Court reverses out-state judges more often

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During the nine years that the Wisconsin Law Journal has reviewed trial court reversals, one thing has remained constant; the judges in Milwaukee County get reversed less than out-state judges.

In 2008, for example, all three judges with double-digit affirmances, and no reversals were from Milwaukee County. In both the previous two years, it was another Milwaukee judge, David Hansher, who had the most affirmances without a reversal.

That is not always the case; there have been several years when the judge who topped the charts was not from Milwaukee. Even those, however, generally come from larger counties in southeast Wisconsin.

A review of the total numbers collected since 2000 shows that Milwaukee County judges get reversed less than out-state judges. In fact, judges in counties covered by the District III Court of Appeals in Wausau, get reversed 50 percent more often.

Among active circuit court judges, since 2000, those in District I (Milwaukee County) have been affirmed 1,960 times and reversed 424 times, an 82 percent affirmance rate. In contrast, trial judges in District III have been affirmed 1,275 times, and reversed 480 times, only a 73 percent affirmance rate.

Examining the state by judicial district shows similar patterns. District 1 (Milwaukee County), at 82 percent is tied for the highest percentage of affirmance with District 4 (Sheboygan, Fond du Lac, Winnebago, Calumet, and Manitowoc Counties). Next highest, at 80 percent is District II (Racine, Walworth, and Kenosha Counties).

Meanwhile, the district with the lowest percentage of affirmance is District 10 in the far northwest part of the state — 69 percent. Second lowest are District 9 (north central) and District 7 (southwest), both at 72 percent.

Institutional advantages in the larger counties in Districts I and II likely explain the disparity.

Judges in more populous counties have specialized court calendars, hearing the same types of cases day in and day out. A judge who is the only judge in the county will hear every type of case.

Marathon County Judge Gregory E. Grau, chief judge for the 9th District (Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas counties), acknowledged that the diversity of a one-judge county’s calendar may explain the difference.

“Conversations come up with judges in single-judge counties, in which everyone has a general case load, and they may only see a particular legal issue once in their careers,” Grau said. “I have heard many judges say that these are the types of cases that tend to get reversed.”

“A judge may have expertise in some areas of the law, but none in another area. When a case in that area comes up, I’ve heard judges say that’s when they have difficulty,” Grau added.

To assist new judges, Grau said, the court system has a mentoring program, in which new judges spend weeks sitting on the bench with veteran judges. The program is set up to try to expose them to different types of cases. The state also has judicial education in the first year, and a weeklong judicial college.

David E. Sunby, an attorney in Habush Habush & Rottier S.C.’s Wausau office, agrees that judges in one-judge counties are more likely to be reversed, because of the nature of their calendars.

Such judges may only preside over one civil jury trial a year, Sunby said, and when a novel issue arises, they have to “reinvent the wheel” for themselves.

Sunby said that almost all of his appeals presented an issue of first impression for the trial judge hearing the case.

He also noted that many attorneys in rural areas are general practitioners, rather than specialists. Because Sunby does nothing but personal injury law, he said he doesn’t face that many new issues, but a general practitioner is more likely to be addressing any given issue for the first time.

Sunby further noted the background of most rural judges, who he said generally come from a criminal law background, either as prosecutor or defense attorney, or from a county’s corporation counsel office. “Even if they are good judges, they are generally not familiar with civil personal injury law.”

Sunby practiced for seven years in Milwaukee and Dane counties, and has practiced in Habush’s Wausau office for the last 17.

Click here to see how the Wisconsin Circuit Court judges fared in the Wisconsin Court of Appeals and in the Wisconsin Supreme Court in 2008 (PDF).