Happy New Year! As usual, I’ll start the new year with a review of my columns from last year – some more controversial than others.
By far, the most scandalous was my column that juries are an unreliable means of getting to the truth in a contested trial. In the column, I quoted my felony team captain from my (initial) days as an assistant district attorney, Jon Peter Gennrich: “If a decision has to be made whether
Continue Reading Never a dull legal moment in 2024
December 2, 2024
Frederick P. Kessler died on November 12, 2024. He is survived by his wife of 58 years, Judge Joan Kessler, two daughters and grandchildren. He was first elected to the Wisconsin Assembly before his 21st birthday and served as a Milwaukee County judge from 1972 to 1978, 1978 to 1981 and 1986 to 1988. In 2004, he was reelected to the Wisconsin Assembly and served until 2018.
My favorite Judge Kessler story (although not
Continue Reading Remembering Judge Frederick P. Kessler
My last two columns have advised the Wisconsin Supreme Court. I’m sure they appreciated it and simply forgot to thank me.
So, to be fair, I now have some advice for Wisconsin trial courts (including court commissioners): Serve at the convenience of the parties and lawyers, not by your own, archaic and sometimes inefficient rules.
Specifically, one positive manifestation of the pandemic (my dear late mother used to say that it takes an awfully ill wind not to
Continue Reading Advice to Wisconsin Trial Courts
In last month’s column, I made several very useful suggestions (if I may say so myself) to the Wisconsin Supreme Court for improvements during their new term. Shockingly, not one member of the court thanked me for the helpful advice, nor have they (so far) adopted any of my suggestions.
Since I’m sure this was simply an oversight and that the court welcomes my commentary, I would like to weigh in on a present case where the court
Continue Reading Finality at last. Maybe.
The 2024-2025 term for the Wisconsin Supreme Court just began, and I thought it prudent to offer them some advice as to how to improve their performance this term.
No, they didn’t ask my opinion, and they’ve ignored my advice in the past.
But I’m sure that’s merely an oversight.
So here, as a public service, are five ways (there could be more, but my column has a word limit) for the Wisconsin Supreme Court to improve.
First
As
Continue Reading Advice to the Wisconsin Supreme Court
In Better Call Saul, Jimmy McGill, the (ethically challenged but charming) main character, can’t get hired at his brother’s fancy law firm. So when he’s left with no other options, he does criminal defense work. It’s pretty far from the work he wanted. Art mirrors life. It seems that a lot of lawyers aren’t inclined to do this work.
Wisconsin Supreme Court Chief Justice Annette Ziegler recently announced the creation of an Attorney Retention and Recruitment Committee to consider
Continue Reading Tackling the defense lawyer shortage, Kim Wexler style
A recent Wisconsin Supreme Court opinion illustrates the tough position police are in when deciding, in a miniscule period of time, whether to stop a vehicle or detain a suspect. It seems to me that the court made this position even more difficult.
In State v. Wiskoski, 2024 WI 23, a driver fell asleep behind the wheel of his truck at a restaurant drive-thru. The police were called when a restaurant employee knocked on the truck window and
Continue Reading Damned if you do, or don’t
June 10, 2024
Remember when your kid wanted to throw a birthday party, and they had to invite the whole class? You know, because it was the right thing to do? Yes, even that kid that no one liked got an invite, and the party went off without a hitch.
The Wisconsin State Bar Association is throwing a party soon—and Wisconsin Law Journal isn’t invited.
The bar association’s annual meeting is June 19-21, 2024 in Green Bay. One would
Continue Reading WLJ not invited to the party: State Bar closes doors to media
Before April 24, 2024, Roger G. Merry was a licensed lawyer in the State of Wisconsin despite numerous disciplinary actions. On that date, the Supreme Court finally decided enough is enough and revoked his license, overriding the recommendation of the referee who (amazingly) recommended a one year suspension. Disciplinary Proceedings Against Roger G. Merry, 2024 WI 16. In a concurring opinion, authored by Chief Justice Annette Ziegler, five justices (a majority of the court) agreed with the decision
Continue Reading Life Means Life, or Not
Yes, you read correctly; I’m not a fan of jury trials.
Case in point: The death of O.J. Simpson serves as a reminder of the failure of the jury system. Does anyone really believe that Simpson was not the murderer? If not, why would someone stab two strangers to death for no reason whatsoever?
Two reasons demonstrate that such a belief would be stupid. First, unlike a shooting, stabbings are almost always an act of passion. If a thief
Continue Reading The Case Against Jury Trials
Let me start with the good news (which seems to be in short supply right now): The Alabama Supreme Court decision on IVF does not apply in Wisconsin.
Given Gov. Evers’ veto power and the makeup of the Wisconsin Supreme Court, it’s not likely to be the law here anytime soon. For that matter, the decision does not even apply to Alabama anymore, as it was quickly reversed by legislation.
Still, the decision raises some interesting issues
Continue Reading Sweet Home Alabama? Not So Much
Watching the lawyers involved in numerous high-profile trials, from the various Trump cases to the Michigan mother of the school shooter, causes me to wonder: just how much do these lawyers actually believe what they’re advocating?
The practice of law can be highly disingenuous. As a friend of mine once put it: “Sometimes I feel like a prostitute where I’m assuming a position in exchange for a fee.”
Being a lawyer brings innumerable variations on this theme, some more
Continue Reading Law as a Career
One of the fun parts of writing this column is having free shots at the legislature and the appellate courts regarding their actions (or in one case, inaction) during the year. Not willing to be satisfied with just one free shot, my first column of each year revisits my prior year’s columns and reviews my opinions.
“No problem can withstand the assault of sustained thinking.” — Voltaire
In January, I discussed the proposed constitutional amendment that was designed to
Continue Reading A Look Back at 2023’s Debacles in the Law
Occasionally in the law, the irresistible force meets the unmovable object.
This occurs when two public policies, with close to if not equal merits, conflict. While frustrating because one valid interest has to yield, it can lead to a fascinating examination of the relative merits of each policy. Little, if anything, is more absorbing in legal practice.
Unfortunately, the Wisconsin Court of Appeals, facing such an opportunity, chose to punt, and it wasn’t even fourth down. Put another
Continue Reading Court of Appeals Punts
Sports, being highly sensitive to public opinion, has greatly reduced the number of ties. Football games have overtime. Golf has extra holes. Hockey and soccer (well, some soccer games) have shootouts. Even baseball, the last sport to adjust to modern temperament, mow has a “free” runner at second base in extra innings so the teams can get to a resolution faster. While I suppose some may argue that a tie might be better than losing, it is certainly not
Continue Reading Ties are for Losers
While part of me (a large part) would prefer a different topic for this month, avoiding the controversial issues affecting the Wisconsin Supreme Court is not consistent with my role as a columnist on our legal system. No, I’m not talking about any of the cases pending before them, which should be controversial enough. Rather, of course, it is the firestorm following the investiture of Justice Janet Protasiewicz who, to the dismay of some, won an election. Not that
Continue Reading Not Playing Nice Together