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Issues, arguments, and objecting to telephonic testimony

Marquette County v. T.F.W., 2017AP5, 6/8/17, District 4 (1-judge opinion, ineligible for publication); case activity

T.F.W. objected to the having his treating psychiatrist testify by telephone at his Chapter 51 extension hearing. He cited both §885.60 and “due process.” He did not specifically cite §807.13(2)(c), which outlines 8 factors a trial court should consider before allowing telephonic testimony. The court of appeals held that T.F.W. forfeited his §807.13(2)(c) argument perhaps without realizing (or perhaps not acknowledging) that the statute was enacted to protect due process rights.

The court of appeals held:

¶12 T.F.W. correctly relates that he objected to telephonic testimony before trial, both orally and in writing. However, as the County asserts, he based his objection only on the violation of WIS. STAT. § 885.60 (notice requirement for video conferencing) and due process. T.F.W. does not show otherwise. To the extent that T.F.W. is arguing that he preserved his argument that the circuit court erroneously failed to find good cause by arguing improper notice, I disagree. “[T]he forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court.” See Townsend v. Massey, 2011 WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155.

¶13 Application of the forfeiture rule is particularly apt here, where the circuit court was not given the opportunity to weigh the eight considerations listed in WIS. STAT. § 807.13(2)(c) for determining whether good cause has been shown. See Townsend, 338 Wis. 2d 114, ¶25 (“[T]he fundamental forfeiture inquiry is whether a legal argument or theory was raised before the circuit court, as opposed to being raised for the first time on appeal in a way that would ‘blindside’ the circuit court.” (quoted source omitted))

The court of appeals then held that under W.J.C. v. County of Vilas, 124 Wis. 2d 238, 369 N.W.2d 162 (Ct. App. 1985) allowing an examining physician to testify by phone in a Chapter 51 case does not violate the subject’s due process rights.  ¶¶15-16.

The Wisconsin legislature enacted §807.13(2)(c) after (possibly in response to?) the decisions in W.J.C. and Town of Geneva v.Tills, 129 Wis. 2d 167, 384 N.W.2d 701 (1986). John L. Kuehn, Speaker-Telephone Testimony in Civil Jury Trials: The Next Best Thing to Being There?, 1988 Wis. L. Rev. 293 (1988). Among other things, the statute provides that before allowing a witness to testify by phone, the trial court should consider whether a person’s physical liberty is at stake, whether allowing telephonic testimony would cause undue surprise or prejudice, permit effective cross-examination, undermine the importance of observing a witness’s demeanor, and so forth. Thus, it seems like objecting on “due process” grounds would implicate these same considerations.

But there’s another difficulty with this decision. While the court of appeals is not required to address an argument first raised on appeal, it can if it wants to. Townsend, ¶23, One might hope that a litigant’s physical liberty interest and due process rights might justify a wee bit of trial court surprise. Heck, SCOW is willing to address new arguments–even if neither party briefed them. See e.g. this post.


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