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Courts (and the legal field in its entirety) should choose civility

By: GREGG HERMAN//March 16, 2023//

Courts (and the legal field in its entirety) should choose civility

By: GREGG HERMAN//March 16, 2023//

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Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected].

There are frequent reminders for lawyers in Continuing Legal Education (CLE) programs and articles on the importance of civility among adversaries. Civility, like all good lessons, should flow from the top down, as children learn from their parents. In law, that means civility starts with the judges and court commissioners.

Recently, the Wisconsin judicial oversight panel dismissed a complaint against Supreme Court Justice Jill Karofsky for the judge’s sarcastic comments to one of former President Donald Trump’s lawyers. In doing so, the panel expressed concern about the justice’s actions and warned her to remain neutral and avoid making sarcastic remarks from the bench.

According to reports, during oral arguments in a case involving challenges to the 2020 election Justice Karofsky, among other things, accused the lawyer for Donald Trump of trying to protect his “king.” She also told the lawyer that suggesting the election was marred by fraud was “nothing short of shameful.”

While judicial complaints are confidential under Wisconsin law, the complaint became public because Justice Karofsky made it so by releasing documents to The Associated Press.  Apparently, she was proud enough of the complaint to go public with it.

While I’m not naïve enough to think that oral arguments don’t involve some posturing (I had my own horrible experience with then-Justice Kelly while representing the Office of Lawyer Regulation (OLR) and he dominated oral arguments by attacking the OLR on an irrelevant point), they are designed to be an exchange of views regarding the merits of the case, not an exercise in a justice making political statements — and certainly not in being sarcastic. Such actions do nothing to advance the debate on the issues in the case or the reputation of the legal system in general.

One of the pleasures of my new part-time job as a Milwaukee County assistant district attorney is seeing the high degree of patience and respect which the criminal judges, court commissioners and their staffs treat participants – including defendants. This was not true in my first “go around” as an ADA almost 40 years ago. Back then, experiences with grouchy judges (hey, you wanted the job!); inappropriate, especially sexist comments; and a hostile atmosphere was not unusual.

My experience this time around is the opposite. I have yet to see an instance of a hostile atmosphere created by a court or staff. This is even more remarkable when you consider the incredible volume of cases and other pressures on the courts today. Regardless, without fail, every court (including the staff) in which I have served has shown exemplary behavior. The effect on lawyers and participants is to behave accordingly. And, by and large, they do.

Wouldn’t it be nice if civility flowed from the bottom up? As high as possible.


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