May 1 of each year is designated by the American Bar Association as Law Day. This year Law Day activities and opportunities have a focus on the Magna Carta. Bonus points to you if you can tell me what year it was written.
If you’d like to learn more about the Magna Carta, or need to find a way to kill about thirty minutes while eating your lunch, visit the ABA Law Day 2015. There’s an informational video and reading materials too.
Enjoy your Friday!
Johanna R. Kirk
On May 8, 2015 I will be presenting at the Wisconsin Bar Leaders Conference. My session topic is “Titanium Hips with Smart Phone Holsters – The Ethical Implications of Generational Differences. ” The session explores an area that interests me a LOT – generational differences. In the past few years I have become addicted to articles, stories, research, and discussions about workplace generational differences and the impact they have on co-workers, professional peers, and customers. For lawyers, that means understanding different communication styles and expectations between in-office lawyers and staff, outside lawyers who are working on the same case/claim/matter, judges, and clients.
Even if you aren’t a lawyer, you might be interested in this article I found on Workplacedesign.com. “Workplace Design Implications of Emergent Worker Attitudes” is a great article about how generational differences are impacting the relationships between co-workers and as a result, the physical workplace. The article addresses four key areas of changes with the first being, “There is a shift in the nature of the social contract between “worker” and “employer”, what Dan Pink has called “free agents” and not employees.” The second is a move from hierarchical management to collaborative work models. These fundamental shifts in how people approach their work is impacting the space they work in as well.
“$1200 chairs and carpet refresh every 5 years are a thing of the past.” says the article. Desks, offices, cubicles, file cabinets, and personal assistants, may soon be a thing of the past. I know that in my mere nine years of practicing law the approach towards the physical space of law firms has changed dramatically. Take my office for example. I do not have a “file storage room” or a “library.” The only “legal” book in my office is a Black’s Law Dictionary that my husband bought me fifteen years ago! (However, if you’re looking for a copy of Anna Karenina, Dr. Zhivago, Sherlock Holmes, Uncle Tom’s Cabin, Moby Dick, or other classics, call me. Chances are I’ve got it here in my office.)
The field of law is desperately clinging to traditional titles such as “partner” and “associate” and “staff” assuming there is an unstated but understood status that comes with those titles. Likewise, there are firms that hold tightly to the traditional expectations of what a law firm should look like. You’ve seen them on television and in the movies – those offices with wood paneled walls, rows and rows of those funky yellow books with the red stripes, the “conference room” and “corner offices” where partners have leather couches for themselves. For decades law has been practiced in offices that equate opulence with success and competency. The fancier an office looked to clients and other attorneys, the better the law firm must be, right?
If the linked article and other sources are accurate, you should be seeing a shift in that thinking.
Johanna R. Kirk – Kirk Law Office, L.L.C. 1418 Tower Ave Suite #6; Superior, WI 54880 (715) 718-2424
Winter is nearly over, so the time has come to do some spring cleaning. For me, that means an updated website. This post is a test to see whether things are working properly and sharing properly. Thanks for your patience!
In working 
with business owners I have frequently faced a pretty regular set of questions about how hiring decisions are made:
“Can I consider information I found on Facebook?”
“Can I do a background check?”
“Can I do a credit check?”
“That online site said the applicant was once arrested for (insert any random offense here). Now I don’t want to hire that person. What do I do?”
A recent article published by the State Bar of Wisconsin, “How to Conduct Legally Compliant Job Applicant and Employee Background Checks in Wisconsin” provides a good starting point for any employer considering checking into applicants or current employees. The author, Scott Paler, is an attorney in Madison who gave some simple tips to employers.
“The types of background checks that employers perform vary. However, the most common assortment includes: (1) some form of criminal history check; (2) verification of prior employment; and (3) verification of education. Some employers also seek driving record information, credit history information, civil lawsuit information, and substantive reference information. In general, the type of background checks ordered by employers should take into account the nature of the company and the job. For example, a driving record check should only be ordered if a certain applicant will likely drive as part of his job. ”
Attorney Paler goes further to explain the process for getting credit information from third parties. That type of check requires notice and consent from the applicant/employee. If the employer finds information that may lead to non-hiring or adverse employment action, there is a three-step process that must be followed. The first step is notice to the applicant and employee with a copy of the report and notice of the employee’s rights. The second step is waiting a reasonable amount of time for to allow the employee to identify misinformation (a good rule of thumb is five days). The third step is a very detailed and specific “adverse action” letter to the applicant or employee.
When considering criminal background history employers are not permitted to just deny an applicant a job or fire an employee because of what is found. ” Wisconsin is one of the country’s most restrictive states as to employers’ use of criminal history information. In Wisconsin, employers may only consider criminal convictions that are “substantially related” to the job in question. Further, an employer may not consider arrest records or criminal charges unless the case remains pending and the underlying charge is “substantially related” to the job.”
If an employer fails to honor the process or restrictions regarding background checks it can face civil lawsuits by applicants or employees and administrative government claims for discrimination or violation of civil rights. These legal proceedings could award an applicant or employee reinstatement, back wages, and possibly punitive damages or fines. The bottom line is that it is important for business owners to do this right because the hiring process only happens once. There is no “do-over” or “let me make that right for you” afterward. If you violate the law, you’ve violated the law. Period.
If you’d like to read the full article about background checks, it can be found here. If you have questions about what information you have a right to ask for, consider, or find without the applicant knowing, call me. I’ll be happy to talk you through the different types of background checks and whether and how information can be used in the hiring decision.
Johanna R Kirk
Kirk Law Office, L.L.C. Superior, WI 715-718-2424
It’s been a few silly posts for me and this is likely to be the last one. The crappy cases about bat guano and cow manure and when insurance companies are obligated to pay for damage to structures or pollution of water supplies. The Wisconsin Supreme Court has ruled on the human septage and cow manure pollution cases.
Case Number One: Preisler v. General Casualty. Let me catch you up to speed…
Prieslers owned a dairy farm with a well that supplied their water. Across the road was the Kuettel farm. Kuettels also operated a septic business that emptied septic tanks, drain traps, etc. Being neighborly, the two families talked about using the septage on the Priesler’s fields as fertilizer. The DNR approved the use of human waste as fertilizer. Kuettels fertilized the Prieslers’ fields for several years. In 2008 Priesler cattle started dying at an alarming rate. Milk production started dropping off. The Prieslers’ well water was tested and it had abnormally high nitrate concentrations. A new well was dug and things went back to normal. The parties generally agreed that something the Kuettels spread or did contaminated the well.
The Preislers sued the Kuettels and their businesses and insurance companies were eventually added too. The insurance companies filed a motion to get out of the case claiming the commercial general liability policies excluded coverage for harm or damage arising out of the distribution of “pollutants.” “Pollutants” is defined by the policies to include “waste.” “Waste” includes materials to be recycled, reconditioned or reclaimed.
The local county court agreed with insurance companies. The Court of Appeals agreed with the insurance companies. The Courts generally stated that no reasonable insured (septic business owner) would expect an insurance company to pay for well water contamination. The Supreme Court agreed, “we conclude that the insureds’ claims fall within the unambiguous terms of the pollution
exclusion clauses.” (Interestingly, it took 28 pages of writing to get to that conclusion.)
“We conclude that a reasonable insured would understand
that decomposing septage is a “contaminant” and therefore, a
“pollutant” as defined in the policies when it has decomposed
and seeps into a water supply. Accordingly, we affirm the
decision of the court of appeals, which granted summary judgment
upon its conclusion that the pollution exclusion clause precluded coverage for harm resulting from the Preislers’ water
supply’s contamination.”
The Supreme Court’s Opinion in Preisler is available on the Wisconsin Courts’ Website
Case Number Two. Wilson Mutual Insurance Co. v. Falk, was decided by the Supreme Court on the same day. Wilson was slightly different from Priesler in that the “pollutant” was cow manure, not human septage. The Falks were sued after their cow manure polluted neighbors’ water supplies. Their insurance company argued they didn’t have to pay the claims because cow manure is a “pollutant.” The local court agreed, but the Court of Appeals reversed concluding that a reasonable farmer considers cow manure “liquid gold” and not a pollutant. The Supreme Court disagreed and ordered that the insurance company does not have provide coverage for damage caused by cow manure.
“We hold that the pollution exclusion clause in Wilson
Mutual’s General Farm Coverage Liability policy issued to the
Falks unambiguously excludes coverage for well contamination
caused by the seepage of cow manure. First, we conclude that
cow manure falls unambiguously within the policy’s definition of
“pollutants” when it enters a well. Second, we conclude the
Farm Chemicals Limited Liability Endorsement likewise excludes
coverage for “physical injury to property” resulting from
pollutants. Finally, we conclude that the “Damage to Property
of Others” clause under the incidental coverages section
provides incidental coverage up to $500 for each unique well
that has allegedly been contaminated by the Falks’ manure, and
Wilson Mutual has a duty to defend. Accordingly, the decision
of the court of appeals is reversed and we remand to the circuit
court for further proceedings consistent with our holding.”
You can find the Wilson opinion on the Wisconsin Courts Website.
I like to think about the practical implications of cases like these. I think what this generally means for farmers and septic business operators is that insurance policies will now offer additional, and likely expensive, riders. For an additional cost, you can make certain your shit is covered.
Johanna R Kirk, Kirk Law Office, LLC;
Superior, WI
Each year SuperLawyers uses a process to identify attorneys who excel in their areas of practice. They have a patented process that includes accepting nominations, conducting independent research and evaluating nominees. Only 5% of practicing lawyers are selected as a “Super Lawyer” and only 2.5% are selected as a “Rising Star.” Rising Stars are reserved for candidates who are under 40 years of age and meet specific criteria. To review my profile on the SuperLawyers page, click here or on the badge above. Thank you to all my clients who have placed their trust in me. Thank you to all the friends and family members who have supported me while I pursue my life’s calling. And a special thanks to my husband who has been exceptionally patient over the past year with my venture as a solo practitioner.
Johanna R. Kirk
I admit it. I love Halloween. The costumes, the jack-o-lanterns, the goofiness of it all. The candy doesn’t hurt much either.
So here’s an interesting article from the Huffington Post titled, “8 Super Weird Things You Didn’t Know About Halloween.”
It’s not legal stuff. It’s not a promotion for my firm. It’s just fun.
REMINDER – the Superior Business Improvement District is hosting trick-or-treating for BID businesses tomorrow from 1:00 pm – 4:00 pm. Bring your trickster to my office for a treat!
Johanna R. Kirk
As hunting season is upon us, here is a fun story about a man sentenced yesterday in connection with illegal use of game birds. A federal court judge fined a Chilton, WI man $5,000 and sentenced him to five years probation for selling snow goose sausage. The man was also ordered to turn over all his sausage making equipment and two shotguns. He further has had all hunting privileges revoked for five years. Learn more about the story from the Wisconsin Law Journal.
The U.S. Supreme Court added the case Ohio v. Clark (Case No. 13-1352) to its docket for this term. The case is expected to be argued in January or February. Here is why teachers, medical professionals and mandatory reporters should care…
Ohio v. Clark involves a man who is accused of abusing his girlfriend’s toddler son. The boy came to Head Start one day with an eye that appeared blood shot and blood stained. Teachers questioned him about what happened and he said he fell. One teacher asked, “Who did this to you?” and the boy identified the defendant. The teachers made a report to law enforcement pursuant to mandatory reporting requirements. After further investigation, prosecutors charged the man with multiple felonies involving abuse to mutliple children. During pre-trial matters the prosecution determined that the boy was not fit to testify because his story was inconsistent, and, well, let’s be honest, he was toddler. However, the prosecution called the teachers to testify about what the boy said.
Let me interject some evidence rules here. Typically, a person can only testify in court about things they personally know. A witness can talk about what she saw, smelled, heard, tasted, etc. A witness cannot testify about what someone told them they saw, felt, heard, tasted. This is called hearsay and is only allowed under certain circumstances (the person making the statement is dead, the person making the statement is a party to the case, and a few others.) This rule is particularly important in criminal cases because the Sixth Amendment to the U.S. Constitution provides a criminal accused the right to be confronted with the witnesses against him.
Back to Ohio v. Clark. At the criminal trial the teachers were permitted to testify about what the boy said. Clark was convicted and appealed. The Ohio appellate court reversed the conviction because using the teachers to provide the boy’s statements denied him his constitutional right to confront witnesses against him, specifically, the boy. The Ohio Supreme Court affirmed, recognizing that the teachers were acting as law enforcement at the time they questioned the boy, but because the questioning was about past events, not an ongoing emergency, the boy’s statements should not have been admitted.
I’m skipping over a lot of legal jargon regarding criminal procedure and rules of evidence that can be found in the Ohio Supreme Court opinion. 2012-0215-Ohio. The key concept that struck me with this case is the far-reaching implications for teachers, administrators, and other mandatory reporters. Wisconsin’s mandatory reporting statute includes a requirement that reports of abuse shall remain confidential (with 17 exceptions including law enforcement). Depending upon how the Supreme Court rules in the Ohio case, mandatory reporters may become regular witnesses in criminal cases.
Johanna R Kirk
Kirk Law Office, L.L.C.
