Blogs | State Bar of Wisconsin

Your Health Should Be a Priority in Law School

Megan A. Neubauer — 2026-04-03 00:00:00

From your first day of law school to your first year as an associate attorney, one thing remains incredibly valuable but largely scarce: time.

Search “time management in law school” on Google, and you will get countless results from law schools, blogs, and Reddit. But one thing these articles lack is the importance of picking your priorities in law school, and how your health needs to be one of them.

Not Enough Hours

Whether you’re a post-undergraduate starting law school or a more unconventional student coming from a career, law school is a shift. You spend your days reading, preparing for classes, involving yourself in the activities that will provide your future career as an attorney with a boost, and there simply aren’t enough hours in the day.

Megan Neubauer, Miami 2024, is an associate attorney with Konstantakis Law Office, Greenfield, where she focuses on probate, estate planning, and real estate.

When I first started law school, I remember the immense overwhelming wave coming over me, as I had homework and readings due before I even began my first semester. Coming from undergrad, where my schedule was mine to design and classwork was more busy work than anything, I found myself struggling with the transition to a law school schedule designed by my first-year advisors and classwork that never seemed to end.

Additionally, law school provides a unique space where many of your colleagues are now pushing you harder than you have been pushed before, by virtue of everyone with high career goals put in the same room to compete on a graded curve.

Finding My Top Three

To combat these feelings, I chose organization and time management. This isn’t shocking, given it’s what law schools preach as the best way to succeed.

However, my version of time management didn’t just include schoolwork as most people did. It included my “top three.” I started using this after I realized there simply would never been enough time in the day to get everything on my list done, whether that included completing a case analysis or throwing in a load of laundry.

In the beginning of my law school career, I would take a sticky note (or agenda) and write down my schoolwork goals for the day. This was helpful for organizational purposes: I managed deadlines, ensured I had the time to do my work, and time for questions.

Where I failed was realizing that between classes and trying so hard to complete my schoolwork list, I had no time for my other priorities. My “top three” were consistently

law schoolwork;
law schoolwork;
law schoolwork;

So, after one semester of law school scrambling to find balance with the workload, I decided I needed my “top three” to include more than just law school. I needed it to include what my priorities truly were.

When I sat down to think about this, I realized that my priorities fell along these lines:

Law school – I was here to pass, to succeed, to get a degree for my dream job, and to move myself closer to my dream life. That wasn’t going to change from my top three.

Social life – I moved to Miami for the school, but I was not going to let my three-year stint in such a social city go to waste in that time. I wanted time to experience all the city had to offer, from food to nightlife. Friends and time to enjoy life and smile outside the library was important to me.

Health – I was never the athletic person or health guru growing up, but in law school, I found it to be worth the time spent. Working out provided me with relief from the high levels of stress, and prioritizing little health choices, like making time to cook and to sleep a full eight hours, made all the difference in my day to day.

With my new priorities finalized, I needed to change my approach to my “top three.” That sticky note I was using changed to reflect my top three by giving myself rewards for completing my schoolwork. I remember reading a contracts case (my least favorite topic in law school) and rewarding myself with a gym trip. Or on Saturdays, I’d spend my morning at the coffee shop with friends working on schoolwork, to reward myself with a dinner out at a restaurant later that night.

‘My Brain was Functioning Faster’

Most importantly from these “top three” was the choice to prioritize my health. Suddenly, I found myself happier each day, and more importantly, less sick, less often. I enjoyed my workouts, even if they were just a walk around the block with friends between research sessions at the library.

I also made the conscious decision to force myself to sleep the regular eight hours. In the beginning, this was hard. I struggled to cut myself off when I wasn’t “finished” with my work for the day. Soon, though, I learned that if I was going to go into class with only half the reading completed (it will happen to you, I promise!), it was better for me to at least have a solid eight hours behind me to act fast, than it was to half-read while half-asleep before the night of and the next day.

In prioritizing my health (and mostly, my sleep), I started seeing great benefits. My brain was functioning faster each day, I was quicker on my feet, and I was more adaptable than a lot of my sleep-deprived colleagues.

Habits Easily Continue After Graduation

While some of you may not be totally convinced by my changes and their effects, I give you this benefit that I certainly didn’t know I was preparing for in law school: balancing my health and workload in law school set me up with great habits that were easy to continue as a busy associate attorney.

Therefore, I implore you, whether you are a new law student or near the end of your law school journey, to revisit your priorities. Question if they are truly benefiting you. Those that may benefit you now may not benefit you in the long term.

Are there little changes you can make each day? What are your “top three”?

Above all, I encourage you to put health in your “top three,” as it was life changing for me – and can be for you, too.

Need Help? There's WisLAP

The Wisconsin Lawyers Assistance Program (WisLAP) offers confidential well-being support to the legal community, including law students. WisLAP services are free and confidential.

Contact WisLAP: Visit the WisLAP page on WisBar.org, call (800) 543-2625, or email callwislap@wisbar.org.

This article was originally published on the State Bar of Wisconsin’s Law Student Blog, Just the Facts. The State Bar offers a variety of resources to help law students connect with the legal profession, including finding mentors and clerkships. Find out more on Wisbar.org.

Important Lessons from the Back of the Courtroom

Dayna Erickson — 2026-03-26 00:00:00

Before law school, I would have called myself a professional observer.

I started working at my county’s district attorney’s office at the age of 16. I was thrust into a world I knew nothing about, so I found myself in the back of the courtroom often. I thought this would be the best way to learn how the criminal justice system works and everyone’s role within it.

It turned out I would learn so much more than that. At first, I noticed the procedure, the decorum, and how each party interacted with each other. However, beyond that, I started to notice how each attorney had their own style of litigating. Some were boisterous and attention-grabbing, while others were soft-spoken and measured. These differences showed me that there wasn’t one perfect way to be a lawyer, but rather it reflected purposeful choices about advocacy, professionalism, and staying authentic to yourself.

Then, the summer before I started law school, I interned at a private law firm. After working at the district attorney’s office for five years, the hustle and bustle of private practice was new to me.

Instead of being in the courtroom, I was in depositions, settlement conferences, and client meetings. These litigators weren’t always in the courtroom, but that didn’t mean their skills weren’t in constant use. I was fascinated with the “behind the scenes” work, that advocacy begins long before anyone steps into the courtroom.

I realized how preparing and strategizing were just as important as the actual argument. That the confidence I later saw was not only born from persuasive speaking but also from months of deliberate planning.

And finally, law school itself has given me the foundational skills I need make legal arguments.

Your Mentorship Is Essential to Law Students

However, it has been the mentors and attorneys I have met along the way that have truly taught me what it means to be a litigator. This is why mentorship and leadership in the legal community are so important. Without the opportunity to observe remarkable litigators, students are left the dark about what good advocacy looks like. Even a little guidance from practicing attorneys can make students feel a little less alone in the vast legal profession.

Dayna Erickson, Marquette 2026, is a law clerk and incoming associate with Sterling Law Offices, LLC, Milwaukee. She focuses on family law cases including divorces, paternity, and post-judgment.

Not only do I write this to tell other law students to seek opportunities where they can watch attorneys in practice, but also as a call to the attorneys out there wondering if their mentorship means anything. It does. The time you spend answering questions, offering guidance, or simply allowing students to observe your work has a lasting impact on our outlook of the profession.

On the flip side, mentoring the up-and-coming generation of litigators can be extremely rewarding. It offers a chance to reflect on your own path – what you learned, what was difficult, and what truly matters in practice. The stresses of everyday work can make it easy to lose sight of your purpose, and what drew you to practice law in the first place, but mentoring can be a reminder of that purpose.

Watching experienced litigators in action offers something no textbook or lecture can fully replicate: a living, breathing example of the law at work. We are taught how to think like a lawyer, but it won’t be until our first day in court that we truly understand what it takes.

Being mentored by an experienced litigator is the next best thing. This requires students that are willing to learn and litigators that are willing to teach.

A Shared Commitment

In my experience, the most meaningful growth happens when both sides show up with intention – students ready to observe and ask questions and attorneys open to sharing not just their successes, but the reasoning behind their decisions.

It is in this shared commitment to learning that ensures the next generation of lawyers are prepared to take on the profession that is the law. Now, only a couple of months away from graduation, you can find me sitting in the gallery watching and learning from the litigators that came before me.

This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.

8 Tips to Excel in Commercial Law Practice

James J. Wawrzyn — 2026-03-20 00:00:00

With experience comes lessons. Some of those lessons are learned because of stunning success, and others through epic failures.

This list represents takeaways to date in navigating a career in commercial law, both in private practice and in-house. They are offered in a spirit of hope that they contribute to stunning success stories and avoidance of epic failures.

James Wawrzyn, Marquette 2006, is a senior corporate attorney with Forest County Potawatomi, Milwaukee.

Be curious and keep learning. In a commercial setting, to be a valuable member of the team made up of lawyers and nonlawyers, it is a great benefit to learn more about the industries and potential issues that will impact the outcomes of a project. Just knowing the law is usually not enough in a commercial role. This will not be possible immediately, which organizations typically understand about new lawyers. The sooner a new lawyer can develop industry knowledge the better.

Always consider how your current skills can be a positive addition to the project. Do not fall into thinking that because you are the most junior member of the team that you are just an observer. Be on the lookout for how all your skills may be of assistance, be it fixing typos or making a deliverable more user-friendly.

Consider roles that best match your strengths and persevere to find them. There are seemingly countless roles in a commercial setting, from large publicly traded companies to small privately held companies found nearby and around the world. Take the time to do an inventory of your strengths and areas of interest, and chart a path to work your way into a role that will be a good fit.

Don’t forget that noncommercial roles, such as government or other areas of private practice, may be the best fit along the way. Frequently, one needs to prioritize competing factors related to satisfaction, time and money. The priority often changes with different life events. Find the right balance for you.

Work to develop collaborative relationships. The end product, be it a litigation result or a contract, requires a productive working relationship. Like in all other areas of life, developing solid relationships takes a degree of attention. Keep an eye out for how you can continually improve your interpersonal skills.

Learn about and be able to utilize risk strategically. Practicing in-house can be distinct from private practice and government roles because to excel a lawyer may need to be able to leverage risk, rather than just avoid it. Senior commercial lawyers work with business stakeholders to come up with strategies that strike the balance between opportunities and risks, and move forward and navigate the consequences. To advance to those senior roles, work to develop skills related to risk.

Master communication skills. Take on the burden of persuasion. If you can tell others are not understanding you, change your mode of communication rather than just throwing up your hands.

Seek out and take advantage of mentors. Valuable lessons are picked up from working with people that have more experience. Continually look to improve your skills by learning from those around you and being inquisitive. Positive role models are wonderful, but also strive to discern lessons on what not to do from those modeling a flawed approach.

Consider developing areas of expertise on your own initiative. Delving into a new area outside of your current area of expertise can open up more opportunities. Chances to focus on new areas may be presented to you along the way, but often the chance to find a role that is most fulfilling starts with someone taking their own initiative to develop expertise in an area.

Those are my tips to date. I wish young lawyers, lawyers new to commercial practice, and lawyers-to-be the best of luck in navigating their own path through a fulfilling career in commercial law.

This article was originally published on the State Bar of Wisconsin’s Business Law Blog. Visit the State Bar sections or the Business Law Section webpages to learn more about the benefits of section membership.

Mentors, Networking, and Next Steps: Opportunities for Law Students

2026-03-24 00:00:00

The connections you make in law school can help shape your confidence, your perspective, and even your first job. This season, you have several opportunities to meet attorneys, explore new areas of practice, and build relationships that can support you well beyond graduation.

Adventure Awaits: Rural Practice Development Program

Are you graduating in June and interesting in rural practice? Then consider applying for the State Bar’s Rural Practice Development Program. This initiative connects lawyers with rewarding opportunities in rural areas, offering mentorship, resources, and support as you begin your practice. It’s a chance to build your career and help strengthen access to justice where it’s needed most.

Meet the First Attorneys in the Rural Practice Development Program.

Scholarships Available: 45^th Annual Family Law Workshop

Scholarship applications are due by May 29, 2026.

Don’t miss the 45th Annual Family Law Workshop, Aug. 6-8, 2026, at Stone Harbor Resort in beautiful Sturgeon Bay, Door County, Wisconsin.

This premier Workshop offers in‑depth exploration of current issues shaping the family law field, along with a dedicated track designed specifically for newer practitioners. Scholarship opportunities are also available for law students interested in family law, making this an excellent chance to learn, connect, and gain exposure to the profession.

CLE sessions are scheduled for half days, leaving ample time to enjoy Door County’s attractions, network with fellow attendees, and engage with leading voices in family law.

Want a Mentor? Sign Up for the 2026 Ready. Set. Practice. Mentoring Program

The State Bar of Wisconsin Ready.Set.Practice. mentoring program is a voluntary program that matches new lawyers and law students with experienced mentors to assist with law practice management, effective client representation, and career development. If you are a new lawyer or student looking for guidance, this program is for you! Sign up forms will remain open. Sign up on WisBar.org.

Your State Bar Law Student Outreach Team

Not Monkey Business: The Scopes Trial Still Has Lessons to Teach

Emily S. Kelchen — 2026-03-19 00:00:00

Emily Kelchen took a moment to ponder the long-term impact of her own legal work during the 100th anniversary of the Scopes "Monkey" Trial in Dayton, Tennessee. Photos: Emily Kelchen.

I’m a sucker for historic courthouses. So, when I realized I lived within easy driving distance of Dayton, Tennessee, location of the Scopes “Monkey” Trial – and that 2025 was the 100th anniversary of the trial – I couldn’t wait to plan a visit.

The local community had events all year commemorating the centennial, but the highlight was to be a two-weekends-long festival on the courthouse lawn. I cleared my calendar and rewatched Inherit the Wind in anticipation.

The statues of William Jennings Bryan (left) and Clarence Darrow (right) face each other in front of the Rhea County Courthouse in Dayton, Tennessee.

In the Shadow of Giants

If all you have time to do is drive by the Rhea County courthouse, do it. Like many of the same era it is a living monument to civic virtue. Its stately red brick facade reminds people of the serious business of upholding the rule of law.

Plaques around the building tell you the courthouse is listed on the National Register of Historic Places and has been designated a National Historic Landmark by the National Park Service.

But you can tell the community sees it as something more. It’s a gathering place. An outdoor community center whose tree-shaded lawn looks like it has played host to as many band concerts and carnivals as it has political speeches.

Overlooking all of this are towering statues of both William Jennings Bryan and Clarence Darrow. Bryan’s was donated in 2005 by nearby Bryan College, which was founded in his honor in 1930. Darrow’s was erected in 2017 by the Freedom from Religion Foundation. They face each other, locked in an eternal argument.

The inside of the courthouse is meticulously restored.

Stepping Back in Time

Inside, the second-floor courtroom has been meticulously restored to match the way it looked a century ago. Chairs for spectators are crammed into every possible space, and microphone cords snake across the gleaming floor. (They have, thankfully, added air conditioning.)

If I did not have two preschoolers in tow, I would have loved to stay for a production of “Destiny in Dayton.” The play, which is performed in the courtroom, is part history lesson, part propaganda – reenacting key moments of the trial while painting the town in a gentler light than Inherit the Wind.

The courthouse basement is home to a newly refurbished museum that is chock full of artifacts from the trial and local historical memorabilia.

The official circuit court minutes are displayed alongside a press pass, sock monkey, and sheet music for “Darwin’s Monkey Trot.” There’s a small cafe table representing the drugstore where townspeople dreamt up their lawsuit.

In one display case is the textbook Tennessee science teachers were required to use at the time. It describes the theory of evolution and diagrams the evolution of mammals from protozoa. Whether substitute biology teacher John Scopes taught this or not, the requirement that teachers use this text means educators across the state were in an impossible position: banned by the Butler Act from teaching evolution, but forced to use a textbook that embraces it (in part to bolster its support of eugenics).

Taken as a whole, you get a sense that the people of Dayton are inviting you in on a secret. They admit the charges brought against Scopes were ginned up in order to put their town on the map. (Hey it worked! You’re in their courthouse basement 100 years later!) As they celebrate the spectacle, they are also proud of the positive impact the trial had on the entire country’s education system – suggesting the trial inspired schools across the country to formalize and improve their science classes.

On display in the museum is the book containing the minutes of the trial on July 10, 1925.

Breaking Character

A festive atmosphere prevailed the day I visited. There were numerous pamphleteers around and a giant sign on the courthouse wall urging you to “Read your Bible!,” but scolds were far outnumbered by churches and civic organizations handing out free hotdogs and encouraging my kids to enjoy the dinosaur themed (!) bounce house. There was also a tribe with some tipis set up (the Sequoyah Birthplace Museum is in nearby Vonore) and a farm hosting a petting zoo.

Without exception, the people were incredibly kind and welcoming. Eager to share their history and hospitality. Happy to prove their town hardly bears a passing resemblance to the close-minded backwater it was painted as by contemporary media and on the silver screen.

The people of Dayton have been telling their side of the story for 100 years. Letting us know they cooked up a test case. Inviting the world to their doorstep. Pushing back against mocking stereotypes.

It makes me wonder if people building modern day test cases have been to the Rhea County courthouse. Have they thought about how their story will be told? Considered the potential long-term impact of their case?

After all, “He that troubleth his own house shall inherit the wind.”

This article was originally published on the State Bar of Wisconsin’s Nonresident Lawyers Blog. Visit the State Bar Divisions page or the Nonresident Lawyers Division webpage to learn more about division membership.

Large Load, Bigger Questions: The Value of Integrated Resource Planning

Elizabeth A. Wheeler — 2026-03-20 00:00:00

Three years ago, you could attend an energy conference without hearing the words “large load.” Now, you can’t.

Issues related to large load are dominating the energy sphere as regulators, utilities, data center developers, and energy resource suppliers are all scrambling to navigate the need for significant new energy resources to meet this demand. The latest projections from Grid Strategies show that nationally, load is expected to grow by 5.7% per year over the next five years.

Meanwhile, the Wisconsin Public Service Commission (PSC) approved 11 projects totaling nearly 3,500 megawatts (MW) of new generation and storage to be sited in Wisconsin last year, and utility plans filed as part of the strategic energy assessment shows that this number could grow to over 7,250 MW of new generating capacity to be installed between 2026-30.^[1]

Elizabeth A. Wheeler, Pace University 2006, is senior counsel for Clean Grid Alliance, in Saint Paul, Minnesota.

Pre-existing Pain Points

Pre-data center growth, our electricity generation and transmission system was already facing pain points associated with increased renewable resources, electrification, aging infrastructure, frequent extreme weather events, and the effects of decades of lacking regional and inter-regional transmission planning.

Ratepayers have taken notice as the price tag for all these grid upgrades adds up. Users and suppliers have been frustrated with the slow approval and connection processes. And regulators have anxiously watched as extreme weather events have tested the system’s resource adequacy.

Midwest Responses

Several of Wisconsin’s fellow Midwestern states have responded to these challenges by adopting new or increased opportunities for an iterative, long-term planning process known as integrated resource planning (IRP), coupled with streamlined permitting for resources that comprise approved plans:

Illinois (2025 SB 25): Requires the Illinois Commerce Commission (ICC) to complete a statewide IRP by November 2026.

Indiana (2025 HEA 1007/P. L. 217): Provides an expedited pathway for the permitting of generating resources that are included in an “expedited generation resource plan” or “EGP” if the resource was approved by the Indiana Utilities Regulatory Commission (IURC) in response to new large load demand.

Michigan (2023 Public Act 231): Requires the Michigan PSC to update IRP planning parameters and plan filing requirements and creates new considerations that the PSC must review in its evaluation of the plan, including varying load forecast projections in five-year increments.

Missouri (2025 SB 4): Requires investor-owned utilities to file an integrated resource plan subject to the Missouri PSC’s review and approval. If a new generating resource is included in an approved IRP, it is subject to an expedited review process for its CPCN.

Iowa: While Iowa state law does not require utilities to file IRP, settlements in other cases in the past few years have led both investor-owned utilities in Iowa to conduct resource planning. The Iowa Utilities Commission recently published guidelines for utilities to continue this practice on a voluntary basis.

Wisconsin is now an island surrounded by states that are engaging in a more wholistic approach to meeting demand growth with reliable and cost-effective solutions through IRPs that are, in most states, vetted and approved through a contested process.

Integrated Resource Planning Offers a 20-year Vision

While the process and requirements can vary state to state, generally IRP offers modeling of a utility’s load forecast, and an evaluation of what resources are needed to meet the utility’s load. Instead of evaluating generating resources (and in some cases, transmission and distribution resources) on a case-by-case basis, the IRP lays out the utility’s planned portfolio for up to the next 20 years. IRPs are then typically filed with the state utilities commission.

A key component to IRP in most states is stakeholder involvement^[2] Utilities in states that conduct IRP frequently host stakeholder workshops while they are developing their plans and seek feedback from stakeholders on modeling assumptions and inputs. This often results in a utility creating several IRP options and allows the utility’s constituents (and regulators) to weigh in on the factors that are most important to them in designing an electricity system that meets their needs.

Significantly, this stakeholder process can engender buy-in from parties that may otherwise oppose specific proposals, because they have a whole-picture understanding of what role each resource is intended to play in the system and how much it is expected to cost consumers over time.

Stakeholder participation can provide more than buy-in, however. Stakeholders in IRP may have access to technical analysis, data, and information that is outside the scope of what the utility typically considers. For example, stakeholders may bring perspectives on pilot projects or programs run in other jurisdictions, may propose novel approaches to cost savings, or may bring expertise on new and emerging technologies that can present innovative solutions for meeting demand.

Wisconsin: Siloed Projects

While it is true that Wisconsin utilities engage in resource planning on their own, the utility’s modeling and planning is not scrutinized through a contested process or approved by our Public Service Commission. Nor is it vetted through a stakeholder process.

Instead, the Wisconsin Public Service Commission reviews resources on a project-by-project basis in siloed proceedings, even when other applications for resources for the same utility are being considered at the same time.

Conclusion

Integrated resource planning is not a panacea, but serves as an important planning tool to solve for many of the challenges facing our electricity system.

With routine filings (typically every 2-5 years) that look out up to 20 years, IRP is typically an iterative process that accommodates needed adjustments and can offer streamlined determinations of cost-effectiveness and need for generator construction acquisition across the system.

Given the many current unknowns about how the current challenges facing the electricity sector will affect energy affordability, reliability, and sustainability, it is not surprising that states are looking to increase participation in utility planning efforts.

Could it be time for Wisconsin to do the same?

This article was originally published on the State Bar of Wisconsin’s Public Utilities Blog. Visit the State Bar sections or the Public Utilities Section webpages to learn more about the benefits of section membership.

Endnotes

[1] See “Strategic Energy Assessment 2024-2030,” Table 2-3, New Additions and Transfers of Utility-Owned or Leased Generation Capacity by Wisconsin Electric Providers 2024 through 2030, pp. 26-29, Public Service Commission of Wisconsin, November 2024. ↩

[2] See Bruce Biewald, et al., “Best Practices in Integrated Resource Planning: A guide for planners developing the electricity resource mix of the future,” Lawrence Berkeley National Lab, November 2024. ↩

Supreme Court: WCA 'Appropriate Remedy' Prevents Class Action

Jay D. Jerde — 2026-03-09 00:00:00

March 4, 2026 – The Wisconsin Consumer Act (WCA) allowed the defendant to remedy the claim with the individual plaintiff, preventing a class action lawsuit, a 6-1 majority of the Wisconsin Supreme Court decided in Gudex v. Franklin Collection Service, Inc., 2026 WI 6.

Reversing the Milwaukee County Circuit Court, Justice Brian K. Hagedorn for the majority wrote, “when a customer brings a class action for damages under” Wis. Stat. section 426.110(4), Wis. Stat. section 426.110(4)(c) “requires an appropriate remedy be given or agreed to be given to the party bringing suit, not to the putative class.”

A concurrence written by Justice Rebecca Frank Dallet and joined by Chief Justice Jill J. Karofsky and Justice Janet C. Protasiewicz clarified that the statutory provision “is not a get-out-of-class-certification-free card.”

Based on the WCA’s stated purposes in section 421.102, Justice Susan M. Crawford dissented.

“Allowing a defendant to avoid a consumer class action for damages by ‘picking off’ the representative plaintiff defeats the class action mechanism under the WCA,” which “undermin[es] the WCA’s purpose of ‘protect[ing] customers from unfair, deceptive, false, misleading and unconscionable practices.’”

Confusion Followed by Litigation

Heather Gudex received a letter from Franklin Collection Service, Inc., which Gudex’s creditor hired to collect a debt.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

With warnings to “CONTACT YOUR ATTORNEY REGARDING OUR POTENTIAL REMEDIES, AND YOUR DEFENSES,” and that “no attorney has personally reviewed your account,” the letter “confused” Gudex.

She was afraid she was going to be sued, contacted a lawyer and “filed a putative class action for damages against Franklin.”

Her lawsuit sought class-wide statutory damages under the federal Fair Debt Collection Practices Act (FDCPA) and injunctive relief under the WCA, although she ultimately elected monetary damages.

As the WCA requires, Gudex sent Franklin a notice and demand for monetary damages.

Franklin responded with “an appropriate remedy” under Wis. Stat. section 426.110(4)(c) “of actual damages and the WCA’s maximum statutory penalty of $1,000.”

Franklin also promised that it would stop using the confusing language on its debt collection letters, backed by a “voluntary stipulation with Gudex.”

This remedy, Franklin believed, resolved the WCA case and ended the potential class action lawsuit.

Gudex rejected the offer and moved for class certification. Franklin countered that its offer was “an appropriate remedy” that ended the case.

The circuit court granted Gudex’s motion, concluding that the remedy had to “be appropriate to the whole class” to preserve the WCA’s “purpose of allowing class actions.”

Franklin appealed the class certification order. The Wisconsin Court of Appeals, District 1, affirmed the circuit court.

‘Window of Time to Remedy’

The WCA permits a “consumer affected by a violation” to bring a lawsuit both individually and for “all persons similarly situated.”

At least 30 days before a class action may begin, “any party must” both notify the alleged WCA violator and demand correction or remedy, the majority emphasized.

“Thus, we see right from the beginning a legislatively created window of time to remedy the injuries to a ‘party’ – a ‘customer affected by the violation’ who wishes to file a class action for damages – prior to and apart from class action proceedings,” the majority summarized.

The disputed statute, Wis. Stat. section 426.110(4)(c), says that “no action for damages may be maintained under this section if an appropriate remedy, which shall include actual damages and may include penalties, is given, or agreed to be given within a reasonable time to such party within 30 days after receipt of such notice.”

The initial language “no action for damages may be maintained” meant a class action for damages could not continue if the defendant gives or promises an “appropriate remedy,” the majority said.

The “30 days” term set a specific limitation for action based on the initial notification to the defendant, the majority continued.

“This makes sense since the party providing the notice must do so at least 30 days prior to commencing the litigation.”

For further clarification, the majority determined that “such party” refers to “‘any party’ … seeking to commence a lawsuit and who must send pre-litigation notice.”

In this case, Gudex is the party, Franklin the defendant. Gudex cannot maintain a class action, the majority held, “if Franklin gave or agreed to give an appropriate remedy” to Gudex – “and Gudex alone.”

These terms shouldn’t be confused with Wis. Stat. section 426.110(4)(d), which provides throughout the litigation another means to end a class action for damages, the majority explained.

The two statutes offer contrast. The latter’s use of “such customers” recognizes the class, compared with “such party” at issue here.

“The text does not contain an unrestrained endorsement of class actions,” the majority summarized.

“A better view of the statutory policy choice is that the legislature chose to incentivize making an affected customer whole as quickly as possible, while still preserving access to the class action lawsuit if the customer does not receive an appropriate remedy.”

Even with these limitations, a class action for injunctive relief may still proceed under Wis. Stat. Section 426.110(4)(e), both the majority and concurrence explained.

‘Procedurally Improper’

Franklin’s affirmative defense of an “appropriate remedy” doesn’t fit against a class certification motion, Justice Dallet’s concurrence explained.

It’s an attack on the merits, suitable for a motion to dismiss or summary judgment.

The circuit court must decide certification only on factors in Wis. Stat. section 803.08, the concurrence said. A plaintiff who receives a settlement may affect those factors, but not whether the claim is viable.

The circuit court here, the concurrence explained, should have ruled Franklin’s defense “procedurally improper” in a class certification hearing, but it didn’t do that.

“Under that unique circumstance, I agree with the majority’s decision to reverse the circuit court’s grant of class certification,” Justice Dallet concluded.

‘Guts the WCA’s Class Action Remedies’

The WCA states that it “shall be liberally construed and applied to promote their underlying purposes and policies,” Justice Crawford’s dissent begins.

Among those purposes, the WCA is meant “[t]o protect customers against unfair, deceptive, false, misleading and unconscionable practices by merchants,” and “[t]o coordinate” regulation of consumer credit consistent with policies underlying the federal Consumer Credit Protection Act.

The majority’s decision “conflicts with policies for class actions under FDCPA,” in which “an offer of individual relief to a representative plaintiff does not bar a class action.”

“The majority makes Wisconsin an outlier,” Justice Crawford noted, and it “violates [WCA’s] directive.”

“The purpose of the WCA is explicitly to provide protections for consumers,” providing relief “when it is inefficient and uneconomical to individually litigate claims,” Justice Crawford explained.

The ability “to obtain class-wide damages on claims” furthers that purpose, especially making recourse available “to unsophisticated consumers,” Justice Crawford said.

When a defendant can merely pay off the representative party – a “powerful, inexpensive, court-created tool for avoiding consumer class actions for damages,” Justice Crawford said, “it is hard to imagine how any consumer class action for damages will be maintained.”

“[B]y allowing defendants to evade class-wide liability under the WCA merely by paying damages to a single customer, the majority guts the WCA’s class action remedies.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.

Patient Privacy in the Age of AI Scribes: Notice, Consent, and Compliance

Stephane P. Fabus, Zachary T. Renier — 2026-03-06 00:00:00

Providers, patients and regulators alike are assessing and questioning the appropriate use of artificial intelligence (AI) technologies in the health care space. One such technology is ambient listening tools, which passively capture physician-patient clinical conversations in real time and generate draft clinical notes by transcribing and summarizing these encounters using trained AI algorithms.

So, can providers record their patient appointments? The short answer: generally, yes. And are they doing so? Likely. If not, with major electronic health record (EHR) vendors integrating ambient listening and AI documentation capabilities directly into their platforms, most providers probably will be in the near future.

Stephane P. Fabus, Marquette 2012, is a shareholder with Hall, Render, Killian, Heath & Lyman, PC in Milwaukee, where she focuses her practice on assisting health care clients in a wide range of areas.

Zachary T. Renier, U.W. 2025, is an associate with Hall, Render, Killian, Heath & Lyman, PC in Milwaukee. He focuses on health information technology and advising clients on privacy and data security requirements.

Rapid adoption and implementation of AI “scribes” is being driven by the promise of easing documentation burdens, reducing clinician burnout, improving accuracy and quality of documentation, and increasing face-to-face time between physicians and their patients – all positives supporting both provider and patient satisfaction that early studies seem to support.^[1]

However, once the recording begins, so do a host of legal questions. This article uses the example of the AI scribe to discuss several common considerations regarding the use of AI in health care that could apply generally to other AI technologies.

While the short answer to whether a provider can record their patient encounter is generally yes, the details matter, and often the question is more about whether a provider “should” do so and within what parameters.

Evaluating the use of AI scribes and other AI technologies requires assessing a patchwork of state and federal laws, including recording laws, data privacy requirements, emerging AI and biometric privacy statutes, and practical implementation and educational steps for those both using and overseeing these tools. Health care organizations must navigate this dense regulatory landscape carefully before layering ambient listening tools and other AI technologies into clinical workflows.

Recording Clinical Encounters

The permissibility of capturing audio from clinical encounters is primarily governed by state wiretapping and eavesdropping laws, which can vary from state to state.

The federal Electronic Communications Privacy Act establishes a one-party consent baseline, meaning only one participant in a conversation needs to consent to a recording. While many states have aligned with the one-party standard, other jurisdictions require that all parties to the conversation consent to the recording. Wisconsin, for example, adopted the federal, one-party consent rule.^[2] Its neighboring state of Illinois, however, opted to require that all parties to the communication consent.^[3]

The method of communication also matters. Some states treat in-person conversations differently from phone, digital or electronic interactions, creating more nuance for health systems that are operating across state lines.

Notice and Consent

A provider in a one-party state like Wisconsin may legally consent to the recording of the conversation and record a patient interaction. They are not legally required to obtain the patient’s consent. However, organizational transparency and patient expectations often matter for an entity reliant on the provider-patient relationship. Because AI scribes are still relatively new, patients may not realize that their doctor’s office is recording their conversation with their provider.

Further, because of the often intimate and sensitive nature of those conversations, patients may be displeased to learn they were recorded without notice, the ability to ask questions, or an opportunity to object, whether they were legally entities to it or not.

Therefore, notice of recording and, perhaps, even notice of the use of AI technologies is becoming more common in health care, and could become a future legal standard. Notice can occur through exam and waiting room signage, notices of privacy practices or registration forms, disclosures in patient portals, verbal explanations prior to enabling the technology at the beginning of a visit, or using audible or visible indicators to signal when an AI scribe is active.

Notice gives patients and providers the opportunity to discuss the benefits, address any concerns and understand the security protocols in place to balance patient privacy with the accuracy and time-saving benefits of these tools. The rationale is simple: transparency maintains trust between patients and their health care providers, which supports patient satisfaction. Moreover, these processes can usually be implemented in predictable and brief manners that do not disrupt the visit.

Telehealth Challenges

Telehealth creates another layer of practical challenge as the patient may be physically located in an all-party consent state even if the clinician is not. Additionally, for health systems with operations in multiple states, it can be a challenge to implement differences in policies, procedures, or electronic system operations. Therefore, health systems may choose the more conservative consent approach to ensure legal compliance while streamlining process.

In addition to the provision of clear notice, they will also obtain affirmative consent from all parties before recording provider-patient interactions regardless of jurisdiction. This may be verbal consent that is documented during the encounter, language included in a consent to treat form, or a specific consent form that the patient is asked to sign.

When a Patient Refuses Consent

Providers face another challenge if a patient refuses to consent to the recording or otherwise refuses the use of an AI scribe during their encounter. While at present many tools give the provider the ability to disable use of the tool for that particular encounter, this may not always be the case.

As this technology continues to expand and become more engrained in health care systems and tools, disabling use of the technology may no longer be an option or potentially could become a standard of care concern for the provider. The necessity to obtain patient consent prior to recording will ultimately be determined through existing laws or new legislation.

However, there is another important question to address in tandem: What is the provider’s obligation to provide care or continue the relationship where the patient refuses to consent to use of a tool that may have become the standard of care? The answer to this question may still be subject to debate.

The Biometric Privacy Layer: Voiceprints

Depending on system architecture, some AI scribes may collect and store “voiceprints,” or patterns of curved lines and whorls made by a system that measure human vocal characteristics for the purpose of identifying an individual speaker. Biometric privacy laws often include voiceprints within their scope and so such collection by an AI scribe could trigger various obligations and prohibitions depending on jurisdiction.

While Wisconsin does not currently have such a biometric privacy law, its neighbor to the south does. Illinois’ Biometric Information Privacy Act (BIPA) requires written notices and consents, publishing, and making publicly available retention policies, and also prohibits the sale or unpermitted disclosure of voiceprints and other biometric identifiers.

As a threshold issue, health care providers implementing these tools (or the lawyers representing them) must determine whether the contemplated AI scribe even generates a voiceprint. Courts interpreting BIPA have stated that it is this hallmark of identifying or verifying the identity of an individual that makes voice data a “voiceprint.”^[4] Therefore, the limited capture of generic voice data, i.e., without the intent or functionality to identify individuals, does not meet this threshold.

Various AI transcription tools operate in a manner that would not constitute the collection of a voiceprint even though it may have recorded a voice. Speech may instead be identified via metadata (i.e., account identity) and transcribed to text, where the tool then queries the transcript using speaker attribution to provide its response.

Rather than constituting voiceprint analysis, this is merely a metadata-driven and text-analytics workflow. AI scribes using large language models may not identify the speaker by voice but rather by contextual clues in the conversation to determine who is talking. Utilizing role-based speaker classification, the AI scribe will transcribe conversations between clinicians, patients, and other participants (e.g., spouses, family members, etc.) to automate and draft clinical notes for review and approval.

While these tools cannot rely on account identities for speaker attribution to structure responses, they instead infer general roles – such as clinician versus patient – based on conversation patterns and linguistic cues. In all these cases, the AI scribe does not identify “who” is speaking beyond these general role-based labels and therefore operate without creating or storing biometric data.

Other states, including Connecticut, Florida, Texas, and Washington, have their own biometric data frameworks. However, many of these frameworks exempt protected health information (PHI) or information collected for treatment, payment, or operations under the Health Insurance Portability and Accountability Act (HIPAA) from their definitions of “biometric data” or otherwise include exemptions for HIPAA covered entities and business associates.

Therefore, based on the current state of biometric privacy law, it is unlikely that a health care provider’s use, collection, and/or storage of such voiceprints in the course of a traditional physician-patient clinical encounter for treatment purposes will trigger the obligations or penalties under these state frameworks. However, as AI advances and states legislate in an attempt to regulate it, this is another area that could be a consideration.

Notwithstanding the various exemptions and underlying technological nuances, there has been a strong appetite for litigation in this space. The theme to avoiding such litigation again seems to be transparency with all parties involved – physicians, patients, family members or friends, and employees – to help alleviate certain litigation triggers, such as the distrust and anger that may accompany learning that sensitive health information was recorded during a private conversation.

Additional Privacy and Security Considerations

When an AI scribe records provider-patient communication, synthesizes, assesses, and processes the interaction through an algorithm based on its training, then converts the resultant data into draft clinical documentation for the provider to review, it is receiving and creating, and also potentially transmitting and maintaining PHI for or on behalf of HIPAA covered entities.

Therefore, understanding the type of solution and vendor is also important to ensure compliance with HIPAA. Cloud-based solutions where the process above occurs in a vendor-hosted environment will require a business associate agreement (BAA). However, an on-premises solution that is loaded onto the covered entity’s own system and behind its firewalls may not require a BAA. Understanding how and where data will flow and be processed is another important aspect of assessing legally compliant use of AI.

Deployment architecture adds another layer of complexity. Most AI scribes are cloud-based given the computational demands of real-time audio processing. They also often integrate and connect with the health care provider’s own information technology systems, such as the EHR, to more efficiently allow draft documentation to appear where the provider can review and finalize it. This can create risk to data both within the cloud where the data is processed and within the system where the data ultimately end up and is stored.

Other relevant considerations to assessing overall risk may include whether subcontractors are involved, how encryption and key management are structured, whether data is stored or accessed outside the United States, and whether system logs contain PHI and, if so, how long they are retained.

Therefore, it is imperative that organizations have a clear understanding of the tool’s architecture and the safeguards in place to protect against security threats. Health care organizations may also want to obtain necessary assurances from vendors with respect to data security or request copies of any third-party security certifications.

Data retention practices should align with the health care organization’s operational and compliance needs. Understanding where data, including PHI, resides, how long it is retained, and how access is governed are important to both regulatory compliance and good data stewardship.

To help minimize regulatory and litigation exposure, organizations may prefer AI scribe tools that favor shorter retention periods that are only long enough for audio to be converted to text before being automatically deleted. If audio is retained longer – for example, for quality assurance or dispute resolution purposes – those retention practices should be transparent, time-limited, and supported by appropriate access controls and audit logs.

Organizations should also be aware that draft notes and intermediate “derivative data” may also contain PHI, and therefore are potential areas of increased risk.

Can the Information Be Used Elsewhere?

Finally, a major consideration for health care organizations evaluating AI tools is whether the vendors may use, retain, or analyze such information to train or refine its current models or develop new models.

HIPAA puts limits on how PHI may be used and disclosed, including generally requiring patient authorization before PHI is sold. It also requires covered entities to notify patients of all the ways that their PHI may be used and disclosed through the notice of privacy practices.

However, HIPAA permits PHI to be de-identified (by covered entities or their business associates) and provides that appropriately de-identified health information is no longer protected under HIPAA. Therefore, vendors will often request broad rights to be able to de-identify and use de-identified information for such purposes, something a covered entity may have to include in its notice of privacy practices.

Additionally, covered entities may want to place limits on vendor ability to both de-identify data and use and disclose the resultant de-identified information for a variety of reasons. This could include keeping data usage in line with the provider’s mission, vision, or values, based on initiatives related to patient transparency and satisfaction, concerns about legal compliance, or because they understand the value of the resultant data and want to protect themselves financially.

Limits on AI Decision-making

The regulatory landscape surrounding AI continues to evolve as regulators try to determine when to regulate AI and how much regulation strikes the appropriate balance between technological advancement and other key interests like professional judgment and patient privacy. Certain AI clinical decision support tools may qualify as “devices” subject to registration with and oversight by the U.S. Food and Drug Administration.

Several states are also moving toward direct oversight of AI systems. For example, Colorado’s recently enacted AI law, scheduled to take effect in 2026, imposes obligations on developers and deployers of “high-risk AI systems” that make or significantly influence “consequential decisions,” including decisions about health care services.

While purely documentation-focused AI scribes would generally fall outside this category, because the clinician – not the AI – determines diagnosis and treatment, as AI tools expand and take on additional functionality, the lines may begin to blur. If an AI scribe’s output feeds into downstream workflows – such as automated triage, care routing, or clinical decision support – such tools may be characterized as contributing to consequential decision-making. Even where clinicians maintain ultimate authority, heavy reliance on AI-generated summaries or structured outputs may trigger obligations under emerging state laws.

Challenges Ahead

This regulatory balancing act appears to be focused on supporting the development and use of technology that can help providers more efficiently, accurately, and effectively treat patients while still requiring that health care provider remain responsible for their use of the tool and their own professional judgment.

Providers must stay aware of the limitations and shortfalls of the technology itself and implement processes to account for and minimize error as a result. An AI scribe may “hallucinate” (i.e., create fake data) as it tries to fill in certain gaps while processing what it actually heard versus what it believes it needs to create the draft clinical documentation.

For example, if it did not hear or speech was garbled when the provider was taking a patient’s vitals, the AI might just make up or insert random numbers in line with what it would commonly expect for heart rate or blood pressure.

Identifying situations where data may more frequently be less reliable and implementing a process to address the risk (such as requiring a provider to annotate actual vital numbers in real time rather than relying on AI summaries later) are part of good AI governance processes.

Similarly, if AI-generated documentation leads to improper or inaccurate billing and coding, it will still be the provider’s responsibility to pay back a false claim. Therefore, ensuring that AI is monitored for error, bias, and risk as well as taking steps to address any findings both within the technology and through external checks and balances will continue to be key to the compliant and ethical use of AI in health care.

Note: AI was used in the initial drafting of this blog post. However, given the limitations of AI, it was heavily reviewed and revised by the authors prior to submission.

Endnotes

[1] See, e.g.,Aaron A. Tierney, et al., “Ambient Artificial Intelligence Scribes: Learnings After 1 Year and Over 2.5 Million Uses,” 6 NEJM Catalyst Innovations in Care Delivery, no. 5, 2025 (highlighting time savings in documentation of more than 15,000+ hours for users compared to nonusers over 1 year of use); Cheryl D. Stults, et al., “Evaluation of an Ambient Artificial Intelligence Documentation Platform for Clinicians, 8 JAMA Network Open, no. 6, 2025 (finding improved clinical well-being and improved connection with patients with decreased amount of time in notes). ↩

[2] See Wis. Stat. § 968.31(2)(c). ↩

[3] See 740 Ill. Comp. Stat. 5/14-2(a). ↩

[4] See, e.g., Zellmer v. Meta Platforms, Inc., 104 F.4th 1117, 1124 (9th Cir. 2024) (“The unifying theme behind each term here is that each identifies a person.”). ↩

Who Can File and Maintain a Divorce When a Client is Incapacitated?

Margaret W. Hickey — 2026-03-10 00:00:00

While a client who has capacity can clearly file a divorce action, what happens when the client has capacity issues?

This is becoming more common as we see older adults divorcing, especially those in second marriages whose adult children do not get along. A case can be dismissed where the person filing does not have capacity to see.^[1] “It is an accepted principle of law that an action cannot be maintained by one who has no capacity to sue.”^[2]

The difficulty in a divorce is that the person filing the action must state under oath that the marriage is irretrievably broken.^[3] If the principal lacks capacity, then who may make that statement on their behalf?

Normally, an agent under a power of attorney can bring a lawsuit on the principal’s behalf. However, there are some powers that are so personal that they cannot be delegated – for example, the right to vote, the right to marry, and the right to divorce.^[4]

Heine v. Witt

There is very little case law on this issue, but in Heine v. Witt case, the wife was the petitioner in a divorce action.^[5]

Margaret W. Hickey, U.W. 1986, is an attorney with Becker, Hickey & Poster, S.C. in Milwaukee, where she practices family and elder law.

After the divorce, the guardian of the estate for Ms. Witt, a mentally incompetent person, moved to vacate the divorce judgment. The argument made was that the defendant husband knew that his wife was not competent when the divorce was granted and permitted the divorce to go forward.^[6] The court held that Ms. Witt was not sane at the time of the divorce and that her husband and his attorney colluded to commit a fraud on the court because he knew that when the divorce was entered.^[7]

Bringing the Action

If the agent under a power of attorney cannot file, then perhaps a guardian will need to be appointed. A court in guardianship can delegate the power to file a divorce.^[8] If the person lacks capacity to sue, the agent under the power of attorney cannot allege that the marriage is irretrievably broken. And if there is no guardian, then the action cannot proceed because there is no one with authority to bring it.

In some cases, the responding party will be able to bring the action and will want the divorce, but if the responding party does not want the divorce, then the incapacitated individual cannot bring the divorce action. Remember that the mere filing of a divorce or legal separation causes the financial power of attorney to be terminated under Wis. Stat. section 244.10(2)(c). It is an inherent conflict of interest for a spouse to be an agent for the other spouse in a divorce action.

As a Respondent

What if the person who lacks capacity is responding to the divorce?

That poses a different situation, because the person filing can allege that the marriage is irretrievably broken. The other party is simply responding to the action, and if there is an agent under a valid power of attorney, they will often have the capacity to respond to litigation. If the Power of Attorney is broad enough then the agent can negotiate for the incapacitated person to reach a settlement. Of course, they cannot testify for the person except to reply to questions about the final agreement and court approval of the same.

Conclusion

When considering whether a person or their agent can file a divorce action, or defend against such an action, the attorney must consider what powers can be delegated in a power of attorney and what powers are too personal to delegate.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.

Endnotes

[1] Wis. Stat. § 802.06(2)(a). ↩

[2] Joint School District No. 1 of Wisconsin Rapids v. City of Wisconsin Rapids Education Association, 70 Wis. 2d 292, 302, 234 N.W.2d 289 (1975)(citing to 59 Am.Jur.2d, Parties, p. 386, sec. 31). ↩

[3] Wis. Stat. § 767.217(2)(c). ↩

[4] See, e.g., 18 Wis. Prac. Elder Law §3.5 (2024 ed.) and Workbook for Estate Planners, at §11.36 (agent cannot make a will, vote, take marriage vows, perform personal service contracts or take oaths, citing In re Guardianship and Protective Placement of Murial K, 2002 WI 27, ¶ 27 n.6, 251 Wis. 2d 10, 640 N.W.2d 773 citing Wis. Op. Att’y Gen. 156, 157 (1988). ↩

[5] Heine v. Witt, 251 Wis. 157, 28 N.W.2d 248 (1947). ↩

[6] Id. at 159. ↩

[7] Id. at 166-67, 168. ↩

[8] See Wis. Stat. § 54.20(3). ↩

Wisconsin Supreme Court Sets Involuntary Medication Standards of Review

Jay D. Jerde — 2026-03-02 00:00:00

Feb. 25, 2026 – An appeal challenging the constitutionality of involuntary medication to restore a defendant’s competency to stand trial gave the Wisconsin Supreme Court the opportunity to set standards of review for the Sell factors in State v. J.D.B., 2026 WI 5.

Justice Brian K. Hagedorn, writing for the 6-1 majority, said “we independently conclude – and agree with the circuit court – that the [s]tate has an important interest in prosecuting Jared for his serious crime of battery to a law enforcement officer.”

In contrast, Justice Susan M. Crawford disagreed “that the [s]tate maintained a sufficiently important interest in prosecuting Jared, eight months after he was arrested and taken into custody, to warrant an order to forcibly medicate him solely for the purpose of restoring his competency to stand trial.”

Punched an Officer

The defendant, which the Court gave the pseudonym “Jared,” at age 19 had threatened to get “a gun and kill everyone at his home.” His mother called police.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

“Jared threatened the officers and punched one of the officers in the face.” He was charged with battery to a law enforcement officer. Jared had no criminal history.

Jared’s defense counsel had reason to believe Jared was not competent to stand trial. At Jared’s first court appearance, the Milwaukee County Circuit Court ordered a competency evaluation.

A Wisconsin Department of Health Services (DHS) evaluation indicated schizophrenia and found Jared incompetent to proceed to trial and assist in his defense.

A few months after Jared went from jail to Mendota Mental Health Institution, he stopped taking his medications, which made him violent.

DHS moved the circuit court to involuntarily medicate Jared. The court, relying on the DHS doctor’s report, proposed treatment plan, and testimony, granted the motion.

The Court of Appeals reversed. The state appealed.

Due Process

Orders for involuntary medication for trial raise a due process liberty interest under the Fourteenth Amendment. The U.S. Supreme Court defined these constitutional protections in Sell v. United States, 539 U.S. 166 (2003).

Sell sets four factors the state must prove:

“important governmental interests are at stake,”
“involuntary medications will significantly further” the government’s interest,
“involuntary medication is necessary to further those interests,” and
“administration of the drugs is medically appropriate.”

State v. Fitzgerald, 2019 WI 69, applied the Sell factors to Wisconsin’s statutory provisions, but no standard of review existed to evaluate appealed orders.

Although Jared’s involuntary medication order expired – making his appeal moot – both parties sought judicial clarification.

Because the issue could evade review, the Supreme Court decided to review the merits.

Governmental Interest

“In general, if a defendant is charged with a serious crime, the state has an important interest in bringing that defendant to justice via prosecution,” the opinion explained about the first Sell factor.

Special circumstances could undermine the government’s interest, Sell warned. A civil commitment or lengthy pretrial incarceration cuts into this interest, the opinion explained.

This “threshold question” is a “fundamental legal question … focused on the broader governmental interest, not on the credibility determinations or judgments unique to factual findings.”

It’s a question of law, the Supreme Court held, subject to independent appellate review.

Although Jared never argued special circumstances before the circuit court – potentially forfeiting the defense – the majority considered his arguments, which it concluded didn’t “undermine the [s]tate’s interest.”

Although Jared argued that he could be found not guilty by reason of insanity, “a defense to prosecution cannot be the very reason to forgo prosecution in the first place,” the majority explained.

His “mental health crisis,” Jared argued, “could be addressed through a future mental health commitment rather than a long sentence,” but Sell advises that “civil commitment is not ‘a substitute for a criminal trial,’” the majority said. Nor had a civil commitment proceeding begun.

“Jared suggests he was unlikely to receive a long sentence, and the eight months he spent in custody would likely cover substantially all of the sentence,” the majority said.

“What Jared misses, and our analysis emphasizes, is that criminal prosecution serves interests far beyond Jared himself.”

Questions of Fact

The other three Sell factors, the majority held, relied upon factual determinations – reviewing an individualized treatment plan and evaluating witness credibility.

“This is work ‘where the [trial] court’s comparative expertise is at its zenith and ours its nadir,” the Supreme Court majority explained.

Whether “involuntary medication significantly furthers the government’s interest in prosecuting the offense,” ensuring mental competence with minimal side effects, required weighing the evidence of the proposed treatment plan’s ability to help the defendant.

This process isn’t resolved by a checklist, the majority said in addressing a misunderstanding about State v. Green, 2021 WI App 18, which attempted to remedy a generic treatment plan by listing specific items.

Similarly, whether “medication is necessary to further the important government interest” is a medical conclusion, “assessed by a careful credibility-focused assessment of the written evidence and hearing testimony.”

Finally, whether “‘the administration of drugs is medically appropriate, i.e., in the patient’s best medical interest’ … requires the circuit court to assess the medical evidence adduced in the record and at the hearing to make a factual finding.”

These three factors are reviewed under the clearly erroneous standard of review, the majority held. Decisions will survive appeal “as long as the evidence would permit a reasonable person to make the same finding.”

“We search the record not for evidence opposing the circuit court’s decision, but for evidence supporting it,” the majority explained, quoting State v. Wiskerchen, 2019 WI 1.

The circuit court’s findings, the majority said, demonstrated “a reasonable view of the evidence” and application of “clear and uncontested” testimony in ordering involuntary medication of Jared.

Justice Crawford: ‘Not Constitutionally Warranted’

Although Jared never argued in circuit court his central issue on appeal, Justice Crawford in her dissent emphasized that Sell turned on “specific circumstances not considered by the lower courts.”

With “important liberty interests at stake” under de novo review with a well-developed record, Justice Crawford concluded that the circuit court had “overlooked special circumstances that outweighed the [s]tate’s prosecutorial interest.”

“If the circuit court had declined to order Jared forcibly medicated, a civil commitment would have been reasonably foreseeable,” potentially including “an order for involuntary medication.”

When the circuit court ordered involuntary medication, Jared had already been in custody for more than eight months. Medically induced competence could take months more.

The longer he remained confined, the dissent argued, the state’s interest in prosecution diminished.

“[A]s a first-time offender, he would likely have received a sentence for the crime well under the statutory maximum of three years of confinement,” the dissent said, especially given his youth and additional medical problems.

“As instructed by Sell, I reach this conclusion by considering the facts of this individual case,” the dissent concluded.

“[B]y the time the [s]tate sought the order to forcibly medicate Jared, its interest had diminished to the point that the intrusion on his liberty was not constitutionally warranted.”

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Supreme Court: WCA 'Appropriate Remedy' Prevents Class Action

Confusion Followed by Litigation

‘Window of Time to Remedy’

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‘Guts the WCA’s Class Action Remedies’

Patient Privacy in the Age of AI Scribes: Notice, Consent, and Compliance

Recording Clinical Encounters

Notice and Consent

Telehealth Challenges

When a Patient Refuses Consent

The Biometric Privacy Layer: Voiceprints

Additional Privacy and Security Considerations

Can the Information Be Used Elsewhere?

Limits on AI Decision-making

Challenges Ahead

Endnotes

Who Can File and Maintain a Divorce When a Client is Incapacitated?

Heine v. Witt

Bringing the Action

As a Respondent

Conclusion

Endnotes

Wisconsin Supreme Court Sets Involuntary Medication Standards of Review

Punched an Officer

Due Process

Governmental Interest

Questions of Fact

Justice Crawford: ‘Not Constitutionally Warranted’

Scholarships Available: 45^th Annual Family Law Workshop