Practice areas: Litigation, labor and employment
MAX T. STEPHENSON

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: mstephenson@grgblaw.com
Practice areas: Family law
A P R I L 2 01 6
25
DIRECTORY
CHRISTOPHER L. STROHBEHN

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: cstrohbehn@grgblaw.com
Practice areas: Personal injury, commercial litigation, civil litigation, criminal
and white-collar defense, insurance coverage litigation
STEPHEN C. VANDERBLOEMEN
215 W. North St.
Waukesha, WI 53188
Phone: 262-574-0374
Fax: 262-574-0369
Email: scv@constcpa.com
Practice area: CPA
ERIN M. STROHBEHN

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: estrohbehn@grgblaw.com
Practice areas: Civil litigation, personal injury, employment law
JOHN P. VANDERBLOEMEN
ARTHUR K. THEXTON

Milwaukee, WI 53202
Phone: 414-271-1440
Fax: 414-271-7680
Email: athexton@grgblaw.com
Practice areas: State and federal regulatory investigations, teaching and
consulting 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
26

215 W. North St.
Waukesha, WI 53188
Phone: 262-574-0374
Fax: 262-574-0369
Email: jpv@constcpa.com
Practice area: CPA
ZACH S. WHITNEY

4650 N. Port Washington Rd.
Milwaukee, WI 53212
Phone: 414-962-5110
Fax: 414-962-8725
Email: zwhitney@kmksc.com
Practice areas: commercial litigation, commercial law, appellate practice
A P R I L 2 01 6
Theres Only
One Best
Wisconsins most successful drunk
driving defense firm
524 S Pier Dr
Sheboygan, WI 53081
(920) 208-3800
www.melowskilaw.com

2016 Milwaukee Successful Litigation

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2016 Milwaukee Successful Litigation

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April 2016

When hurdles cross your path

More information, visit www.dkattorneys.com

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Rethinking your approach to

The last two drunkendriving cases I have taken to

on field sobriety tests, and

evidence is beyond reproach.

charge. For example, jurors expect

stumbled upon exiting his truck.

When your case requires clear,

Experienced. Efficient. Effective.

Intellectual Property Litigation

considerably stunt the remainder of

offer the jury direct evidence of

used to test their own blood. In my

Think less of the traditional framework of

occurrence. Thus, plaintiffs should

in the complaint. For example, in

Did a leaky roof or windows cause

an event that takes place without

Finally, coverage under a

A reputation for success,

Working with KMK over the past

They have always exceeded our

The answer to all these questions

proceed. Terminating the suspect

Once fraudulent activity is suspected, the

Paul Rodrigues is a director at The

protections when law enforcement

potentially obtain a confession

Amendments to Federal Rules of Civil Procedure should aid counsel in

Anyone who is involved

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

court may not impose the most

Do rewards of voluntary disclosure of criminal violations in the

disclosures from a criminal perspective. One must

Voluntary disclosure has even been

How to succeed against

governed by objective standards. The

discrete data points. It is believed

THE WITNESS OUTLINE

Success is borne by preparation

most people can tell and dont like it.

The right-hand side of the witness

The Vander Bloemen Group?

WISCONSIN LAW JOURNAL

2015 UP AND COMING LAWYERS

Davis & Kuelthau, S.C.

RICHARD F. BERO, CPA/ABV, CVA, CLP MANAGING DIRECTOR

The BERO Group

RONALD A. BERO JR., CPA, ABV, CFF, CVA,

The BERO Group

Davis & Kuelthau, S.C.

Gimbel, Reilly, Guerin, Brown, LLP

Kohner, Mann & Kailas, S.C.