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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

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