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Ties are for losers

By: GREGG HERMAN//October 17, 2023//

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].

Ties are for losers

By: GREGG HERMAN//October 17, 2023//

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Sports, being highly sensitive to public opinion, has greatly reduced the number of ties.  Football games have overtime.  Golf has extra holes.  Hockey and soccer (well, some soccer games) have shootouts.  Even baseball, the last sport to adjust to modern temperament, now has a “free” runner at second base in extra innings so the teams can get to a resolution faster.   While I suppose some may argue that a tie might be better than losing, it is certainly not more meaningful.

Apparently, however, the Wisconsin Supreme Court has not gotten the message that people don’t like ties (not that I haven’t tried – this is at least the second time I’ve written about this issue).   Most recently two cases released on the same day, October 10, 2023, resulted in a 3-3 vote.  In one, State v. McBride, 2021AP311, the result is that the decision of the court of appeals is “affirmed by an equally divided court.” In the other case, State v. Seaton, 2021AP 1399, the result was for the court to vacate its acceptance of certification and remand the matter to the court of appeals.  In both cases, the tie was due to the new Justice, Janet Protasiewicz, not participating, undoubtedly because she was not on the bench at the time of oral argument.

The problem is that this is not a victimless crime (OK, calling it a “crime” is a bit melodramatic). Having argued several times before the Wisconsin Supreme Court, I can tell you it is a majestic experience (with one exception, but that is another story!)

Preparation is crucial.

Besides the hours and hours of drafting and revising briefs, good lawyers have practice arguments and spend substantial time preparing potential answers. Then, there is the emotional energy of reliving the arguments and waiting for the decision. All to find out there will be no decision? What a waste! And that isn’t even considering the time wasted by the court itself in reading the brief and conducting oral arguments.

Moreover, it is a waste for which there is an easy cure.  First, it no clear why Justice Protasiewicz could not bring herself up to speed by reading the briefs and listening to the recordings (or read the transcripts) of the oral arguments.  True, it would mean that she could not pose questions or her own, but I’m not sure if in the history of appellate courts a judicial mind has ever been changed due to the answer to a question posed by that justice.  Perhaps that has happened, but that would be a small risk to avoid the waste of a tie vote.

Second, many states allow a lower court justice to be selected on a rotating basis to avoid a tie vote.   It is beyond my understanding why the Wisconsin court system has rejected that approach.   It can’t be for lack of bathrooms as a male justice would be pretty much by himself.

This is not the first time I’ve written about this issue: “Kissing Your Sister:  There Should be No Ties in Litigation.” Wisconsin Law Journal November, 2021. In that article, I quoted Judge Don R. Willett of the United States Court of Appeals, Fifth Circuit, who wrote “Game seven of the World Series would never end in a dismal tie.   But America’s other national pastime—suing people—can end that way. … [S]talemates, while infrequent, subverts the fundamental—and institutional—purpose of a supreme court: to be supreme and to speak supremely…All that time, money, and energy—by the litigants and by the Court itself—with nothing to show for it.”


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