Vol. 76, No. 11, November 2003

2003 Bench and Bar Survey:
Weighing in on the Issues Affecting the Legal Profession

by Dianne Molvig

t's time once again for the biennial barometer of Wisconsin judges' and lawyers' sentiments about numerous issues affecting the legal profession and the justice system. This summer 2,444 randomly selected resident attorneys and judges/justices got a chance to voice their opinions in the State Bar 2003 Bench and Bar Survey.

"This survey is the only vehicle through which the State Bar asks lawyers and judges what they think we need to do to improve the system," notes Madison attorney Donald Leo Bach, chair of the Survey Subcommittee of the Bench and Bar Committee. "So it's a very useful tool. It heightens awareness of the problems."

Not all of these problems, of course, can be resolved by the legal profession alone. Some reforms, for instance, would require legislative action or investment of state resources. Still, notes Green Bay attorney and State Bar President George Burnett, "If anybody should be speaking out on these issues, it's the state's practicing lawyers and judges."

Of those who received questionnaires in the mail, 643 attorneys and 202 judges/justices completed and returned them, for response rates of 32 percent and 45 percent, respectively. See the accompanying sidebar, "Profile of Respondents," for demographic details.

The questionnaire presented 21 statements to which respondents were asked to register their magnitude of agreement, from 1 for "strongly disagree" to 7 for "strongly agree." Circling a "4" on the scale indicated "no opinion." Survey analysts Gene Kroupa & Associates, Madison, excluded these responses in calculating average ratings for each statement.

In addition, the questionnaire posed three questions asking for "yes" or "no" responses. Other parts of the survey offered opportunities to write in personal comments.

Some of the questionnaire statements and questions are new to this year's Bench and Bar Survey, while others are identical to those in the previous survey in 2001. A few even date back to the 1999 and 1997 surveys, thus revealing whether opinions have changed from one survey to the next. Indeed, as you'll see, support for changes in several areas has remained strong over the years.

New Topics

Oral agreements in depositions. The survey asked respondents whether they were aware that Wis. Stat. section 807.05, and case law, rendered unenforceable an oral agreement or stipulation made by opposing counsel on the record in a deposition. Only 26 percent knew about this potential pitfall.

Bach explains, "A lawyer who makes a promise during a deposition that's not in writing and not before the judge can back away from that promise."

Would judges and attorneys favor an amendment to section 807.05 that, at a minimum, would make such agreements binding, provided they are recorded by a court reporter or on videotape? Of those who had an opinion, 88 percent were in favor of such an amendment, while 19 percent had no opinion.

CLE. Seventy-two percent of respondents agreed to some extent that mandatory continuing legal education (CLE) has improved professionalism and competence among the state's judges and lawyers.

Discovery abuses. Discovery abuses have been addressed in previous surveys, but this is the first survey that simply asked respondents whether they believe such abuses occur. Seventy-two percent of respondents felt that abuses exist in the civil discovery process. While some might assume that discovery abuses would be perceived as a bigger problem in urban counties, the survey found no significant differences from one part of the state to another.

The survey also asked respondents to list what they view as the biggest discovery abuses. They cited "canned" interrogatories having no relevance to a particular case, overkill on discovery requests, stonewalling in response to requests, and other game-playing aiming to frustrate and thwart opposing counsel.

Judge Maxine White, now in her fourth year in a civil rotation on the Milwaukee County circuit court and a Bench and Bar Committee member, says she's "granted more sanctions [for failure to cooperate with the discovery process] than I ever thought I would in this assignment."

White advises lawyers to bring discovery problems before judges sooner rather than later, to save everybody time and trouble in the long run. Reluctance to involve the judge can add to delay and frustration, she notes. For instance, if discovery conflicts continue to hover as the court date nears, "It may become too late to cure the problem," White says. "Then, because you decided to be as nice as you could for as long as you could, you put your client in the predicament of having to get an extended date with the court."

"I'm not encouraging lawyers to come to me before they've met their prerequisites [to communicate demands to the other side]," White emphasizes. "But sometimes it's way past the time they should have approached the court."

Diploma privilege. Two other new survey statements probed respondents' opinions about how attorneys enter the legal profession. Sixty-three percent want the diploma privilege to remain intact for Wisconsin law school graduates. Graduates from other states' law schools were more likely to advocate abandoning the diploma privilege. No surprise there.

But what was surprising, at first glance, was that newer lawyers (graduating since 1985) showed more favor toward the idea of abandoning the privilege than did older attorneys. However, this is explained by the high proportion of attorneys with out-of-state law diplomas in this age group compared to other groups.

Mandatory clerkship/internship. Garnering less support was the idea of instituting mandatory clerkships or internships as a requirement for obtaining a Wisconsin law license. A questionnaire statement proposed a one semester (or equivalent) clerkship/internship with a court or attorney's office (public or private) in Wisconsin. Fifty-six percent of respondents voiced opposition. Respondents' written remarks reflected a wide divergence of opinion, from contending that a semester wasn't long enough, to stating "you need your heads examined" for even suggesting such a plan. Several respondents brought up hurdles. Would there be enough offices willing to offer placements? Could practitioners provide as much guidance and supervision as would law school professors in clinical settings?

Arbitration. Contractually mandated arbitration was another new survey subject. Respondents were split almost evenly on this one, with 52 percent agreeing and 48 percent disagreeing with the statement that this process was "a fair, efficient, and inexpensive method to provide justice for the average person." Judges were more apt to agree than lawyers (4.6 average rating versus 3.8, on a 7-point scale).

Like many attorneys, State Bar president Burnett has had his share of negative experiences with contractually mandated arbitration. In a recent case, for instance, his client was forced to settle before arbitration because the arbitrators' fee estimates exceeded what the case was worth in the first place. "Arbitration is supposed to be inexpensive and efficient," Burnett notes. "But somebody has lost the forest for the trees there."

Continuing Concerns

Rules of civil procedure. The call to standardize local rules of civil procedure remains forceful, with 88 percent of respondents in favor, compared to 85 percent in 2001, the first survey to broach this topic. (Note: Surveys prior to 2001 had asked if respondents favored abolishing local rules, rather than standardizing them.) Scores showing agreement with standardization ranked high for both judges and lawyers, at 5.0 and 6.0 respectively, with respondents in "other" positions (mostly court commissioners) showing an average rating of 5.2.

Will there, or should there, ever be one set of rules of civil procedure that applies statewide? Unlikely. Courts value flexibility to be able to tailor rules to their specific needs, even though lawyers often see rule idiosyncracies in different jurisdictions as nuisances.

One solution to this dilemma may be to narrow the number of variations, suggests Milwaukee County circuit court judge Elsa Lamelas, a Bench and Bar Committee member. "Maybe we could have rule types A, B, and C," she suggests, "so that lawyers would have to have familiarity with only three kinds of local rules. That would ease their comfort level, and at the same time it would accommodate the concerns judges have about local rules reflecting the practices of their particular county."

Simplifying procedures. Respondents also weighed in heavily in support of simplifying the procedures for making claims against government entities. This year, 83 percent agreed simplification was needed, compared to 82 percent in 2001 and 86 percent in 1999. The procedures, however, are laid out in state statutes, and thus simplifying them would require a revision in the law. Many observers point out that government entities would lobby hard against any such change, as they have no desire to make it easier for someone to sue them.

Similarly, respondents called for simplification of rules of appellate procedure, with 66 percent stating that the rules are too complex and time-consuming, compared to 64 percent in 2001 and 70 percent in 1999. Several changes were initiated in the rules in 2001, notes Milwaukee attorney Beth Ermatinger Hanan, a Bench and Bar Committee member who has also worked on the Appellate Procedure Committee of the Judicial Council. The 2001 revisions "were not a total reworking of the rules," Hanan notes. "Certainly there is room to use a little more lay terminology in the rules, and the rules could be put in a more chronological order."

Electronic filing. Nearly three-fourths (72 percent) of respondents agreed with the notion of allowing electronic filing of all documents, including summonses and complaints. This is up from 65 percent in 2001 and 68 percent in 1999. Like other electronic forms of communication lawyers increasingly rely upon, electronic filing of documents is "the wave of the present," Bach notes. "What holds it back is budget constraints. It's a big problem to get all the courts in the state on one electronic filing system, and it's going to be expensive." He adds that a pilot project in the U.S. District Court for the Eastern District of Wisconsin has proved to be highly successful.

Other findings. Following are additional findings on other issues revisited in this year's survey. Data from previous surveys are inserted, as available.

• 72 percent disagreed that the current system of judicial campaign financing is acceptable (69 percent in 2001, 71 percent in 1999, 67 percent in 1997).
• 54 percent agreed to some extent that Wisconsin should mandate the use of mandatory interrogatories and other disclosures (52 percent in 2001, 51 percent in 1999, 50 percent in 1997).
• 52 percent felt "there are too many lawyers in practice today for the work to be done" (53 percent in 2001).
• 50 percent disagreed that lawyers should not be constrained in discussing civil cases with the press if their client consents (57 percent in 2001, 60 percent in 1999).

Good Stress, Bad Stress

The 1999 survey was the first to ask about stress in the legal profession, with 91 percent of respondents indicating at that time that stress on the job was worsening. The next survey in 2001 began to probe into the causes of that stress, and this year's survey continued to monitor those causes.

Measuring stress is, of course, highly subjective. Even more subjective is assessing whether stress is more severe today than in the past. As Hanan points out, "It's kind of like once you start gauging wind chill." Suddenly, it feels colder, even though the temperature hasn't dropped. Similarly, focusing attention on stress may make it loom larger in people's minds.

Lawyers and judges know, too, that stress comes with the territory. "When you have responsibility for handling some of the most significant problems people face in their lives," Burnett notes, "it's only right we feel stressed. That's not bad. It shows we take our jobs seriously."

But some stressors tend only to sabotage productivity and career satisfaction. One of these cited in the survey was incivility. Seventy-one percent of respondents agreed with the statement, "Incivility in the profession adds significant stress to my role as a lawyer/judge." The average rating among judges was 5.2, compared to 4.6 for lawyers.

The good news is that the overall proportion agreeing with this statement is down from 78 percent in the 2001 survey. The judges' average score then was also 5.2, and lawyers' average was 5.0. Thus, civility seems to be improving a little, at least in the eyes of lawyers. Still, with 71 percent of respondents citing incivility as an on-the-job stress factor, room for improvement remains.

Toward that end, 65 percent of respondents favored mandatory CLE for lawyers that includes at least one hour on the civility rules. This compares to 69 percent in 2001 and 70 percent in 1999. The proportion favoring such training for judges was 75 percent this year, while it was 79 percent and 80 percent in 2001 and 1999, respectively.

Judges tend to be stronger advocates for civility training for both themselves and for attorneys. In this year's survey, on the question of mandatory judicial training, judges' average score was 5.6, compared to 5.0 for lawyers. For lawyer training, the judges' average score was 5.9, compared to 4.1 for lawyers.

One hour of CLE is merely a start, contends White. "Maybe one of the things we can say now in the fourth year of the survey," she says, "is that we need to have some powerful communication sessions about civility because, in the comfort of our offices, we're each writing [via the survey] about how bad we feel about how we're treating each other."

CLE programs can provide a forum for that discussion, but not only in a separate course. "I'm a proponent of that, too," White says, "but civility should also be integral to every course - so that you can't talk about rules of evidence, for example, without also talking about civility."

While it's useful for lawyers and judges to critique civility in the profession themselves, it also might be helpful to get an outside opinion, White suggests. For example, jurors might complete an exit survey in which they comment on the behaviors they've witnessed - polite or otherwise - during a trial. It wouldn't be a popularity contest, White emphasizes, "but just another instrument for getting feedback."

Other Pressures

Other survey statements explored additional causes of stress, beyond incivility and discovery abuses. One of these pertained to increased demands in the legal profession. When presented with the survey statement, "The increasingly complex nature, breadth, and specialization of the law makes it harder to keep up every year," 83 percent of survey respondents agreed, although this was somewhat less than in 2001 (90 percent).

Burgeoning complexities translate into a hectic pace in carrying out professional duties. Burnett probably reflects the sentiments of many legal professionals when he says that he longs for more time just to sit and think about what he's doing. "That's one of the most rewarding things I can do on occasion," he says. "I still write most of my own briefs, and the reason I do that is in part for selfish reasons. It gives me the opportunity to sit down and think about a problem for a long, concentrated period of time. Lawyers and judges by nature are analytical and contemplative. When we're deprived of that, we miss it."

Other survey statements also tied into the issues of stress and career satisfaction:

• 90 percent of respondents said they must practice much more "defensively" and that this adds stress (91 percent in 2001).
• 89 percent agreed that the practice of law is not as economically rewarding as it used to be (85 percent in 2001). Judges' average rating was higher than attorneys', at 5.6 versus 5.2.
• 64 percent stated they can't economically serve the clients who need their services (66 percent in 2001).

Yet another survey item allowed respondents to write in what they perceived as causes of increased stress. Many comments pertained to incivility and other problems already mentioned above. Another major complaint among judicial respondents was that they faced increased caseloads, longer hours, and decreased resources - a "do more with less" environment. Several also mentioned the growing number of pro se litigants, some of whom, one judge said, "(are) uncivil and ... watch too much Court TV."

Some respondents who described themselves as government attorneys or public defenders also cited heavier workloads, coupled with new budget constraints. Many attorneys listed unrealistic client expectations and demands as sources of stress. One attorney summed up the attitude of many when the attorney wrote that clients expect their attorneys to "Do more, do it more quickly, but charge less!" Many lawyers also commented on a growing lack of respect from clients. As one noted, "Clients have less respect for my opinions. They know the answers and want a 'mouthpiece.'"

In spite of all such aggravations and disenchantments, respondents' answers on another survey item highlight a bright spot. The item stated, "I feel that my practice does not have much impact or importance beyond the task I am conducting." Sixty-seven percent of respondents disagreed with that statement. Or, put in a positive frame, 67 percent believe that their work has meaning in the broader picture. The proportion expressing that opinion in 2001 was 66 percent.

This finding prompts Lamelas to suggest that a future survey might explore new territory. "There is something about this profession that people find compelling," she says. "They find it sufficiently rewarding and satisfying so that they stay in it. I'd like to see a survey question in which we elicit more information about what lawyers and judges love about the law. Then we could see what we could do to enhance the good aspects of the profession."

Putting the Survey to Use

Bench and Bar Committee Chair Raymond Taffora, a Madison attorney, notes that the Bench and Bar Survey provides plenty of material for followup. "The membership is telling us what should be addressed," he says.

Knowing that, and also being aware of how some opinions on needed reforms have remained constant over time, the Bench and Bar Committee can decide which matters call for priority attention. "The committee uses the survey as a way to focus ideas," Taffora says. "From there, we'll make suggestions to State Bar leadership."

Bar leaders, in turn, decide where to direct the association's collective energy to effect changes. "The survey provides a clear roadmap for improvements to our system of jurisprudence," Bach says. "It will help guide the agenda not only of the committee, but also the agenda of all the critical actors in the process, including the public, the State Bar, the legislature, and all Wisconsin courts, from circuit to supreme."

Wisconsin Lawyer