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Are there more beautiful words in the practice of law than a judge saying: “The parties have resolved their case?”

Those are the words spoken by Delaware Superior Court Judge Eric Davis in announcing that Fox News had agreed to pay Dominion Voting Systems nearly $800 million to avert a trial in the voting machine company’s lawsuit.

Dominion had sued Fox for $1.6 billion alleging that the news outlet had damaged the company’s reputation by making phony conspiracy theories…
Continue Reading Meditating on Mediation

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Much as I like to vary topics in my monthly column, the recent Wisconsin Supreme Court election presents too much fodder for comment and is too important to simply let it go.

First, the good news: The election means no more ads! I am so sick of the other side being called an extremist and “he/she is not for us” (whatever that means). There is a saying that the only good thing about banging your head against the…
Continue Reading The Good, Bad, Worse News to Come from the Supreme Court Election

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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.

Recently, the Wisconsin judicial oversight panel dismissed a complaint against Supreme Court Justice Jill Karofsky for the judge’s sarcastic comments to one of former President Donald Trump’s lawyers. In…
Continue Reading Courts (and the legal field in its entirety) should choose civility

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By Attorney Gregg HermanFebruary 21, 2023

For a number of years, I’ve put together a family law cases update program for the American Academy of Matrimonial Lawyers, the State Bar Family Law Section and the state family court judges.
For the last several years, I have noted the dwindling number of family law cases decided by the appellate courts. Last year set a new record low – there were…
Continue Reading The age of settlement: Peace rather than war

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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.

The amendment would require a judge to consider a defendant’s potential risk to public safety, including his or her criminal history, when setting bail.  According to its proponents,…
Continue Reading Politics vs. Real Life. A Living Wage is a Start

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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. So here goes:

My first column of 2022 was on Valadez v. Valadez, 2022 WI App 2, which reversed an…
Continue Reading Looking back: The best and worst of 2022

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By Attorney Gregg HermanDecember 21, 2022

Well, that sure didn’t take long.
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.
Current Justice Pat Roggensack is retiring rather than seek a third 10-year term. There are four announced candidates: Judges Janet Protasiewicz, Everett Mitchell and Jennifer…
Continue Reading Wisconsin Supreme Court election gets off to ugly start

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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.

The…
Continue Reading Competing rights and interests

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

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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

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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

Courtroom Jury Box

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