EDWBA The Docket - Whyte Hirschboeck Dudek SC

The DocketAnnual Meeting Edition - March 2011EDWBAEASTERN DISTRICT of WISCONSINBAR ASSOCIATIONEDWBA LeadershipExecutive CommitteePresidentG. Michael HalfengerPresident ElectMatthew W. O’NeillSecretaryAnthony S. BaishTreasurerAllen C. Schlinsog, Jr.Past PresidentCristina D. HernandezProgram Co-chairsScott W. HansenBarbara J. JanaszekBoard of DirectorsPaul E. BensonMelinda Hein BialzikJennifer L. BolgerMark A. CameliSandra R. GegiosScott W. HansenJoseph D. KearneyJonathan H. KoenigCassandra H. McCauleyTimothy F. NixonElizabeth C. PerkinsMatthew V. RichmondT. Wickham SchmidtJan A. SmokowiczJennifer C. SusekEx-Officio Board MembersHon. Charles N. Clevert, Jr.Terri L. FullHon. Patricia J. GorenceHon. William C. GriesbachHon. Nancy JosephHon. Elsa C. LamelasHon. Margaret Dee McGarityHon. Pamela PepperHon. Rudolph T. RandaJon SanfilippoHon. J.P. StadtmuellerDonald J. WallPresident’s CouncilNathan A. FishbachWilliam J. MulliganKathleen S. DoniusDaniel T. FlahertyScott J. CampbellRobert L. GegiosKathy L. NusslockCommittee ChairsBankruptcyBruce G. ArnoldPeter C. BlainCivilMelinda Hein BialzikMark A. PetersonCriminalChristopher D. DonovanJonathan H. KoenigMembershipMark A. CameliNewsletterLaura Schulteis KwaterskiJulie P. WilsonPro BonoMaria L. KreiterJennifer C. SusekFrom the PresidentOn behalf of the Eastern District of Wisconsin BarAssociation I am pleased to invite you to attend our 2011Annual Meeting and Presentation, which will take placeon Thursday, April 7, at the Milwaukee Athletic Club.This year’s invitation has a new format – this newsletter.It provides you with program descriptions and details,profiles of the award recipients, and an event schedule.The registration form is on the back panel. We hope youfind it interesting and helpful.This Ninth Annual Meeting and Presentation is thehighlight of the EDWBA’s year, and is designed to offerupdates and programming useful to everyone whosepractice or interests touch on what happens in our federalcourts. Our goal is for everyone to come away with newinsights and understandings as a result of their attendance,as well as provide the opportunity for members ofthe federal bench and bar to interact in a collegial setting.The program begins with a general session on themortgage meltdown – how it happened, current efforts tostop the foreclosure crisis, and what lies ahead. Followingthe general session, attendees will have the opportunityto choose among separate program tracks. The first trackwill focus on the Daubert expert witness standard, whilethe second will feature a discussion of federal post-convictionremedies under 28 U.S.C. §§ 2254 and 2255.The luncheon kicks off with the keynote speaker, theHonorable Diane P. Wood of the United States Court ofAnnual Meeting Agenda - 3 CLE credits applied for7:45 a.m. Registration8:15 a.m. Welcome by the Honorable Rudolph T.Randa, U.S. District Court8:30 a.m. General SessionMaking Sense of the Mortgage MorassModerator: Mike Gousha, MarquetteUniversity Law School9:50 a.m. BreakPanelists: Hon. Pamela Pepper, U.S.Bankruptcy Court; David W. Asbach, Officeof the U.S. Trustee; Sean Dilweg, CUNAMutual Group; James M. Johannes,University of Wisconsin School ofBusiness; Amy M. Salberg, WhyteHirschboeck Dudek10:00 a.m Program TracksTrack OneDaubert Today: A Standard for AllWisconsin CourtsModerator: Joseph D. Kearney, MarquetteUniversity Law SchoolAppeals for the SeventhCircuit. At the conclusionof her remarks, wewill recognize our awardwinners, all of whomhave contributed greatlyto the practice of law inthe Eastern District. Weare delighted to recognizetheir service andachievements.The EDWBAappreciates the continuingsupport from the United States District Court andits judges to this annual meeting as well as the time andinvolvement the judges have given in the CLE programsand bench-bar lunches this year.I encourage you to read further to learn more aboutour keynote speaker, the exceptional programs for bankruptcy,civil and criminal practitioners, and the deservingaward recipients.Sincerely,G. Michael HalfengerPresidentPanelists: Hon. William E. Callahan,Jr., U.S. District Court; Daniel D. Blinka,Marquette University Law School; RichardM. Esenberg, Marquette University LawSchool; Ralph A. Weber, Gass Weber MullinsTrack TwoFederal Post-Conviction RemediesUnder 28 U.S.C. §§ 2254 and 2255: AnOverview of Procedural and Substantive LawModerator: Gregory J. O’Meara, S.J.,Marquette University Law SchoolPanelists: Hon. William C. Griesbach, U.S.District Court; Gordon P. Giampietro, U.S.Attorney’s Office; Robert R. Henak, HenakLaw Office, S.C.; Daniel J. O’Brien,Wisconsin Department of Justice11:30 a.m. Luncheon*for those attending the luncheon only, please arrive tothe MAC by 11:15 a.m.1:30 p.m. AdjournThe Honorable Diane P. Wood, United StatesCourt of Appeals for the Seventh CircuitAwards Presentation

Keynote Address: The Honorable Diane P. WoodThe Honorable Diane P. Wood will deliver the keynote address at the EDWBA’s Annual Meetingand Presentation. The keynote address will kick off the luncheon at 11:30 a.m.Judge Wood received her undergraduate and law degrees from the University of Texas at Austin.After graduation from law school, she clerked for Judge Irving L. Goldberg of the U.S. Court of Appealsfor the Fifth Circuit and for Justice Harry A. Blackmun of the U.S. Supreme Court. She was amongthe first women to clerk at the Supreme Court. After clerking at the Supreme Court, she worked for theU.S. State Department on international investment, antitrust, and transfer of technology issues and shepracticed antitrust and commercial litigation at Covington & Burling in Washington, D.C.After beginning her teaching career as an assistant professor of law at Georgetown University, JudgeWood joined the University of Chicago Law School faculty in 1981, where she served as Associate Deanfrom 1989 through 1992. In 1990, she was named the Harold J. and Marion F. Green Chair in InternationalLegal Studies, becoming the first woman at the Law School to be honored with a named chair.She also served as a special assistant to the Assistant Attorney General at the U.S. Department of Justice from 1985 to 1987, and from 1993to 1995, as Deputy Assistant Attorney General for international, appellate, and policy in the Antitrust Division of the Department of Justice.Judge Wood was appointed to the Court of Appeals for the Seventh Circuit by President Clinton on June 30, 1995. Since her appointmentto the Seventh Circuit, Judge Wood has also continued to teach at the University of Chicago Law School as a Senior Lecturer in Law.Programs at a GlanceMaking Sense of the Mortgage MorassModerator: Mike Gousha, Marquette University Law SchoolPanelists: Hon. Pamela Pepper, U.S. Bankruptcy CourtDavid W. Asbach, Office of the U.S. TrusteeSean Dilweg, CUNA Mutual GroupJames M. Johannes, University of Wisconsin School of BusinessAmy M. Salberg, Whyte Hirschboeck Dudek, S.C.The plenary session will focus on the events that triggered the recession from which we have not yet fully recovered and which have led to asignificant increase in the workload of our courts and extensive corrective legislation. Among other things, the panelists will examine(i) how the mortgage meltdown happened, including the role of collateralized debt obligations, the actions of rating agencies, and fraudby mortgage brokers, appraisers and others, and (ii) current legislative efforts to stem the foreclosure crisis, including the Dodd-Frank WallStreet Reform and Consumer Protection Act, the Truth in Lending amendment regarding mortgage loans, and the Homeownership EquityProtection Act.Daubert Today – A Standard for All Wisconsin CourtsModerator: Joseph D. Kearney, Marquette University Law SchoolPanelists: Hon. Rudolph T. Randa, U.S. District CourtHon. William E. Callahan, Jr., U.S. District CourtDaniel D. Blinka, Marquette University Law SchoolRichard M. Esenberg, Marquette University Law SchoolRalph A. Weber, Gass Weber Mullins LLCDaubert was decided in 1993. Since that time the Supreme Court has twice refined the analysis in General Electric and Khomo Tire, andFederal Rule of Evidence 702 was amended to incorporate the standard. The Wisconsin legislature earlier this year amended Wis. Stat. §907.02 to make Wisconsin a Daubert state. The federal Daubert jurisprudence, including the case law developed in the Eastern Districtof Wisconsin, is now important to civil practitioners in all Wisconsin courts. The civil breakout session will address the current status ofDaubert and will discuss how Daubert challenges have been handled in the Eastern District.Federal Post-Conviction Remedies Under 28 U.S.C. §§ 2254 and 2255: An Overview of Procedural and Substantive LawModerator: Gregory J. O’Meara, S.J., Marquette University Law SchoolPanelists: Hon. William C. Griesbach, U.S. District CourtGordon P. Giampietro, U.S. Attorney’s OfficeRobert R. Henak, Henak Law Office, S.C.Daniel J. O’Brien, Wisconsin Department of JusticeThis program will provide an overview of 28 U.S.C. §§ 2254 and 2255 post-conviction remedies, including broad similarities and differencesbetween the two. While this program is not meant to be a start-to-finish guide on handling these types of cases, several recurringand important issues will be discussed. These include: the effectiveness of the Rule 4 screening process for petitions filed; deciding whento order the government to respond to claims made in a petition; landmark and recent Supreme Court cases governing these issues; howdefense lawyers should approach ineffective assistance of counsel claims; and how to amend the pleadings. If time allows, a question andanswer session will conclude the session.

2011 EDWBA Award RecipientsNathan A. Fishbach, Shareholder, Whyte Hirschboeck DudekRecipient of the Judge Myron L. Gordon Lifetime Achievement AwardEDWBAEASTERN DISTRICT of WISCONSINBAR ASSOCIATIONJust as with the distinguished career of the jurist in whose honor this awardhas been named, Nathan Fishbach’s stellar career has been marked with numerousmilestones, including his many outstanding contributions to the vitality of the legalprofession and organized bar. At the same time, his professional work serves as a constant reminder to all of his effective skills as anadvocate on behalf of both private and public sector interests. Collectively, these attributes more than underscore Nathan Fishbach’sdedication and resourcefulness as well as his extraordinary record of accomplishment and success.In May 1980, Mr. Fishbach joined the United States Attorney’s office in Milwaukeewhere he served for more than 13 years in various capacities in the prosecution and civilarenas. For his litigative work, Mr. Fishbach received awards from the Federal Bureau ofInvestigation, the Environmental Protection Agency’s Criminal Investigation Division,and the Department of Health and Human Services’ Office of Inspector General (Investigations).The IRS’s Criminal Investigation Division named Mr. Fishbach an HonorarySpecial Agent for prosecuting numerous criminal tax cases. While serving in the UnitedStates Attorney’s office, Mr. Fishbach spent considerable time instructing federal attorneysand agents at national conferences sponsored by the U.S. Department of Justice and itsclient agencies.In 1993, Mr. Fishbach was honored with the appointment of interim U.S. Attorney bythen Chief Judge Terence T. Evans, an appointment that followed service as Chief of theCivil Division, and then by Deputy U.S. Attorney. Mr. Fishbach then joined the Milwaukeeoffice of Whyte Hirschboeck Dudek where he became a shareholder and, later, amember of its Board of Directors. Over a period of more than 17 years, his practice areashave evolved to include complex civil litigation and white collar criminal cases, together with the representation of corporate andgovernmental entities along with professionals in compliance matters.At the same time, Mr. Fishbach continued to expand his numerous contributions to the organized bar with service as Presidentof the Milwaukee Bar Association, the first government attorney to hold this post. Mr. Fishbach worked with others in forming theEastern District of Wisconsin Bar Association and served as its founding president.Mr. Fishbach’s many other awards and distinctions include having been elected to membership in the American Law Institute,being twice named lawyer of the year by the Milwaukee Bar Association (1996, 2005), recipient of the Wisconsin Law Journal’sLeaders in the Law Award (2008), and selection for inclusion in The Best Lawyers in America ® in Commercial Litigation and CriminalDefense: White Collar (2009-2010).Mr. Fishbach has also given of his time and talent to the process of selecting and recommending candidates for appointmentthrough current service as Chair of the Eastern District of Wisconsin Magistrate Judge Merit Selection Committee and as a memberof the Federal Nominating Commission established to screen and recommend candidates for appointment to the Federal bench andthe post of U.S. Attorney in Wisconsin’s Eastern and Western Judicial Districts. He also served on Senator Herb Kohl’s AdvisoryCommittee on Supreme Court Nominations.Beyond his extensive practice and bar activities, Mr. Fishbach has often lectured on law-related subjects and authored articles. Heco-authored two books, Wisconsin Practice: Methods of Practice, West, 2004 (Supp. 2009), a four-volume publication on Wisconsinsubstantive law, and Federal Criminal Restitution, West, 2010. Fittingly, his favorite article is “Reflections of a Former Prosecutor,”which describes the satisfaction provided by public service.If all of this were not enough, Mr. Fishbach continues to fulfill his commitment to the community. He is particularly proud ofhis work as a member of the Marquette University Law School Advisory Board.Clearly, Mr. Fishbach is a worthy recipient of the Myron L. Gordon Lifetime Achievement Award.Thomas G. Wilmouth, Associate Federal Defender, Central District of IllinoisRecipient of the Judge Robert W. Warren Public Service AwardTom Wilmouth is a 1987 graduate of Notre Dame Law School. For 16 years he was in the private practice of criminal defensein the state and federal courts of Wisconsin. From 2004 to 2010, he was Criminal Justice Act Panel Administrator and Counseland Associate Federal Defender in the Eastern District of Wisconsin. He currently is an Associate Federal Defender in the CentralDistrict of Illinois.

Tom has represented indigent defendants from all social and cultural backgrounds and who have been accused of crimes thatspan the entire United States Code. In his role as the Criminal Justice Act (CJA) Administrator for the Federal Defender Services ofWisconsin, he was the only attorney in the country who not only represented his own clients but also oversaw the administration ofthe CJA panel (composed of private bar attorneys who take federal defense appointments). He also served as the CJA panel liaison tothe private bar attorneys and aided them in case strategy, preparation and provided general advice.Dean Strang, head of the Federal Defender Services of Wisconsin from 2000 to 2005, has this to say about Tom:When I find another lawyer who has to be told to go home from the office at 1:00 am because the vouchers on which he isworking still will be there at 7:30 am, or when I find another lawyer who more eagerly taught himself better Spanish onlyto speak to his clients in their own language, or when I find another lawyer who is more willing to work all night with a colleagueon that colleague’s trial, or when I find another lawyer who more frequently buys a client a shirt and a sweater so thatthe client can feel proud about how he looks in court, or when I find another lawyer who gives more of his heart and histime and his tears to a friend in the midst of a personal crisis, I will nominate that lawyer for the Robert W. Warren PublicService Award. Until then, I know of no one who is a more worthy recipient than Tom Wilmouth.Tom is not only highly respected within the criminal defense community, butby judges and prosecutors alike. Magistrate Judge William Callahan says that Tomhas always been a very passionate, energetic and prepared advocate for his clients.Judge Callahan especially remembers Tom to be highly effective in humanizinghis clients, making sure that everyone in the courtroom knew that his clients werepeople worthy of dignity and respect. Judge Callahan misses Tom and all the positivetraits he brought to court now that he is no longer practicing in Milwaukee.Assistant United States Attorney Michelle Jacobs says that from her perspectiveas a prosecutor, Tom is the perfect choice to receive this award. She said she wasalways happy to see Tom walk into court or to hear that he was going to handle acase she prosecuted. She says Tom is the kind of attorney and public servant whomakes us all better lawyers; he knows instinctively which battles to fight, fights fairlyand strenuously for his clients, is great in court, on paper, and in judgment, and despitethe difficult and sometimes very emotional work, does it with a sense of grace,integrity and humor that makes the system and all participants in it better.Tom is highly dedicated to the defense of indigent persons accused of crime infederal court, is generous with his time, and untiring in his devotion to his practice and his family. Tom is a unique and valuable assetto his clients, the federal courts, his office, and the entire bar of attorneys who practice criminal defense. He is truly deserving ofthe Robert W. Warren Public Service Award.Hon. Susan V. Kelley, U.S. Bankruptcy Court, Eastern District of WisconsinRecipient of the Judge Dale E. Ihlenfeldt Bankruptcy AwardThe Eastern District of Wisconsin Bar Association is honored to announce that the recipient of the 2011 Dale E. IhlenfeldtBankruptcy Award is the Honorable Susan V. Kelley.Judge Kelley is well-known to both bankruptcy practitioners in Wisconsin and toher colleagues on the bench around the nation. She earned her undergraduate degreefrom Marquette University, and her J.D. from the Columbus School of Law at theCatholic University of America in Washington, D.C. She began her bankruptcy careerby clerking for the Honorable Glenn Goldburn on the Bankruptcy Court for the Districtof Maryland.In the ensuing years, Judge Kelley wore several bankruptcy practitioner hats,including serving as a trustee. She earned a certification as a Business Bankruptcyspecialist from the American Board of Certification. She was chair of the State Bar ofWisconsin’s Bankruptcy Insolvency and Creditors’ Rights Section for four years, andserved on the Board of Governors of the State Bar. She has edited the ABI 7th CircuitBankruptcy Case Updates and authored the Debtor-Creditor Law chapter of the AnnualSurvey of Wisconsin Law for ten years. In addition, she is a prize-winning cook,having won numerous ribbons at the Wisconsin State Fair.Since she joined the bench, Judge Kelley has improved the operation of the courtand the practice of bankruptcy law in the Eastern District in a variety of ways. After

the passing of beloved Chapter 13 trustee Louis Jones, Judge Kelley founded the“Lou Jones Breakfast Club.” The second Tuesday morning of every month, JudgeKelley hosts bankruptcy lawyers (mostly Chapter 13 practitioners) for an hour-longCLE program in her courtroom on a topic of interest to the bar. This “club” notonly provides topical education for bankruptcy attorneys, but allows them to networkas well.EDWBAEASTERN DISTRICT of WISCONSINBAR ASSOCIATIONSeveral years ago, Judge Kelley became concerned about the number of pro se debtors struggling to make their way through theEastern District bankruptcy courts. She created, with the help of attorneys Andy Herbach and Marie Nienhuis, the BankruptcyHelp Desk, a service where volunteer lawyers come to the courthouse once a week and answer questions for pro se Chapter 7 debtors.Judge Kelley has spent countless hours working with the members of the Clerk’s Office staff to update and modernize forms,design deficiency notices, and ensure that the Clerk’s Office procedures conform with the rules and the Bankruptcy Code. She hasbeen involved in educating school students on managing finances. She has taught bankruptcy at Marquette Law School. She now isthe editor of the seminal treatise, originally authored by Judges Ginsberg and Martin, on bankruptcy.Most recently, Judge Kelley has been working with members of the local bar to establish a mortgage modification mediationprogram, in an attempt to help debtors in Chapter 13 cases connect with mortgage lenders to attempt to negotiate modification oftheir mortgage loansFor her tireless efforts on behalf of the citizens of the Eastern District, the EDWBA salutes and honors Judge Susan V. Kelley.L. William Staudenmaier, Of Counsel, Cook & FrankeRecipient of the Judge John W. Reynolds Community Building AwardL. William Staudenmaier is a retired shareholder and of counsel to the Milwaukee law firm of Cook & Franke. A tenaciouslitigator, Bill has tried over 200 jury cases, over fifty bench trials, and argued over forty appeals. Bill also represented the WisconsinEthics Board in prosecuting numerous ethical violations, including several high profile and challenging cases. Bill is a Fellow of theAmerican College of Trial Lawyers, and received his undergraduate and law degrees from Marquette University.Bill has an extensive record of professional and community service. For example,when Legal Services of Northeastern Wisconsin filed a federal consumer classaction on behalf of hundreds of low-income Wisconsin consumers, Bill agreed torepresent the class, and spent hundreds of hours to bring the case to a successful settlement.Dan Idzikowski (now Assistant Dean for Public Service at Marquette) alsoworked on the case, and agrees that Bill’s “commitment to the poor, in word anddeed, is considerable.” Bill received the State Bar of Wisconsin’s Pro Bono Award in1995, and later served on the State Bar’s Access to Justice Study Committee. On amore grass-roots, community level, Bill has been a regular volunteer literacy tutor atthe Adult Learning Center for many years. Bill’s commitment to service has beenrecognized by other local organizations, and he is a past recipient of the Vatican IIAward from the Milwaukee Archdiocese.But this list of service, accomplishments and awards does little to convey thesubstance of the man in person, and what it was like to work with (or against) him. In the court room, with his distinctive crew cut,ready-to-fight stance, clear voice and precise cross-examination skills, Bill projected a formidable and memorable image.Throughout his career, Bill also served as a demanding and appreciated mentor for many Milwaukee trial attorneys. Woe be onthe young associate who was unwilling to bring full attention and dedication to a file that Bill entrusted to him or her. Bill expecteddedication to the client’s cause, but also encouraged attorneys to show a dedication to serve the profession and the community aswell.Bill kept a demanding office schedule, usually arriving before everyone else in the firm (after a good morning workout andbreakfast at the MAC). He was known to chide associates for their occasional suggestion that some personal matter might requiretheir brief absence from the office, on the grounds that there was precedent for not letting trivial personal events interfere with theadvancement of justice (“Well, maybe your wife is having a baby, but I was in court prosecuting murderers when my wife Kathy wasin the hospital handling the birth of my first two, and they turned out OK”). The late Friday afternoon assignment with Mondaymorning deadline, however, was usually given with the opening caveat, “Consistent with your obligations and responsibilities to yourfamily this weekend, I need you to ….”Bill has been an inspiration to generations of lawyers in Milwaukee and continues to be an able promoter of a strong community.

EDWBAEASTERN DISTRICT of WISCONSINBAR ASSOCIATIONPRESORTEDFIRST-Class MAILU.S. POSTAGEPAIDMILWAUKEE, WIPERMIT NO. 3207424 East Wells StreetMilwaukee, WI 53202EDWBA Annual Meeting RegistrationCLE & LUNCHEON___ Law clerk/Law students - $30___ Government - $50___ Members - $75___ Non-members - $110LUNCHEON ONLY___ Members - $45___ Non-members - $50___ 8-person table - $350 (Please attach listof names)$______ TotalName:Address:City/State/ZIP:Phone:Fax:Firm:E-mail:CLE ONLY___ Members - $55___ Non-members - $70___ I will join the EDWBA for the 2011-12membership year - $45 (This permitsyou to attend the event at member rate)Please make checks payable to the EDWBA, and send to:EDWBA, 424 East Wells Street, Milwaukee, WI 53202To receive a refund, notice of cancellation must be received before 5 p.m. on April 1, 2011.Questions? Contact Katy Borowski, kborowski@milwbar.org or 414.276.5933For more program information please visit www.edwba.org