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A Look Back at 2023’s Debacles in the Law

By: GREGG HERMAN//January 16, 2024//

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].

A Look Back at 2023’s Debacles in the Law

By: GREGG HERMAN//January 16, 2024//

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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].

One of the fun parts of writing this column is having free shots at the legislature and the appellate courts regarding their actions (or in one case, inaction) during the year. Not willing to be satisfied with just one free shot, my first column of each year revisits my prior year’s columns and reviews my opinions.

“No problem can withstand the assault of sustained thinking.” — Voltaire

In January, I discussed the proposed constitutional amendment that was designed to require a judge to consider a defendant’s potential risk to public safety, including his or her criminal history, when setting bail. The amendment’s proponents claimed that cash bail is set only to ensure the person appears in court and does not consider those factors. How silly of them.

Of course, the amendment was approved by voters and is now part of the Wisconsin Constitution. The good news is that, unlike some other actions by the legislature, this one does no harm. But it was a solution in search of a problem. Do lawmakers really think that judges ignored those factors prior to the amendment? If so, it shows the lack of knowledge of the criminal court system by the legislature (very few of whom are actually lawyers). As I said in my original article, politically this proposed amendment makes great sense. In real life, it is completely and totally unnecessary.

To rephrase Voltaire, we had neither a problem nor sustained thinking.

“Old age is always 15 years older than I am.” —Oliver Wendell Holmes

In March, I discussed the case of 95-year old Judge Pauline Newman, the oldest active federal judge in the nation. The chief judge of the U.S. Court of Appeals had suggested that Judge Newman consider retirement, since some of Newman’s fellow judges accused her of “paranoid” and “bizarre” behavior.

Newman said she’s fine and it’s her colleagues who have lost their minds. So, of course, she filed a lawsuit.

Here’s an update:  On September 20, 2023, Judge Newman was suspended by the Federal Circuit’s Judicial Council from hearing new cases for one year. Of course, the word “retirement” is not in the vocabulary for many holding powerful offices.

Yeah, you know where I’m going with that. We’re about to see a presidential election with two nominees who should be running for the board of directors of their old age homes. That’s assuming old age homes have boards of directors.

“Winning isn’t everything; it’s the only thing.”

Everyone in Wisconsin knows who said that!

In August, my target was personal injury lawyers who advertise using some version of “we don’t get paid until we win your case.” I questioned the definition of “winning,” as I assume that these advertising lawyers mean that any settlement is “winning.”

I’m not sure that would be my definition if, as a plaintiff, the settlement after the contingency fees was less than I would have netted settling the case on my own. Perhaps that’s too subtle for advertising. Or perhaps the issue is, who’s really the winner?

“I’m Not Ready to Make Nice.”

Country music fans know who said that. For the rest of us, it was the Chicks, f/k/a the Dixie Chicks.

I chose a larger target in September: the Wisconsin Supreme Court. I tried to remind them they adopted a civility code, Supreme Court Rule Chapter 62, which includes judges in its scope: “Adherence to standards of professionalism and courtesy, good manners and dignity is the responsibility of each judge[.]” Statements several justices which were made public related to court procedure did not seem to comply with this standard.  So, I thought it was a good idea to remind the justices that they were included in their own standards.

That did a lot of good. Not.

“No problem is so formidable that you can’t walk away from it.” –Charles M. Schulz

That is, unless you’re the Court of Appeals. They sprinted away from an interesting dilemma.

In November, I criticized the appellate court for their decision, er, rather non-decision, in Potter v. Circuit Court, 22AP1396.  The court avoided considering the competing issues of the rights of defendants to have witnesses excluded from a trial so their testimony is not tainted by hearing other witnesses, versus the rights of victims under Marsy’s law, WIS. CONST. art. I, § 9m., a recent amendment to the Wisconsin Constitution. Rather than engage in what could’ve been a fascinating discussion of the merits of two competing and worthwhile interests, the appellate court dismissed the appeal essentially on technical grounds.

You might say that the Court of Appeals cared “peanuts” about a very real problem happening in the Milwaukee criminal courts every single day.

“I resolve in 2024 to be kinder in my column. Not.” –Gregg Herman

Here’s one prediction for 2024 of which I am confident: The legislature and the courts will provide ample fodder for my columns during the year!

And if any readers have any comments, opinions or suggestions for columns, please contact me at [email protected]. Happy New Year to all! Even those mentioned above.

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