By Attorney Gregg Herman
October 17, 2022
Without question, the biggest change in family law in my years of practice is the trend to settle cases rather than litigate. What was once routine has become rare.
For objective proof, since fewer litigated cases result in fewer appeals, we can look at the dwindling number of appellate cases in this field. Since I arrange case law update programs for the AAML, State Bar family law section and state court judges, I have those numbers.
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the average number of cases to report on, between Wisconsin Supreme Court and Court of Appeals (published and citeable unpublished cases) was 15-20 per year. So far this year, there have been zero Supreme Court cases, one published Court of Appeals case and four citeable unpublished Court of Appeals cases.
While this is good for parties going through a divorce (on the belief that settlement is almost always better than litigation), it creates a problem more severe than my trying to fill in time for my case law update program. Citeable cases give lawyers an objective analysis to convince clients to settle or to convince mediators or judges at pretrials to convince the other side to settle. After all, if a client knows in advance the results of litigation, they will likely choose to settle for those results, rather than litigate and end up in the same place.
So, cases serve a valuable role in the practice. Since my practice is now transitioning from representation to mediation (I have joined JAMS as a neutral in their Wisconsin office) I have decided to make my electronic compendium of Wisconsin Family Law Cases for the past 50 years available to everyone for free. This product took immense efforts, by myself and various associates over the years and is, in my never-to-be-humble opinion, indispensable for research in this field in this state.
My hope is that with very few new cases coming down, past cases have even more importance in settlement. So, if you have any questions or are doing any research in family law, go to: www.wifamlaw.com. I’ll keep the site up-to-date and I hope it helps practitioners and courts everywhere.