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Open letter to Wisconsin’s appellate judges

By: dmc-admin//December 6, 2006//

Open letter to Wisconsin’s appellate judges

By: dmc-admin//December 6, 2006//

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Herman
Gregg Herman

In my last article, I offered some unsolicited advice to the incoming Wisconsin Legislature. Surprisingly, the lawmakers have yet to express their gratitude.

In any event, to be fair, I thought I should likewise offer some unasked-for advice to appellate courts in family law cases.

Dear Appellate Courts:

If you have been reading this column over the years (evidently not), you are familiar with most of the following. Still, to synthesize the opinions of one practitioner:

1. Don’t tie the hands of trial courts. Family law cases do not come in one-size-fits-all packages. What makes the practice of family law so interesting is the infinite variety of experiences. As a result, most appellate cases afford trial courts wide discretion to fashion remedies that fit the individual circumstances of the case. When an appellate court ties the hands of a trial court, it has the effect of trying to force a square peg into a round hole.

2. Don’t tie the hands of the parties. Criminal law allows defendants to waive constitutional rights to a lawyer, a jury trial and other important rights. So, where there is no state interest, why should family law not allow parties to negotiate purely statutory rights? Although the opinion has been withdrawn for further consideration, a perfect example is in the recent case of Motte v. Motte, No. 2005AP002776 (Ct. App. Sept. 27, 2006, withdrawn Oct. 5, 2006), where the appellate court threw out two stipulations by the parties, one of which neither party even asked the court to reject. This is supposed to be a free country and, absent a state interest, fraud or other substantial overriding concern, going through a divorce should not change that.

3. Be careful with your use of words. Since law is merely semantics, your choice of words can be incredibly important. By means of example, in Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, Judge Paul Lundsten pointed out the confusion in terminology in prior court of appeals cases involving excluded property. These changes in terminology can be very confusing. While the Derr case goes a long way toward clearing up confusion in cases involving excluded property, it would be nice if no such confusion existed in other areas, either.

4. Fully consider all potential implications of your decisions. Recently, in Frisch v. Heinrichs, 2006 WI App 64, 280 Wis. 2d 739, 713 N.W.2d 139, the decision, reversing a contempt decision by the trial court may have prohibited a trial court from making whole an innocent party by holding that a contempt is purged when, for example, a late child support payment is made. Such a holding could wreak havoc by causing the innocent party to incur costs to secure a payment, which would not be compensable by contempt if the payment was made before a hearing date. Fortunately, the Wisconsin Supreme Court has granted review and, hopefully, will prevent such injustice from occurring.

5. End the stupid rule about not being allowed to cite non-published cases. It makes no sense that a trial court decision can be cited in an unrelated case for “what it’s worth,” while a non-published court of appeals decision cannot. If you don’t think this rule is stupid, imagine yourself in the following scenario (not a hypothetical, many of us have been there): You are representing a client on an appeal. There is an unpublished case on point that supports your case. You are explaining to your client that you are not allowed to tell the court of appeals about its own decision. Try that exercise with a straight face.

6. If you are going to continue that stupid rule. … OK, you are probably going to continue that stupid rule. In that event, use the rule for what it is intended — cases that are fact-intensive do not need to be cited.

Here is a simple rule: If it takes more pages to summarize the facts than it does to give the holding, it is probably a fact-intensive case.

As regular readers of this column know (there are regular readers, aren’t there?), it is far more frequent that your decisions receive approval than disapproval. So cheer up. For the most part, your decisions are consistent and well-reasoned.

Thank you for paying attention — and don’t hold any of this against me!

Sincerely,
Gregg Herman

P.S. Coming soon: Advice to trial courts — if I don’t chicken out!

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached by e-mail at gherman@ loebherman.com.

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