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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

Ads for personal injury lawyers (and there sure are a lot of them), use some version of “we don’t get paid unless you get paid”.  One variety is “you don’t pay us, unless we win.”  Which brings up two questions:   First, who is in this “we?”  And second, how do you define “winning?”

Certainly, the intent of the ad is to put contingency fee arrangements into “ad speak.”  Under a typical contingency fee agreement, if a client gets zero,
Continue Reading Defining Winning

As usual, the Wisconsin Supreme Court issued a slew of cases in June, clearing the calendar for the end of their term. Of the cases filed, only two were disciplinary cases. With over 25,000 members of the State Bar, this seems a miniscule number. A couple of years ago, I researched the number of grievances filed against Wisconsin lawyers. Gregg Herman, “Where have all the grievances gone?”, Wisconsin Law Journal, November 11, 2021. In that article I
Continue Reading Are Lawyers More Ethical?

The judge is the most important role in having a fair and efficient legal system. Properly performed, it requires intelligence, compassion, savvy and patience. All of those attributes may (or may not) deteriorate with age. So, should there be a mandatory retirement age for judges, like there is for airline pilots?

The issue is highlighted most recently by the case of 95-year-old Judge Pauline Newman, the oldest active federal judge in the nation. She is famous (infamous?) for having
Continue Reading Age Isn’t Just a Number When It Comes to Mandatory Judicial Retirement

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

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

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

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

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