Letters

The Wisconsin Lawyer welcomes letters to the editor on any law-related subject, whether that subject has been a topic of a Wisconsin Lawyer article. The magazine publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may need to be edited for length and clarity.

Letters responding to previously published letters and to others' views should address the issues and not be a personal attack on others. Letters endorsing political candidates cannot be accepted.

Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-5502, or email them.

Public Defender Caseloads Too High

Those quoted in "Making the Cut: State Public Defender's Office Lives Within a Reduced Budget" in the April Wisconsin Lawyer were remarkably subdued on the subject of staff attorney caseloads. To read the article, you'd think the unprecedented caseload levels were just a minor annoyance. Quite the contrary. The agency's attempt to balance its budget on the backs of its staff attorneys - and, as a consequence, of its clients - has created a crisis of serious proportions. To get the complete picture, your readership should know:

• The article misstated the caseloads required of staff attorneys. Although felony attorneys do carry an annual caseload of 184.5 by state law, the caseload required by the agency is much higher - from 208 to 245 in the various local offices.
• The average staff attorney has a higher caseload than required by law because the caseloads of those with total or partial caseload relief (usually office administrators and supervisors) are distributed among the rest of the staff without such relief. This method of distribution creates more problems as the agency continues to add levels of management to offices that don't need it.
• Staff attorneys are reminded repeatedly that failure to meet their individual caseloads will lead to unsatisfactory evaluations and, ultimately, discipline including dismissal. The stress of this, along with all the other stress that comes with full-time indigent criminal defense, has led to the lowest morale in years in SPD offices.

Because we realize the political pressures on the program, staff attorneys have been able to quietly go about our increased business in the hope that the current situation is only temporary. However, if anyone thinks that the changes trumpeted in the article represent a permanent solution, we know that cannot be the case. If nothing changes, SPD staff attorneys will at some point confront a predictable scenario where they have to choose between what is good for their careers or what is good for their clients. And we all know - or should know - in whose favor that ethical conflict must be resolved.

Bruce Ware is president of the Wisconsin State Public Defender Association, Local 484, WFT/AFT/AFL-CIO, and staff attorney in the SPD's Milwaukee juvenile office.

"Exploding the Myths of Civil Justice" Draws Response

It has been a long time since I've read anything matching the pretentiousness of David Saichek's May President's Perspective.

Contrary to what Mr. Saichek and his accomplice in class warfare, Prof. Marc Galanter, posit what fuels the sense of outrage of critics of the civil justice system is not "because it challenges the leeways and immunities enjoyed by those in charge." His class warfare rhetoric ignores the fact that the culture of victimization has spread through all classes. Indeed, now lawyers are victims. What fuels the sense of outrage is the steadfast unwillingness of the challengers, of whatever class, (and their advocates) to accept any personal responsibility. Loser pay the costs of an unmeritorious lawsuit? Unthinkable! Limit liability to the extent of one's negligence? Outrageous! What fuels the outrage is the holier-than-thou whining.

Mr. Saichek attacks corporate America asking: "Why does corporate America spend (fraudulently) their shareholders' dollars on poisoning the pool of jurors?" Yet he ignores the efforts of the plaintiffs bar to create myths and product liability based upon junk science (Alar, breast implants, stray voltage, to name a few).

Prof. Galanter has been feeding at the public trough so long that his bias is at least understandable. Mr. Saichek's attacks on corporate America are, however, particularly ironic. If the shareholders of a corporation object to its use of funds, they have a multitude of remedies, including the self-help remedy of selling their shares. They aren't forced to associate with the company, either as an investor or customer. If the company doesn't meet a market need, it fails to exist.

Mr. Saichek seems to have forgotten that the State Bar's feature of compulsory membership doesn't apply to the lesser organizations such as corporations that produce wealth, rather than forcibly extract it like the Bar.

Thomas E. Vandenberg
De Pere

David Saichek's May President's Perspective was true to the mark. Thank you for writing it.

Sadly, articles making some of the same points have appeared not infrequently, even in the mainstream popular press, but always with no apparent impact.

Why is it that the people who would be hurt the most by tort reform and litigation reform seem to be its most fervent proponents? How can people who value our liberties pursue an objective that would make all but the very wealthy completely dependent upon the government to define and defend their rights?

It has gotten so bad that even people who normally respect my opinion on virtually everything stop listening when I talk about this one thing about which I know the most.

It has always been the Bar's duty to defend and protect our fellow citizen's rights. Now it seems we have the additional duty of persuading them that it is important that we remain available and able to do so.

Ralph J. Ehlinger
Milwaukee

David Saichek's President's Perspective in the May Wisconsin Lawyer was infuriating.

Mr. Saichek cites U.W. Law School professor Marc Galanter as writing, "[p]ublic discussion of our civil justice system resounds with a litany of quarter-truths." Agreed - coming from the Association of Trial Lawyers of America (ATLA) and its junk science bedfellows who came up with garbage like the "twinkie defense," the Alar scare and the silicone myth.

Mr. Saichek whines, "[w]hy does corporate America spend (fraudulently) their shareholders' dollars on poisoning the pool of jurors?" How so? By advertising? By asserting their legal rights and combating frivolous lawsuits to save the shareholders' investment? What "corporate America" is he talking about? Harley-Davidson? Northwestern Mutual Life? His own corporate clients? It might surprise Prof. Galanter and Mr. Saichek to know that millions of Americans work for, and within, what Mr. Saichek so derisively refers to as "corporate America."

What exactly does Mr. Saichek propose to stop the alleged "poisoning of the jury pool"? No advertising? A ban on profits? No free speech for those who work for a corporation? Government oversight of all corporate decisions? Maybe Mr. Saichek wants that world: Spill some coffee on yourself? It's not your fault! Sue McDonald's! Is it any wonder that plaintiffs' lawyers and ATLA are held in such low regard? (Are Mr. Saichek's comments tainted by his ATLA membership and/or his plaintiffs' product liability practice?)

I do, however, agree with Mr. Saichek's comments that, "[r]ich and powerful people want more money and more power" and "[t]hey resent governmental regulations brought about by their own abuses and avarice" for it so accurately describes the plaintiffs bar, ATLA and the State Bar. Indeed, this is why ATLA whines so much about efforts to curtail junk science and frivolous lawsuits. But I'm sure Mr. Saichek's not-so-thinly disguised class warfare is aimed at "corporate America."

Mr. Saichek's comments also expose his view that shareholders and citizens, that is, the "pool of jurors," are too stupid to act responsibly and freely. If the shareholders and citizens don't like the corporation's actions, they can sell their shares and/or find against the corporation in the jury room. But isn't that the typical mindset of a leftist like Mr. Saichek, that is, "I know what's best for you better than you do; therefore, I'll think for you, protect you, and so on, if you just let me run things." Has the State Bar spun into the world of "the looters" as described by Ayn Rand in Atlas Shrugged?

Mr. Saichek claims to represent the "under-protected citizen" against "corporate abuse." (Read "proletariat" against "bourgeoisie.") The malarkey Mr. Saichek spins as "lawyer as champion" (as long as he gets paid) is the same self-deluded and self-righteous drivel that emanates from the ABA. From the perspective of millions of Americans, the citizens are "under-protected" against the abuses of the government and the lawyers. This is why there is a reform movement afoot and the desire by the people to curtail the governmental power. Where has Mr. Saichek been? Even Bill Clinton claimed "the era of Big Government is over." (Will Mr. Saichek and Prof. Galanter help this under-protected citizen assert his Second Amendment rights?)

If anything, it is the State Bar that is engaged in abuses and avarice. Why must I be forced to be a member of an organization that flies so far left? How is it that the State Bar may extort my money to use against my personal and political philosophies? (How would Mr. Saichek and Prof. Galanter like to be forced to join the American Corporate Counsel Association and be forced to pay dues?)

The leaders of the Bar certainly don't represent me or people of similar philosophy. If, however, Prof. Galanter and Mr. Saichek will represent me against the abuses of the State Bar, I would be happy to seek their counsel.

Miles S. Mittelstadt
Appleton

So far as I know, ATLA is very much against "junk" science and frivolous lawsuits. I surely am not in favor of banning corporate advertising or profits. This technique of attributing erroneous beliefs to people with whom one disagrees is a shop-worn and discredited method of argument - very disappointing. Mr. Mittelstadt is, of course, entitled to his resentment against the ABA, ATLA, State Bar, plaintiffs bar, Prof. Galanter and me. I just wish he could articulate a reasoned argument against empirical research designed to test the accuracy of the very myths he has so obviously adopted.

David A. Saichek, past president
State Bar of Wisconsin

Sadly, Race Still Matters

The April President's Perspective, "Prejudice and the Profession," illuminated many of the issues that I (and other colleagues) have reflected upon, and at times become exasperated over, because of the persistent and impeding nature of racism to the growth and development of minorities within the legal profession. I submit that if minority attorneys are adversely affected in this manner, then the profession and the legal system also are adversely affected. I truly appreciate membership in this profession and the occasion to participate in the legal process by serving others. I also recognize the odds and obstacles that have been surmounted in achieving lawyer status in an association that commands national esteem. It is because of this regard and identification that I believe additional impetus must be afforded the State Bar's laudable efforts to pursue corrective measures where race and gender bias exist.

The minority population statistics Mr. Saichek cites reflect a result founded on historical attitudes about African-Americans and other minorities. Unfortunately, minority lawyers continue daily to experience the residual effects of those attitudes which have filtered through the various institutions and systems of American life. Moreover, the paucity of minority attorneys emanates from an ongoing process that communicates value judgments about the worth of individuals based on race. If one's perceptions are that an individual is intellectually capable, or not, then one is inclined to regard that person consistent with those beliefs. We need not look any further than our corporate board rooms, law firms or the court system to confirm this fact. While some aspects of life in law have improved with time and effort, others have not to any meaningful degree. The sad but ultimate message is that race still matters.

Further, while minority attorneys previously have tended to represent like clientele, there also is a presumption that they should be limited to that realm. Having represented persons of varying racial backgrounds over the years, I have observed that people first and foremost desire competent counsel to advocate their causes, irrespective of racial background or gender.

As a private practitioner, I am reminded of the compounded difficulties in representing clients, particularly minority ones, where opposing counsel or a judicial officer displayed apparent disregard for my status as their counsel based upon race, gender or both. These indignities included, without limitation, constantly questioning the client's credibility, even on nonrelated matters, presumptuously addressing the client or counsel by one's first name, making disdainful statements about or otherwise attempting to demean the client's position on cases and extending condescending or patronizing remarks. For clients, this type of treatment is offensive and perplexing, and conveys a message that undermines the client's decision on the choice of counsel, as though to punish both the client and counsel.

Equally troubling, minority clients confronted with this type of conduct often have felt very defensive, and have acted as though they did not expect much beyond the disrespectful treatment accorded them. This negative behavior reinforces historical stereotypes and misperceptions about the capabilities of minority lawyers, and restricts their professional, economic and personal growth. Under these circumstances, the legal talents, abilities and aspirations of many minority attorneys often are frustrated or lost. This inures to the detriment of the legal and public community as a whole.

Since minority private practitioners often lack the undergirding resources their majority counterparts may possess, whether in start-up financial support for private practice ventures, or in resource access, racial bias in the form of the above conduct restricts their ability to successfully compete in the legal system. Their ability to interact and network with colleagues on current legal issues of the day, and to have exposure to the same law practice experiences their counterparts enjoy (or endure) also is affected. Ameliorative advances have occurred in recent years. Still, the institutionalization of historical attitudes, predispositions and behaviors based on race remain difficult to eradicate.

Given the fact that race seems to tear at the fabric of American society today by creating so much consternation and uneasiness among citizens, we cannot be surprised that it continues to manifest itself in the legal profession and the justice system generally. Therefore, I concur that we find it difficult to summon the resolve to conquer this ingrained national nemesis. Whither that this were not so, and that we would all begin to view one another for the person within and not without.

Lela P. Davison
Milwaukee

Can Lawyers Blame the Public for How the Public Perceives Them?

Our State Bar president's March 1997 President's Perspective on why "as a profession we are maligned and ridiculed," blames the public for not being smart enough to respect lawyers. Deflecting self-criticism, Mr. Saichek is among many attorneys who find logic in this syllogism: "Honorable and competent" attorneys are respected. Attorneys are being "maligned and ridiculed." Therefore, the public needs to be educated.

In his article, Mr. Saichek ridicules business managers who "absolutely despise being held accountable;" "educated public officials" who are ignorant of the role of the judicial branch; and, implicitly, all other "uneducated" members of the public. With this attitude, no wonder that attorneys are not "liked back."

A local judge recently commented that lawyers are at their best when advocating for their clients, and at their worst when defending themselves. Even the best trial strategists whine when confronted with public criticism: "Why don't they like us?"

The current Bar is like a new step-parent eager to gain the respect of its stepchild, the public. We want the respect given to our predecessors without having to earn it. We believe that a suit and briefcase should command a sort of awe, and that three extra years of school place us on par with medical professionals. The proposal to "educate the public" sounds very much like locking the stepchild in his room to "think about things."

Good lawyers used to be symbols for ethics and wisdom, and unselfish service. The worst a bad lawyer was known for was talking too much, or not knowing what he was doing.

Today, ask about lawyers in a coffee shop: "They're in it for the money." (In what other profession or career can a 25-year-old start at $70,000 a year?) All lawyers are rich and selfish. Bad lawyers are downright dangerous.

How can education change this most basic perception of self-interest? How can committees and commissions convince the public that attorneys are not just in it for the money and the unearned respect?

As for ethics, as in most growing associations, our Rules have become merely minimum standards. To avoid malpractice, don't have sex with your clients, and keep their money separate from yours. Try not to represent both parties to a lawsuit at the same time. File copies with the Bar when you solicit work from recent widows. Take one-third of the injured's compensation, no matter how much effort it requires; just put it in writing.

Most people hire an attorney when they're arrested, injured or in some kind of fight with someone else. "Good" (expensive) lawyers can reduce the sentence, get large settlements and beat the pants off any opposition. "Good" lawyers do this for the money.

As a group, we simply cannot ignore the cumulative effect of the individual lawyers who sued McDonald's for hot coffee, "successfully" acquitted O.J. Simpson, deny any connection between smoking and cancer, and blame the manufacturer when a child chokes on a marshmallow or strangles himself on a cloth towel dispenser.

So, nonlawyers learn that individual attorneys' "good" work results in criminals going free and lighters being child-proof. Parents need to get releases signed before planning a birthday party. Swimming pools include the cost of a fence. Everything costs more, because everything has to be insured, because anyone can be sued. Are these benefits to the public?

What, exactly, do lawyers want to be respected for? The work done for individual clients seldom benefits society as a whole. And whenever one client "wins" a lawsuit or "beats a rap," someone else loses. It's the nature of the system, but it's exaggerated by advertising that encourages aggressive pursuit of "your rights," and sets up everyone else as the opposition.

So, nonlawyers also learn that they can use a lawyer if their interests coincide: essentially, money. Lawyers have become, then, tools for the public; but when the same tool is used against lawyers, it is "maligned and ridiculed" - and neither trusted nor respected.

I feel privileged to know a few true professionals who are exceptions to the coffee-shop opinion of attorneys. If asked to "educate" the public about lawyers in general, I would use these examples as the standard by which the majority should be judged. And if the shoe fits, we should not blame the public for the size of our feet (or heads).

Nancy J. Sixel
River Falls

If I agreed with Ms. Sixel that there are only a "few true professionals" I'd not bother urging our lawyers to "educate" the public about the role of the judicial branch of government.

The vast majority of lawyers care sincerely about their roles as counselors and as advocates. If Ms. Sixel has not met them the loss is hers.

David Saichek, past president
State Bar of Wisconsin

Kids Can't Wait for Permanent Homes

I noted with interest the News Briefs report on Families First in the April Wisconsin Lawyer and would like to share with you a local initiative that has had some fairly dramatic success. In 1993 a group of professionals involved with the Milwaukee Children's Court recognized that we were losing the battle and the war. Milwaukee County had record numbers of children in foster care with little or no hope of return to their home or a permanent home, and our child welfare system was recognized as one of the most overburdened in the country. Believing that foster care should not be a permanent condition and that children are severely harmed by a lack of bonding and nurturance in their early years, we decided to take action.

We formed a committee we call Kids Can't Wait, which is dedicated to the simple goal of reducing the time children are in nonpermanent placements. The committee includes myself representing the judiciary; representatives from the District Attorney, Public Defender, Guardian ad Litem, and Department of Social Services offices; private service providers and adoption workers.

We began with the following goals:

1)Analyze the case processing from out-of-home placement to permanent placement and eliminate problems of duplication, poor communication and inefficient processing. As we critically reviewed the operation of the system as a whole, we found numerous areas that could be improved. Each agency made operational changes to become more efficient and worked to assist the others when appropriate.

2)Organize training at all levels from caseworkers to judges on the need for permanence and quick resolution of cases. We conducted training sessions with the Department of Social Services case workers, attorneys and judges on the importance of making and implementing realistic permanent plans for children and families.

3)Investigate national models of Permanency Planning and successful programs in other jurisdictions. We consulted with Debra Ratterman Baker of the ABA Children and Law Section for assistance in setting up similar projects in other states.

We have accomplished much of what we set out to do and did so during a period of crisis in the Milwaukee County's child welfare system. We continue to meet monthly to address issues as they arise and to keep our case processing on track. Some statistics that indicate the success of our efforts follow:

1993 - 80 TPR cases were filed, 81 adoptions were completed;

1994 - 103 TPR cases were filed, 108 adoptions were completed;

1995 - 248 TPR cases were filed, 151 adoptions were completed;

1996 - 271 TPR cases were filed, 254 adoptions were completed.

In addition to the increase in Termination of Parental Rights (TPR) cases and adoptions, the time children are in out-of-home placements has been reduced by earlier reunification of families when possible. I credit the commitment of our committee and the ability of each member to gain the support and involvement of their agency to our overall success. The Department of Social Services added adoption workers, which sped up the finalization process; the District Attorney and Guardian ad Litem offices added staff to work exclusively on TPR cases; and the judiciary agreed to expedite all TPRs and adoption petitions, and to set realistic permanent plans.

The crisis of children lingering in foster care is not isolated in Milwaukee. Too often the remedies suggested or attempted do not address the system as a whole and fail to gain the cooperation of key players in the delivery system. The interagency cooperation, communication and collaboration that we have developed and maintained has been critical to our success and the success of any program. I encourage other counties to try a similar program and would be glad to assist in any way I can.

Judge Mel Flanagan
Milwaukee County Circuit Court

Everyone Needs to Proofread

I read with special interest Mary Barnard Ray's article entitled "Spell checkers, proofreading and the lack of free lunches" (May 1997 Wisconsin Lawyer) as I am a lawyer with a journalism degree and a proofreading background.

I had to chortle and blush slightly as I read the example wherein the writer inadvertently dropped the "l" from "public." I agree wholeheartedly with Ms. Ray's assertion that computer spell checking programs entice us into speeding across text where we, or someone we work with, should pore over it at least once. I routinely come across blatant typographical errors in legal documents and correspondence, and apart from causing me personally to adjust downward the credibility of the signatory (yes, we do "adopt" errors in any writing to which we sign our names), I worry about how such careless errors reflect upon the profession.

Imagine my surprise, then, upon reading a letter sent to me as a newly admitted Wisconsin attorney from none other than the State Bar of Wisconsin. The subject was "equal access to justice" and I was informed that "A lawyer should render pubic interest legal service." I got to blush once again as I showed the letter to the secretaries in our office. I couldn't help but think that, if I took this literally, I would run afoul of several other rules.

The letter was a perfect illustration of the fact that no one is immune from the need to proofread. Yes, I ran a spell checker on this letter. Then I read it word for word three times.

Gregg A. Bilz
Phillips