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Author Archives: GREGG HERMAN

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

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.

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Politics vs. real life. A living wage is a start

On Jan. 19, the Wisconsin Assembly gave a final approval to a proposed constitutional amendment that would, they claim, make it more difficult for violent criminals to get out of jail on bail. The proposal will go before voters where it will undoubtedly be ratified in the April 4 election.

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Looking back: The best and worst of 2022

One of my favorite columns is to review family law cases and legislation from the prior year. It gives me yet another opportunity to express my thoughts on the good and the bad that occurred. Fortunately for me as a columnist, there was enough bad to make this column (hopefully) somewhat entertaining as “good” tends to be boring.

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Competing rights and interests

On Nov. 6, the United States Supreme Court heard oral arguments in Brackeen v. Haaland, a case which presented numerous constitutional and legislative issues regarding the Indian Child Welfare Act or ICWA. 

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Out of the mouths of babes

While a child of 16 years with a car is going to make his or her own decision about placement, do we really want to give a 7 year old that authority?

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The right to self-represent

right to self-represent

In 1975, The United States Supreme Court held that a criminal defendant has a constitutional right to waive counsel and self-represent in a criminal case. Faretta v. California, 422 U.S. 806 (1975).  While the trial court has a responsibility to discourage self-representation, it cannot prohibit it. The result can be (and usually is) the circus occurring in the Waukesha trial of the Christmas parade driver Darrell Brooks.

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A resource for family law cases

Ten years ago, the average number of cases to report on, between Wisconsin Supreme Court and Court of Appeals (published and citeable unpublished cases) was 15-20 per year. So far this year, there have been zero Supreme Court cases, one published Court of Appeals case and four citeable unpublished Court of Appeals cases.

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Batter up for some judicial activism

The term “judicial activism” is commonly thrown around to disparage judges. It generally is used to accuse courts of being too aggressive or too liberal.  A recent court of appeals decision contains an element which raises an interesting question.

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The U.S. Supreme Court and politics

It would be pointless to write a column on the United States legal system and ignore the two significant cases which the court decided this week. One case, New York State Rifle and Pistol Association v. Bruen significantly expanded gun rights by striking down a New York law which restricted the right of New Yorkers to carry handguns in public.

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Look ahead to 2022 with family law

Last month’s column took a look back at the developments in family law for 2021. So, it seems appropriate to dedicate this month’s column to a look ahead to 2022.

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The high conflict divorce

My late partner, Leonard Loeb, used to say that every lawyer has at least one case which they think is the cause of most of their headaches and lost sleep. The lawyer thinks “as soon as that case is completed, my life will be so much easier.” But, naturally, as soon as that case does wrap up, there is another one with the same effect on the lawyer.

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BEING JUDGEY: Why we should pick the best qualified candidates for the bench

Nothing in our legal system is more important than judges. Cases proceed (or don’t proceed) and resolve largely on the basis of the individual proclivities of the person wearing the robe. A good judge can make a complex, difficult case into a resolvable one and a bad judge can do the opposite. The judge sets the tone for civility and ...

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How support has changed in the age of COVID-19

Although I’m normally not one to bemoan the “good old days” gone by, there are instances in which I do. And given the unprecedented and unusual circumstances surrounding the COVID-19 outbreak as it affects the legal system, one such instance comes to mind.

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A MARRIAGE STORY: Does recent film offer Hollywood view of divorce, or is it close to real life?

Although I consider myself a movie buff, I typically dislike movies about lawyers and the legal system. For example, although Paul Newman (a great actor) was nominated for the Academy Award for playing a lawyer in “The Verdict”, I found the movie irritating (at best). Apparently, the rules against ex parte contact with the court were unknown to the script writers.

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