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Bablitch offers tips for lawyers

Newly-retired state Supreme Court Justice William A. Bablitch is carving out a new niche for himself offering appellate tips to lawyers at Michael Best & Friedrich LLP, his new firm, as well as to those outside his firm.

Speaking recently to two different groups of lawyers, Bablitch offered a number of suggestions for attorneys taking cases to the state’s high court. He noted the importance of simplifying petitions for review, taking time to provide context for the case before burying the court in details and treating the court as a body reviewing the law rather than as a jury hearing a case.

When petitioning the court for review, Bablitch said, lawyers need to realize that court commissioners will read those petitions and develop summary reports for the justices. That makes the proper framing of issues essential.

One of the most significant problems arises from including too many issues in the petition.

“If you get anything of value from my speech today — it’s to simplify, simplify, simplify,” Bablitch told a group of lawyers at the Civil Trial Counsel of Wisconsin’s 2003 Fall Convention. “It’s the proponents in front of us who make it the most understandable, who have a huge step forward in arguing before the court.”

Bablitch recalled a recent petition, which he provided some assistance with, where the attorney included too many issues. He finally convinced the attorney to cut out some of the issues and focus on one very strong issue, which benefited from the trial court’s findings of facts. The lawyer redrafted the petition focusing on the one main element.

The former justice also noted the importance of establishing a context for the court to review the elements of the case. Simply starting off with a detailed narrative without providing some context makes it difficult for the reader

“What you have to do is give the reader a context in which to know what facts are important and which are not,” Bablitch said, noting that’s a basic rule of good writing.

Another mistake, which he has seen lawyers make during his past 20 years on the bench is approaching oral arguments before the justices as they would an appearance before a jury. That includes focusing on emotional elements and introducing clients in an effort to gain sympathy. It does not sit well with the court.

“The fact is we pride ourselves on being a law-making court,” Bablitch said referring to his time on the state’s highest appellate bench. “And the job of the lawyer is to argue the law, not to try and stir us up into a froth and not to try and impress us with meeting their clients.”

He explained that the client is a vehicle for bringing issues to the court. But the court’s primary focus is on the issues of law pertaining to the case rather than the emotional elements.

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Introducing clients to the court does not impress, nor does it sway the justices. Some justices might actually infer that the case is weak with respect to the law, therefore the lawyer is introducing the client to distract from the weaknesses of the case.

He said, “The smartest lawyers bring their clients, set them somewhere behind the lawyer, so that we can tell who they are and then don’t say anything about them.”

As an example, Bablitch recalled a trial attorney who broke some of those rules when he first appeared before the court 20 years ago. He came into the process looking at the court as a jury.

“As his career went on, he changed and began to argue like an appellate lawyer,” Bablitch said. “And he was far more effective toward the end of my term than he had been at the beginning.”

The former justice spoke at the Civil Trial Counsel of Wisconsin’s 2003 Fall Convention and at the Dane County Bar Association’s September luncheon program.

Tony Anderson can be reached by emai
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