1999 Bench-Bar Survey: Lack of Civility Still a Major Concern Among Respondents

The 1999 Bench-Bar Survey revealed support for mandatory CLE on civility, increasing sanctions for discovery abuses, amending the statutes on mandatory counterclaims, simplifying procedures for claims against government entities, and reforming judicial campaign financing, among others.

by Dianne Molvig

pportunities for dialogue between judges and lawyers are few and far between, which only fuels the perceptions that each group fails to fully understand the problems and concerns facing the other. The State Bar's Bench-Bar Survey, developed by the Bench-Bar Committee, solicits candid information from each group - information that can be used to help lawyers and judges work together on a variety of issues important to the administration of justice.

The survey allows communication and candor, under the benefit of anonymity. Through their responses to survey items and their write-in comments, judges and lawyers get the chance to "talk" about what they see as the key issues facing the justice system and the legal profession today. Comparing results to previous surveys also provides a glimpse of how, or if, judges' and lawyers' concerns are changing over time.

The 1999 survey included 29 statements, many of them exact duplicates of statements presented in the last survey conducted in 1997, plus several new statements. As before, respondents reacted to the survey's statements on a scale from 1 for "strongly disagree" to 7 for "strongly agree." They could also mark "no opinion." The latter responses were excluded in calculating average rating scores for each statement.

"This second survey confirms and solidifies the feelings expressed by the bench and bar two years ago on items that were repeated," notes Donald Leo Bach, chair of the survey subcommittee. "It also provides important and sometimes surprising results as to the new items we added."

The consistency of results in some areas is key to deciding on future action, notes committee member Neal Nettesheim, District II court of appeals judge. "This survey tells us that the attitudes of the bench and bar on some of these issues are pretty well settled," he notes. "If we had seen marked changes, that might give us pause in terms of where to go from here and what we do with these results. But what we see now over two surveys two years apart are some consistent ideas."

Voicing their opinions were 775 judges and attorneys practicing in the state. Originally, the survey went out to a random sampling of 1,497 attorneys, and all 412 circuit court, appeals, and federal judges, and the seven supreme court justices. Response rates were 35 percent (522) for attorneys and 60 percent (253) for judges.

A Clear Message on Civility

The lack of civility in the legal profession ranks as a major concern among survey respondents. Seventy-seven percent said that the rules of civility should no longer be voluntary, a slight increase from two years ago. "When I look at those results, I see that we have to heed the call - maybe I should say the clamor - to have more respect, courtesy, and cooperation in the way we resolve matters through the legal system," notes Milwaukee attorney Karri Fritz-Klaus, a member of the Bench-Bar Committee, "and people are saying we need an enforcement mechanism" for the civility rules.

To help improve the situation, 70 percent of survey respondents said that mandatory CLE for lawyers should include at least one hour on the civility rules. Similarly, 80 percent want at least one hour of mandatory judicial education on this topic. These two items were new to this year's survey.

Who should enforce civility? Respondents want enforcement to stem from multiple sources. Nearly 90 percent agreed that judges should enforce the rules (compared to 85 percent in 1997), with 40 percent marking "strongly agree" on this survey item (compared to one-third in 1997). Sixty percent want the Board of Attorneys Professional Responsibility to play an enforcement role (53 percent in 1997). And 59 percent said that lawyers themselves should enforce the rules, similar to 1997's finding.

While respondents want judges to play a strong role, incivility among lawyers often erupts outside the courtroom, rather than in the plain view of judges. But when uncivil behavior does show up in the courtroom, some judges are acting to squelch it. Dismayed at attorneys' behavior in a criminal case, Milwaukee County Circuit Court Judge David Hansher stepped in. "During motions I saw that they were at each others' throats," Hansher reports. "On the day of the trial I served them copies of the rules of civility. On the record, I had my clerk hand each a copy. And I warned them that I was going to hold them to those rules during the trial."

When personal attacks continued on the part of one attorney, Hansher ordered him to pay $100 to the charity of his choice as a consequence for his behavior. "I said I was doing it under my inherent power to enforce the rules of civility," Hansher says, "because otherwise those rules mean nothing. I wish somebody would take it on appeal. Is that a valid enforcement mechanism? Right now, there is no penalty provision written into the rules of civility."

Not Only Shouting Matches

Incivility among lawyers takes many forms: sending nasty letters, failing to cooperate with the opposition's requests for discovery, excessive demands for discovery, obstructing depositions, flooding the opposition with interrogatories, and so on. It's not just lawyers yelling at each other in the courtroom - "like a Jerry Springer episode," as one respondent described it.

Some survey respondents also noted in their write-in comments that incivility is a problem not only on the lawyers' side of the bench. Several expressed sentiments similar to those of one respondent who wrote, "Judges - some, not all - could use a little less arrogance."

Many of the survey's statements, although not expressly about civility, actually tie into civility, Bench-Bar Committee members point out. (See the accompanying article, "Stress on the Rise.") For instance, the survey asked respondents to react to the statement: "Judges sufficiently control discovery abuses, including improperly responding to interrogatories, interfering with depositions, and failing to properly respond to requests to admit." Slightly less than half (49 percent) of respondents agreed, compared to 43 percent in the 1997 survey.

Also related to the pretrial stage, 58 percent of respondents said judges are sufficiently prepared for pretrial conferences. And 58 percent felt that lawyers are adequately prepared. On both items, judges and lawyers each gave themselves more credit for sufficient preparation. On the judges question, judges' average score was 5.1, while the lawyers' score was 3.9 (on a scale from 1 to 7, strongly disagree to strongly agree). Likewise on the lawyer preparedness issue, lawyers' average score was 4.5, judges' was 3.9.

Another item related to discovery, new to this year's survey, stated: "Judges do not understand the problems and issues lawyers face in the discovery process." Among respondents, 57 percent agreed with that statement. In written comments, several cited many judges' lack of private law practice experience as a contributing factor. Not surprisingly, lawyers' average score (5.0) was higher than judges' (2.7).

Clearly, many lawyers feel judges need to better understand how discovery abuses affect their cases and clients. And when abuses arise, they want judges to take firm action. Judges point out they can act only if discovery abuses are brought to their attention, as they aren't present to witness abuses in person. Most judges make themselves available to handle disputes that arise during discovery, says Bayfield County Circuit Court Judge Thomas Gallagher. For instance, "if lawyers run into problems during depositions," he says, "they can try to get me by telephone, and I'll give a ruling to break the stalemate. If they happen to catch me when I'm off the bench, that's fine."

Judges also can have impact at the discovery motion stage. "The tenor of those motions usually tips us off as to what's going on," Gallagher points out. "And we can clamp down in handling those motions to try to eliminate the problems."

Still, when dealing with uncivil opposing counsel during discovery, "it's hard for the lawyer to go running to the judge every single time," notes Milwaukee attorney Maria Lazar, chair of the Bench-Bar Committee. "You just hope some of it shows up in the deposition or in court so that something can be done about it."

The court of appeals in District II did do something about discovery abuses in Geneva National Community Ass'n and Geneva National Condominium Master Ass'n v. Michael E. Friedman and Christine J. Friedman in June 1999. The defending attorney repeatedly had defied the court's orders to comply with discovery. In writing a decision to affirm the lower court's decision against the defendants, the court noted that their attorney's "conduct violated the Standards of Courtesy and Decorum for the Courts of Wisconsin."

"That is an actual decision citing to the rules of civility in support of the court's determination that the trial court had properly ruled on a case," notes Nettesheim, one of the appellate judges on the case. "So indirectly, even without enforcement mechanisms, we in the courts are finding instances where the rules of civility come into play in deciding a case on its merits. That's not to say we should not explore adopting specific enforcement mechanisms and allowing judges to impose sanctions for violations."

Interrogatories also relate to civility. About half of respondents (51 percent) agreed that Wisconsin should mandate the use of mandatory interrogatories and other mandatory disclosures. And 82 percent stated that there should be a mandated limit on the number of interrogatories. Judge John Shabaz notes that rules already exist to control discovery and interrogatories abuses in federal courts. "The federal judiciary has been concerned about that, as has the federal judicial council," Shabaz says, "because the length of time suggested for this type of activity is many times meaningless and expensive."

The federal rules stipulate that each side may conduct no more than 10 depositions in a case and can issue no more than 25 questions in one interrogatory, unless approved by the court. "Those limits are on the books," Shabaz says. "But although you can limit the number of depositions, you still have to look at the time involved. Depositions can go on for days and days, as they sometimes do." To address that problem, the federal system is considering a proposed rule to limit a deposition to no more than seven hours.

The rules that already exist have helped, Shabaz believes. "I've found them to work in this court," he reports. "The time of trials has been significantly reduced. And I think the rules are such that they give the authority to resolve matters in a more expeditious way."

Other Calls for Change

Counterclaims is another area stirring high concern among survey respondents, 79 percent of whom stated that the state's statutes on counterclaims should be amended to conform to the state supreme court's decision in the ABCG Enterprises case. Currently, Wisconsin has no mandatory counterclaims statute. Such a statute would require that if a party is sued, that party must bring forward in the same trial any countersuits in any way related to the original suit. Failure to bring up the counterclaim at the same trial would result in forfeiture of the right to sue on a related matter.

But in ABCG Enterprises, the Wisconsin Supreme Court ruled that although the state lacked a mandatory counterclaim statute, a counterclaim had to be brought forward in the same trial - for the sake of judicial efficiency. The upshot: Lawyers who read only the statute and abide by it set themselves up for having a countersuit thrown out of court - and perhaps being slapped with a malpractice suit. The vast majority of respondents want that pitfall eliminated by bringing the statute into conformity with existing caselaw.

Also drawing a strong response was another new survey statement: "The rules of appellate procedure for Wisconsin cases are too complex and time-consuming." Seventy percent of respondents agreed. "I think there's something to be said for at least taking a look at that," Nettesheim says. "Those rules are very complex. I've been on the court of appeals for 15 years, and I still find myself occasionally having to go back to the books to try to figure out a particular nuance of an appellate procedure."

Drawing even stronger support was a statement that the procedure laid out in the statutes for making claims against government entities needs to be simplified and made easier for users. Eighty-six percent of respondents agreed with that position. One respondent, for example, described the statute's notice provisions as "swords used to defeat valid claims."

Another hot issue is judicial campaign financing reform. Seventy-one percent of respondents think the current system is unacceptable, a slightly higher proportion than in 1997. Judges were less likely than lawyers to deem the current system as acceptable (average scores of 2.5 versus 3.1).

On the issue of judicial pay, respondents reversed the finding of two years ago. When presented with the statement, "Judges are not paid enough," 61 percent agreed, compared to 44 percent in 1997. This is a perplexing finding, Bench-Bar Committee members admit, as there's been no organized effort in the last two years to rally support for better pay for judges.

Other calls for change cited in the survey include:

• 58 percent think the title "administrative law judge" should not be used (56 percent in 1997).
• 68 percent would like to see judges become involved in mediation/settlement if all parties consent (70 percent in 1997).
• 76 percent prefer that any civil action brought to court be authenticated by summons and complaint (70 percent in 1997).
• 68 percent would like to be able to electronically file all documents, including summons and complaint (new survey item).
• 61 percent feel that holding one Bar convention a year would be better than two (new item).

Calls for No Change

In certain areas, lawyers and judges prefer that current practices or procedures remain in place. While judge substitution remains a contentious issue - especially in rural, one-judge counties where substitution means judges can spend lots of time on the road - 72 percent of respondents agreed that substitution should continue in its present form in civil cases, with 55 percent marking "strongly agree." Lawyers' average score far outstripped judges: 6.3 versus 4.4. As for criminal cases, 71 percent of all respondents agreed that substitution should continue, with the lawyers' average score again higher than judges' (6.2 versus 4.4). The percentages on these two survey items were about the same as those found in the 1997 survey.

A slim majority, 52 percent, disagreed with the statement, "Wisconsin should abolish all local rules of civil procedure." Lawyers were more likely to agree with the statement than judges (average scores of 4.5 versus 2.9). "To some extent," Gallagher notes, "the way the law stands now we have to have local rules, such as in small claims and juvenile cases." Local rules vary widely in sheer number: Some counties have one page of rules; Milwaukee County has 35 pages. The rules "sometimes trap the unwary," Lazar says, "for example, if you find out that a court wants a document to be only so long, or that another court says you have to file in 10 days instead of 15. I'm sure lawyers get trapped by local rules because they just assume something."

One consolation is that it's much easier these days to find out what local rules are. Every court has its rules on the Internet, and private groups also publish books containing all county rules. For instance, readers can access local court rules online.

Support for the way things are also cropped up in respondents' reactions to the statement, "Lawyers should not be constrained in discussing civil cases with the press if their client consents." Nearly 60 percent of respondents disagreed with that statement, with judges expressing more disagreement than lawyers (scores of 2.9 versus 3.9). Respondents also disagreed with the statement, "Attorneys' fees should be awarded to the winning party in all cases." Sixty-five percent did not favor the idea.

Finally, 69 percent of respondents want judges to continue to win their seats by election, rather than appointment - even though, as noted earlier, they want changes in how candidates for those elections get their financing. The proportion is up from 59 percent in the 1997 survey. Several respondents wrote in comments to suggest a hybrid system: initial appointment by a nonpartisan body, followed by election a few years later to stay in office.

Looking Ahead

Will actions result from the findings of this survey? That depends on what happens when the Bench-Bar Committee makes it recommendations to the Board of Governors. The committee also will pursue its own initiatives on key issues, such as launching pilot projects in a couple of jurisdictions to experiment with attorney peer review of civility problems.

The survey will continue from time to time as an instrument to take the pulse on various bench/bar concerns. Noting that the Bench-Bar Committee is open to suggestions from other Bar committees and sections, Lazar says, "We're already starting to form some questions for our next survey," which will be conducted in 2001.

Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.

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