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.

One of the ugly parts of our legal system is the politics of electing judges. With an election for a Supreme Court justice in 2023, the ugliness has gotten an early start.

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. 

Few recent trials have attracted as much attention in the non-legal world than the Brooks trial in Waukesha. 

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?

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.

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the average number of cases to report on, between Wisconsin Supreme Court and Court of Appeals (published and citeable unpublished cases) was 15-20 per year. So far this year, there have been zero Supreme Court cases, one published Court of Appeals case and four citeable unpublished Court of Appeals cases.

After 38 years as a family law attorney with Loeb & Herman LLC, I have joined JAMS as a neutral in its Wisconsin office.

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.

The confluence of law and politics does not always equal good policy. A good example is the continuing efforts over the years to deal with the issue of the effect of deployed service people and the placement of minor children.

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.

On May 24, the Wisconsin Supreme Court, with two justices dissenting, dismissed an appeal of the Court of Appeals decision in State v. Lee, 2021 WI App 12, in a per curium “decision” of less than one page.

Here's a simple idea: Courts should serve the public. In particular, parties should be allowed to be divorced without the costs and inconvenience of a public court appearance.

Family Law Attorney Gregg Herman has been re-certified by The National Board of Trial Advocacy as a senior specialist in family law.

In law, as in many things in life, some ideas are better in theory than in practice. It is not uncommon that the Legislature, which has precious few lawyers (most sessions have ten or fewer lawyers out of 133 state Senators and Representatives, and almost none of them has ever been in the private practice of law), passes legislation which sounds good on its face but has a different practical effect. The phrase which attaches to such legislation is “the law of unintended consequences.”

Last weekend, the CBS show “Sunday Morning” did a segment on lawyer advertising. Of course they showed clips from the over-the-top ads which seem to be mostly from Texas. The effect, as one who believes that the practice of law should be more of a profession than a business, was cringe inducing.

The first family-law case to be recommended for publication by the Court of Appeals in almost two years makes me wish that it would have been longer. Well, the good news is that when I write my end of the year column for 2022 highlighting bad decisions, I will have a good start.

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.

A few weeks out of law school, I got my dream job. After some short training, I was sent into court and given two instructions: First, don’t f**k up. Second, if you do f**k up, don’t let it get in the newspapers.

It’s time for my annual year in review – a look back at those new cases and statutes in family law which improve this area of law and those which, well, not so much.

There is a saying in sports that a tie is like kissing your sister. For an appeal to the Wisconsin Supreme Court, however, a tie would be like kissing your sister after having paid her a lot of money.

For about the last thirty years, my side job has been to serve as retained counsel, first for BAPR, then for OLR.

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.

One of the expected consequences of the COVID epidemic was disputes between parents regarding parenting children.

In a previous column, I commented that one of the few silver linings of the dark, dark cloud called Covid-19 is that it has led to an increased use of technology, such as Zoom, and the resulting avoidance of unnecessary costs.

There is a saying that you cannot be a little bit pregnant. Well, apparently, you can be a little married.

On Jan. 13, 2020, the Wisconsin Supreme Court will hear oral arguments on the question of who can be friends with a judge – at least in the cyber world. The implications of the case may affect the use of ESM (Electronic Social Media) by judges and bring into play the adage “bad facts make bad law”.

The greatest change in the practice of family law in recent years has been the incredibly higher rate of resolution versus settlement.

Among the changes in the practice of family law over the years (and there have been many) none have been as significant as the transition of the practice from litigation focused to settlement focused.

When it comes to employment choices, having a support obligation means that the good ol' USA is no longer a free country.