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
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 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
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
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
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
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