Where’s Waldo?

Somwhere hidden in this OnMilwaukee.com article, there is a wee little, itty-bitty, teeny-weeny conflict of interest.  Can YOU spot it?



  1. Holy cow! I read part of the article earlier today but didn’t catch that one.

    Excellent work.

  2. This writer is not objective, he has something to gain.

  3. a lawyer has an ethical duty to represent the best interests of his/her client. the law of torts comes from the english common law as i have said before. these are time honored traditions derived from those who sought justice. there is a problem in legislating the constititutional right to a fair jury trial of your peers. beyond that its all about punitive damages which punish the extreme wrongdoer,akin to the criminal law but a civil retribution. there is nothing political about it. the extreme wrongdoers ruin the lives of victims of crime, drunken driving,gross negligence. a cap on damages may be ok in these economic times but be careful not to give a pass those who lie, deceive and cause irreparable harm to citizens who are not at fault. of course, its all about money. i want to hear an argument about the justification to limit the legal and constitutional right of the people to recover damages from a wrongdoer be it a corporation or an individual. some states distinguish the difference between ordinary,intentional and gross negligence.

  4. I fail to see how this is a conflict of interest. If he had not disclosed his relation to the Kellner family, then I could see your point. It’s not any different than a lobbyist or pundit writing something to promote their cause.

  5. Unless I’m missing something, it says very clearly at the bottom of the article that Foeckler represents the Kellner family.

    What’s the issue?

  6. Upon further reflection, the conflict of interest would lie with Walker, who proposed this bill and would gain to benefit it by minimizing his liability with the O’Donnell Park tragedy and the problems at the mental health complex.

  7. So here we go: http://www.jsonline.com/news/milwaukee/114241889.html

    They filed today.

    I was told it was the time of filing that mattered, not the time of judgement, and that this bill didn’t have any retroactive language. So does it matter in this case?

    And WJM3, I agree with you. The writer has millions to gain.

  8. Capper, are you arguing Scott Walker is personally liable for the parking garage and mental health complex?

  9. I am saying he could get tied into lawsuits involving either of those issues.

  10. Personally? I’d say no, but if you insist…

  11. Mr. Foeckler is authoring a public policy piece (with no rebuttal or opposite view presented) in which he argues against against a law for all sorts of noble-sounding reasons. But while I’m sure he really does feels bad for the Kellners and believe most of what he is saying, you have to wonder how much of his motivation for writing this piece is tied to his own bank account.

    Maybe the last line should have read “Al Foeckler is an attorney at Cannon & Dunphy, S.C. and represents Dawn Kellner. If the Assembly bill 1 that he rails against in this piece is passed, Mr Foeckler stands to lose a minimum of 2 million dollars per year, and his law firm stands to lose at least 150 million dollars per year. But those figures have nothing to do with why he volunteered to write his first ever guest column for OnMilwaukee.com. No, really!”

    To the merits of the article itself, the obvious mistake/lie is when he states that “This bill (called Assembly Bill 1) actually has nothing to do with either creating or maintaining jobs”. That is flat out wrong. Companies who face greater amounts of legal risk have much more uncertainty about their future and are therefore less likely to expand and hire people. Reduce the legal risk, increase the stability, increase the hiring. This is middle school level business knowledge (but again, it is inconvenient for the case Mr. Foeckler wishes to make)

  12. The tort reform won’t create jobs. Demand is what spurs a company to hire more people. This doesn’t create that demand. If anything, it reduces it because it eliminates consumer protections and civil rights, causing the consumer to shy away from products that could be unsafe and having no recourse if it turns out to be so.

  13. So you won’t be driving or drinking soda or crossing the street, huh?

  14. Ironically, I took the day off so I could get my car to the garage due to a recall notice for a possible safety hazard. In Walker’s world, I wouldn’t have had that protection, and might have bought a different car or no car at all.

    There will always be risks, but we can take responsible steps to reduce them. Walker would rather see his campaign donors (see WMC) profits in the short term than the state as a whole, long or short term.

  15. Company 1 is fast growing drug company (10000 employees) with huge demand for their new product. However, while their drug is great for most customers, there are a few cases of a serious side effects and intelligence in their company thinks that given the current legal environment, the company is likely to face a class action lawsuit that could wipe out all their revenue from this drug. And the longer the drug remains on the market, the larger the class action lawsuit gets. Company 1 decides it is best to scrap this drug and focus their business on their safest products. They layoff 200 product specialists, 100 corporate staff members, and 700 drug reps associated with the canceled drug.

    Company 2 is a furniture company with 10000 employees. They are growing, but much more slowly than company 1, at about 10% per year. However, they are also in a very stable situation…. they face no large risks, legal or otherwise. They can safely predict that the 10% growth will continue into the next year. Therefore, they mirror their revenue growth with employee growth and open up new stores, a new production factory, and additional marketing staff. All told, they hire 1000 people.

    Let this be a cautionary tale to those who think it is all about demand. Company 1 had greater demand that was increasing at a greater rate. But they also had a crippling millstone around their neck in the form of legal risk. In the end, companies are in the business of weighing risk against reward. You do need demand to reap rewards, but that is only part of the story. If the risks are too great and are likely to wipe out the rewards, a lack of hiring (at best) or layoffs (at worst) will be the outcome.

  16. Thank you for proving my point.

    The demand for medication will always be there. But by following regulations for safety, and keeping in mind their liability for producing an unsafe product, Company 2 is able to not only survive, but thrive.

    Remember, more often than not, these rules were created for a reason. By removing, or at the least, minimizing their responsibilities, Walker is doing companies no favor, and even less for the consumers.

  17. Companies aren’t out to rip off consumers. It seems in your nanny world every thing I do or buy would be vetted by an overpaid government employee to protect me.

    Now, let’s go to the discussion as to whether or not a human life has a dollar value. If so, does a lawyer have a right to make a third of that value? I have a hard time believing that you’d argue ten million for a year’s effort on one case is fair. Isn’t fair what you’re all about?

  18. Do you really think that this will only go on for a year? This will be stalled for years, and that is not counting the appeals and the appeals of appeals.

    There is also the costs associated with “expert witnesses” and he other research that has been hindered and blocked by our former county exec.

    As for the agreement between the law firm and the family, I don’t have nor know what those terms are, so I can’t argue whether the family is being ripped off.

    And Cindy, on a side note, you’re much better than the hyperbole. Leave that to the slugs like RDW or Fischer.

    Oh, and what about accountability? I thought that was a big thing for conservatives…

  19. No comment on assigning a dollar value to a human life?

    And I was thinking in terms of actual time on the case. I’m pretty sure all those expenses you mentioned would be separate. By the way, no more cranking about those overpaid Wall Street executives. You just defended an overpaid lawyer.

    Accountability? Sure. Punitive awards of 20 times damages? No thanks.

  20. Did I defend him? How so? I just laid out facts, including the parts I don’t know.

    But you’re the one that just put a cost on a human life. How “fair” of you to play God like that. I’m sure you’d be singing a different song if it was one of your children killed.

  21. And before you take off on your hyperbole jet, that was not a threat. That was an effort to get you to use your empathy.

  22. I’m plenty empathetic to a mother losing her teenage son in an accident. You’re a bit of an ass to imply otherwise. This one case, however, shouldn’t set the law for our state.

    I didn’t “just put a cost on a human life.” Punitive damages aren’t the same thing. If there’s a value, let it be assigned to the actual damages.

  23. So, what is the value of a human life? Of a mother’s child?

    Would you argue that a murderer shouldn’t be sued by the victim’s family?

  24. I asked you first.

    Most murderers aren’t sued. No lawyer will pick an empty pocket.

  25. So you are saying that in Capper’s world, a company that makes a drug that improves the quality of countless lives has no place in the market if anyone is hurt?

    Do you realize that in your little fantasy land, there are also no buildings (a construction worker may be injured!) or roads (there might be an accident!) or restaurants (someone might eat too much fatty food and have a cardiac arrest!).

    All progress comes with a price. Again, its risk and return, gain and loss. In “Capper land”, no risk or loss is acceptable, so there is no progress.

    My fear is that America (the land of the free and the home of the brave) is slowly devolving into “Capper land”. That would be the biggest loss of all.

  26. Ryan, reread what I wrote in #14 and #16, then come back and try again, this time using an honest argument.

    Cindy, you’re the one with the issue of a family wanting compensation for their loss, so it is your question to answer.

  27. No, Capper, you are the one wanting a family to be paid in exchange for a child. It falls to you. I’m of the mind to argue that no amount of money could replace a child and so none could be assigned.

  28. I read exactly what you said:

    “The demand for medication will always be there. But by following regulations for safety, and keeping in mind their liability for producing an unsafe product, Company 2 is able to not only survive, but thrive.”

    In other words, you want Company 1 to wait until they are 100% certain that their new drug is perfect so they have as low of a risk profile as Company 2. But what if the nature of developing new ground-breaking drugs is such that Company 1 might NEVER be certain their drug is safe enough to earn the “100% sure capper seal of approval”. This is exactly what I responded to…. the burden that you are imposing on company 1 may be impossible to achieve. And in cases where this is so, it makes growth impossible, thus falsifying Foeckler’s original assertion that legal risk and economic growth are unrelated.

  29. There have been regulations for ages regarding medication, yet the pharmaceutical companies have been thriving and they keep coming up with new medicines. And unless there is an undue and unethical influence between the companies and the testers, the products are considered to be safe enough.

    Despite the false insinuations being hurled at me tonight, I am realistic enough to know that nothing is foolproof, but reasonable expectations have been and can be enforced without damaging the company or its all so precious profits, as displayed by your example of Company 2. If Company 1 can’t do the same, it is more a sign of their management than the regulations.

  30. “If Company 1 can’t do the same, it is more a sign of their management than the regulations.”

    So the fact that one is developing ground-breaking drugs (a very new thing in human history) and the other makes furniture (something that has existed for millennia) has nothing to do with it?

    And to clarify, in my examples, I wasn’t necessarily talking about 2 companies in the US, so your commentary about the reasonability of US drug regulations is not applicable to my point…. I was just creating an extreme scenario with 2 rationally behaving companies that provided an undeniable example of legal risk dictating hiring decisions. I agree that we can have a reasonable debate about how much impact legal risk might have in any given industry; to repeat, my main focus was simply to show how laughable Foeckler’s claim (which you initially defended) that legal risk and hiring are unrelated is. If you accept that they are even somewhat related in some cases, then I would say we are as close to agreeing as we ever will be. 🙂

  31. Hesitant to say it, buy I’m sliding a bit toward Capper’s side. Perfectly packaged hypotheticals do not represent reality. While I think the law industry can have instances of gross greed, it is also a profession, and those that are the most qualified, knowledgeable and provide the best counsel for their clients deserve to be fairly compensated. I am not qualified to say a number, but I’m also realistically grounded to understand the compensation scenerio of paying a third to the law firm isn’t likely to be altered with this legislation.

    I like dick’s statement to compensation dictated by level of intent and negligence. Some companies, doctors, drug companies, executives, and political leaders need to be held liable for their actions, IF they are culpable. I don’t mind someone with experience and expertise making as much money as a they are capable of making, fairly.

  32. I still say you can’t place an arbitrary value on a human life. If there’s culpability, charge someone criminally. Stop pretending money fixes everything.

  33. as i have said before 1/we need to read the newly proposed law before making comment after a news story comment. can someone post it for all to see ? the one-third contingent lawyer fee is the norm but a client can negotiate a lower contingent fee. there is no legal/ethical provision for the fee except to have a written agreement. liability insurance companies pay their own lawyers a salary or a monetary sum. there are wrongful death limits on much a deceased persons estate can recover. (it was $250,000, but check me on that). if a lawyer quotes a law he/she never read it is malpractice. a good rule to abide by.

  34. actual damages are mostly those out of pocket like loss of wages, past, present and future, medical expenses, past present and future, property and personal losses past , present and future. pain and suffering as the law states cannot be determined with mathematical certainty and is always an issue. punitive damages have their own creation going way way back in history and the purpose is to punish someone or some entitly for intentional, gross or criminal negligence whatever the state law provides. of course, the first to object are those who may be worried about their acts being punitive. otherwise, why worry ? juries in Wis. are quite conservative to award them and they are hardly considered in settlement negotiations except for upsmanship.the burden of proof is very high and requires loads of evidence by experts or a sympathetic jury. the courts have the power to alter punitive damages. this may be much ado about nothing. yes the objectivity of actual monetary recovery is always open to discussion. say, you cant squeeze blood out of a turnip. in those cases the defense lawyers make the injured person/plaintiff look bad to say the least. our system of justice generally is the best in the world but if the idea of fairness is lost we may lose out eventually. the constitution says that each person has the right to a jury trial of his/her peers. but if the jury is handcuffed by the law there is nothing to decide. a business that uses all possible safety measures has nothing to worry about. they too have legal counsel to advise them before selling a defective product. and their defense lawyers are very good. some are my friends. Coca Cola has volumes upon volumes of decided cases in the law libraries and they are still in business. the last stats i saw is that 80 % of medical malpractice case are won by the defense(medical providors). this is a long blog but so are the facts.

  35. Ryan Morgan says:

    Interesting post Dick. Isn’t that last part, that 80% of med mal cases are won by the defense, pretty good evidence that way too much time and energy is wasted arguing some of these cases that never should have made it to court in the first place?

  36. It’s really, really expensive though, to pay that defense that wins 80% of the time. Medical malpractice is through the roof because of it.

  37. medical malpractice was not my field except for a few instances when a client insisted on going forward at least to a medical mal panel under state law. it becomes Dr vs Dr both of whom are paid up front to testify. for me the time, effort , expense, anguish and potential recovery that favored the client were consuming and left little time for other legal work.