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.
The case presents some incredibly difficult legal and public policy issues. How difficult? In 2012, the late Justice Antonin Scalia called a dispute arising from the adoption of Native American twins the most difficult case he ever had during his time on the Supreme Court.
Few recent trials have attracted as much attention in the non-legal world than the Brooks trial in Waukesha.
Most of the comments relate to either praising the patience of Judge Dorow (much deserved) or criticizing the legal system for allowing such a circus to occur in the first place. The answer to the latter, as discussed in a previous column, is the constitutional right of a criminal defendant for self-representation.
The result, as anticipated, is that Mr. Brooks was
Continue Reading Pro Se Representation Comes at a Cost
A number of years ago, I dedicated a column to “Voices of Children – When Should They Be Heard?” Wisconsin Law Journal, January, 2016. In that article, I noted that in Wisconsin, unlike some other states, children never come to court and testify – either in open court or in chambers – regarding their preferences for custody or placement. Rather, Wis. Stat. §767.407 (4) requires the guardian ad litem to “consider, but not be bound by, the
Continue Reading Out of the Mouths of Babes
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.
Dealing with a pro se defendant creates a variety of challenges
Continue Reading The right to self-represent
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By Attorney Gregg HermanOctober 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,
Continue Reading A resource for family law cases
After 38 years as a family law attorney with Loeb & Herman LLC, I have joined JAMS as a neutral in its Wisconsin office.
JAMS, which was founded in 1979, is the world’s largest ADR provider. Its panel includes more than 400 retired state and federal court judges, attorneys and other ADR professionals. I will be their second Wisconsin neutral, joining Judge Charles Clevert, a retired U.S. District Court judge.
As a result of joining JAMS, over the next
Continue Reading Closing a Law Practice: Not as Simple as it Seems
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By Attorney Gregg HermanSeptember 14, 2022
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.
In State v. Liebzeit, 2021AP9 the court of appeals reversed the trial court for modifying a sentence of life imprisonment without parole. The same
Continue Reading Batter up for some judicial activism
Perhaps the most common question asked of me by friends, neighbors and family regarding the legal system is “How do I get out of jury service?”
Even before COVID, few people felt like giving up a day or two of their lives for little pay and a lot of boredom. The result is difficulty finding enough bodies to fill the 12-seat jury box (14 if alternates are selected). COVID has made a bad situation worse.
The Milwaukee Bar Association
Continue Reading Finding Jurors: We Need a way to Overcome Common Concerns About Public Service
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.
The most recent effort in Wisconsin occurred on March 13 when 2021 Wisconsin Act 161, or the Uniform Deployed Custody and Visitation Act, gave rise to Wis. Stat. section 324.21. The new law establishes a process
Continue Reading Custody and Service People: New Law Not Perfect but Does Have Good Elements
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.
The other case, Dobbs v. Jackson Women’s Health Organizations overruled Roe v. Wade. No, I’m not brave enough to
Continue Reading The U.S. Supreme Court and Politics
Though I try to discuss new topics in each of my columns, every once in a while, there is something which merits further discussion.
Such is the case with 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.
Wis. Stats. §767.235(1) requires that “…all hearings and trials to determine whether judgment shall be granted…shall be before the court.” However, this is
Continue Reading Courts meant to serve the public
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By Attorney Gregg HermanMay 5, 2022
In all of the columns which I have written for this publication over the years (and there have been many) none have elicited more an angry response than my article on the Court of Appeals decision in Valadez v. Valadez, 2021AP1500: “The Valadez case: A bad start to the year.”
My article criticized the Court of Appeals for reversing the trial court’s custody
Continue Reading VALADEZ – PART 2: Returning to the subject of my most debated column
The former news talk show “The Mclaughlin Group” used to give an annual award for the “Best Political Theater.” If that show was still on the air, the nomination hearings for Ketanji Brown Jackson would win hands down.
Amid the political posturing, the most disturbing occurrence was the the criticism lobbed at her over her representation of bad people, aka, criminals. For example, Sen. Josh Hawley, a Republican from Missouri, said that judicial nominees who have served as public
Continue Reading The Brown Jackson nomination hearings and what they say about the duty to represent bad people
Magnifier and documents. Information search.
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
Continue Reading Will Courts Really Enforce Proposed Financial Information Exchange Rules?
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.
Let me start by conceding the obvious. First, according to the United States Supreme Court, lawyers have a 1st Amendment right to advertise. Second, even before the
Continue Reading Lawyer Advertising: Is it Hucksterism or a Valid Business Practice?
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.
On December 29, the District 2 Court of Appeals issued its opinion in Valadez v. Valadez, No. 2020AP1006, which reversed an order by the Honorable Michael
Continue Reading The Valadez case: A bad start to the year