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A letter to Wisconsin’s trial court judges

By: dmc-admin//January 1, 2007//

A letter to Wisconsin’s trial court judges

By: dmc-admin//January 1, 2007//

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Herman
Gregg Herman

A few weeks ago, I decided that the newly elected state legislature could use some advice on family law legislation, whether they wanted it or not. After that, I extended my advice, again without invitation, to the appellate courts.

So that trial courts don’t feel left out, this week, even though they have not asked and are probably not interested, this is my effort to make them feel included.

Dear Circuit Court Judges:

Here is my advice to make 2007 a better year for all of us who practice in your courts. (Please accept this in the helpful manner intended, especially if I appear in front of you!)

Have productive pretrials. All good lawyers want to settle cases. While we might tell our clients a hundred times that a court will not give lifetime maintenance in a six-month marriage, sometimes they don’t believe us. Being able to say that a court made such a comment at a pretrial is often a huge help.

Many courts already conduct productive pretrials. Some, however, keep pretrials to scheduling matters only or don’t conduct pretrials at all. It seems that some judges are afraid of crossing the line between promoting settlement and prejudging a case. Actually, it is an easy line to avoid crossing by making clear that the court’s comments are simply that — comments, not a ruling or decision. Since most decisions in family law are purely discretionary, knowing ahead of time how a court is likely to exercise its discretion can help lawyers greatly in convincing a client that a trial is futile.

Have firm trial dates. The worst way to settle cases is the day of trial, but sometimes it is the only way. Some clients are in denial over the end of the marriage or refuse to engage in meaningful, reasonable settlement negotiations. The only way to resolve such cases is through firm trial dates. Failure to do so unfairly changes the negotiating power balance in favor of the recalcitrant or unreasonable spouse.

Sometimes, a party needs to know that a trial is the only other option and that it will happen in the not-so-distant future. In such cases, a firm trial date may very well be the necessary catalyst to settle the case.
Don’t be too rigid with trial dates. Yes, there are times where lawyers need pressure from the court to settle cases, but, as stated above, the overwhelming majority of lawyers well understand the maxim that “a bad settlement beats a good trial.” Sometimes, however, an adjournment is in the best interests of the parties are their children. When both lawyers agree to seek an adjournment, there is usually a good reason.

They know the case and the parties better than the court and the court calendar can survive an adjournment. Don’t let your calendar trump the interests of the parties and their children. The court should serve the participants, not statistics.

Talk to the parties. Some courts give a little talk to the parties after a pretrial with them, encouraging compromise. Some courts give a little talk to the parties after granting the divorce, encouraging future cooperation.

I used to think these speeches were contrived and worthless. Then, I found that my clients remembered those little talks and speeches long after they forgot anything I told them. Wearing that black robe engenders respect and demands attention.

Recognize the cost factor. Practicing family law is a difficult way to make a living. We deal with emotional clients, often with limited financial resources. We have large overheads that need to be fed whether clients pay us or not. So, please don’t leave lawyers waiting in the hallway for hours unless absolutely necessary. Often, that time comes out of our pockets. Likewise, if a party violates a court order causing costs to the other side, apportion the costs — all of them — to the guilty party.

Protect the GALs. Most GALs are losing money when doing the most valuable service in the family law courts — trying to help children. Seventy dollars per hour may sound like a lot of money, but not when overhead is double that amount.

“Protect” GALs does not mean agreeing with each of their recommendations. It does mean that their recommendation should be given a great deal of credence and their fees should be protected.

Be patient with us. Of course there are exceptions to every rule, but the vast majority of family lawyers are highly ethical and professional. If we are having a bad day, please talk to us privately, not in front of our clients. One of the greatest services a trial court can give to a lawyer is to gently and appropriately let us know how our behavior looks to you.

Sincerely,

Gregg Herman

P.S. So that everyone is equally offended, next week’s un-asked-for advice will be to divorce lawyers. Stay tuned.

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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