Taking the Profession's Pulse
Bench-Bar Survey Reveals Lack of Local Court Rule Standards Among
Concerns
The lack of local court rule standards ranks as the top concern for the
legal profession, according to the 2001 Bench-Bar Survey. Incivility
among lawyers and judges, difficulty in making claims against government
entities, complicated appellate procedures, and stress are other top
concerns that quicken the pulse of survey respondents.
by Dianne Molvig
Two years ago, a Wisconsin Lawyer article
summarizing the findings of the State Bar's 1999 Bench-Bar Survey
carried the subtitle, "Lack of
civility still a major concern among respondents." Reading the
results of the 2001 survey evokes a measure of déjà vu.
Again this year, judges and attorneys from across the state expressed
strong feelings about incivility in the legal profession, as well as
local rules of civil procedure, making claims against government
entities, appellate procedures, and other subjects. In fact, sentiments
on many of these issues registered at much the same level this year as
in 1999 and, in some cases, as in 1997, the first year the biennial
survey appeared in its current format.
"I think it's important to keep pointing out the recurring issues,"
says Neal Nettesheim, District II court of appeals judge and Bench-Bar
Committee member, "particularly in those areas where we're speaking with
nearly one voice. There is a groundswell of support for certain
changes."
This article examines in detail several survey items for which a
substantial majority of respondents (roughly two-thirds or more) came
down on the same side of an issue. For a brief synopsis of the rest of
the survey's findings, see the accompanying sidebar, "Additional Survey
Results."
We'll also look at a topic new to the 2001 survey: the stress legal
professionals feel as they go about their daily business. "In 1999, 91
percent of those surveyed indicated that practicing law or being a judge
is becoming more stressful each year," reports Madison attorney Donald
Leo Bach, chair of the survey subcommittee. "In the 2001 survey, we
attempted to find out some of the causes of that stress."
Respondents included 415 attorneys and 249 judges and court
commissioners, for response rates of 27 percent and 55 percent,
respectively, from those who originally received the questionnaires by
mail last July. Milwaukee County accounted for 26 percent of responses,
with 19 percent from Dane County, and 55 percent from the rest of the
state. Respondents' median year of law school graduation was 1977. The
questionnaire asked respondents to register their reactions to 29
statements on a scale of 1 for "strongly disagree" to 7 for "strongly
agree." Another option was "no opinion"; these responses were excluded
in calculating average scores for each statement.
The Local Rules Quagmire
A survey statement garnering one of the strongest
reactions pertained to local rules of civil procedure. Eighty-five
percent of respondents agreed that Wisconsin should standardize local
rules as much as possible. The most avid support came
from lawyers, who had an average score of 6.0 on a 7 point scale, but
scores also ran high among judges (5.2) and court commissioners (5.3).
It's interesting to compare this year's response to that of a
differently worded question on this issue in the 1999 survey. When asked
whether local rules should be abolished, only 48 percent agreed.
Replacing the word "abolished" with "standardized" elicited vastly
different reactions this year.
Lawyers contend that variations in local rules often ensnare
attorneys who come from the outside to practice in a county. Attorneys
who practice in several counties - as many believe they must to make
their law practices economically viable - must stay informed about
several sets of varying, sometimes contradictory local rules. They do
get help with that task. Local rules often are available in publications
from various sources and on the State Bar's Web site at www.wisbar.org.
But problems remain.
"Many counties haven't reduced their rules to writing," points out
Madison attorney Gerald Mowris, State Bar president. "Then lawyers have
to call people in that county to find out what's going on. We shouldn't
have to do that." Standardization of many rules would reduce the
problem, he adds, or, failing that, all counties' rules should be made
available in an up-to-date, easily accessible printed or electronic
format.
Another problem is that local rules tend to take on a life of their
own. Ongoing scrutiny to weed out superfluous, burdensome local rules is
lacking. As just one example, Eau Claire attorney Pam Veith had a family
law case in another county in which the court commissioner issued a
temporary order requiring the parties to mediate. Even so, upon
presenting the order at the clerk of court's office, she was told she'd
have to fill out a referral for mediation. She, in effect, had to
initiate new paperwork for what the commissioner already had ordered.
When she questioned the duplication, "I was told, 'This is the way we do
it here,'" Veith recalls. "But it was just generating more work for
attorneys and increasing fees in family law cases, where clients don't
have a lot of money to begin with."
On the other hand, lawyers must understand that local rules do at
times have a solid rationale behind them, perhaps not immediately
obvious, say court officials. For instance, Ozaukee County court
commissioner Darcy McManus created a rule that requires an attorney to
give her a copy of the signed agreement in a stipulated divorce before
she schedules the matter on her calendar. Before she instituted the
rule, attorneys often appeared at these hearings without their clients
having reached an agreement. Thus, McManus's efforts to have a court
reporter present at the hearings, as required in stipulated divorces,
were for naught. That's critical, she says, because a court reporter is
available to her only a few hours a week. "I don't want to waste
valuable court reporter time," she explains. "So there are reasons to
have variations in local rules in certain circumstances."
The state statutes also work against achieving total standardization
of local rules, notes recently retired Bayfield County circuit court
judge Tom Gallagher. A good example, he says, is small claims cases, for
which the statutes provide local courts with a range of procedural
options. "You're never going to be able to standardize local rules 100
percent," Gallagher contends, "but I understand the lawyers' problems.
They don't want to be blindsided by not dotting the i's, or crossing the
t's, or following some time rule. Many things could be
standardized."
Traps in Making Claims Against Governments
Strong sentiments also emerged in the survey
about modifying procedures for making claims against government
entities. Of all respondents, 82 percent agreed that these procedures
need simplification, compared to 86 percent who held that opinion in
1999. Average ratings this year for lawyers and
judges/commissioners were close, at 5.5 and 5.3 (again, that's on a
scale from 1 to 7, with 7 indicating "strongly agree").
Speaking from the lawyer's viewpoint, "the procedures simply have
become too complex, too time-consuming, and a trap for the unwary," Bach
says. "There's no reason why this area of the law could not be
simplified."
He gets no argument from judges on the Bench-Bar Committee. Gallagher
concurs that the procedures are complex, which results in extra burdens
on the courts. "We're constantly being called on to determine whether a
claim was filed on time, if it was served to the right people, and so
on," he explains. "So there's litigation within litigation, and that
eats up court time."
Gallagher adds that, in his view, uniformity of procedures is the
issue more so than simplification. As the law now stands, different
types of government entities have different requirements for similar
types of claims. For example, starting an action on a highway matter
against the state Department of Transportation is different from
initiating an action against a municipality. "It's a minefield for
practicing attorneys to make sure they do it right," Gallagher says.
David Hansher, a Milwaukee County circuit court judge, has witnessed
that from another vantage point, from his days as an attorney for the
city of Milwaukee. "The law is full of legal hoops lawyers have to jump
through and little technicalities," Hansher observes. "But the aim of
the law was not to give government entities technicalities to hide
behind. I think that should be changed. I was surprised to see 82
percent [of respondents] agree. It's something I've thought about for
years."
On a more pessimistic note, Hansher foresees slim chances for
revising the statute. Government entities have strong lobbies to fight
any effort to simplify procedures for filing claims against them.
Winning such changes would be a tough uphill struggle in the Wisconsin
Legislature, Hansher believes.
Calls for Court of Appeals Innovations
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Diane Molvig operates Access Information Service, a
Madison research, writing, and editing service. She is a frequent
contributor to area publications.
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Three survey statements on
appellate procedures and decisions drew high levels of agreement among
respondents. First, 64 percent felt the rules of
appellate procedure for Wisconsin cases are too complex and
time-consuming - still a substantial majority, but down from 70 percent
in 1999. This year's average scores for judges and lawyers tied at 4.7.
"The rules are complex; I won't tell you otherwise," Nettesheim says.
"They can be confusing, even, at times, to appellate judges." He notes
that some rules have been reworked recently to make them more
comprehensible.
While Nettesheim concedes that procedures might be further
simplified, he suggests that the sentiments expressed in the survey stem
from the fact that many lawyers don't practice appellate law regularly.
"When you bump up against things that are foreign to you," he says, "you
tend to see them as complex and daunting. I dare say if you put the same
question to regular appellate practitioners, you might find a decidedly
different result."
What's more, daunting as some procedural rules may seem, they do
serve a purpose, Nettesheim contends. Rules assure that when a case
reaches the appeals court, everything is in order, the record has been
properly compiled, and the court has jurisdiction over the case. That
prevents technical or procedural questions from popping up later, when
they might distract judges from their paramount task of formulating an
opinion.
New to this year's survey was a statement that read: "All opinions of
the court of appeals should be published and able to be cited as
precedent." Fifty-nine percent of respondents agreed. Much stronger
agreement emerged for another new survey statement addressing appellate
decisions: "A party should be allowed to cite an unpublished court of
appeals opinion for the persuasive value if a copy of the decision has
been provided to the opposing party." The latter statement evoked 72
percent agreement, with lawyers favoring it more than judges (average
scores of 5.1 and 4.6).
As for the first statement, publishing all court of appeals decisions
would be of questionable value, as Nettesheim sees it - a view he
suspects most of his appellate colleagues would share. "I say that for
the simple reason that some decisions issued by the court of appeals say
nothing new," he explains. "They simply rely on well-established law. So
publishing every decision would be largely a waste of time."
Instead, the appellate courts have a three-tiered system for sifting
out cases that merit publication. First, when a three-judge panel rules
on a case, it also decides if the decision should be published. Then,
once the decision is drafted and before it's released, those judges
revisit their publishing decision. Finally, a publication committee made
up of one court of appeals judge from each of the state's four appellate
districts reads all authored appellate opinions issued statewide each
month and again reviews the decision to publish or not.
Even with this multilevel scrutiny, cases can fall through the
cracks, Nettesheim concedes. Plus, people may disagree about the
significance of a case. He doubts, however, that the remedy is to
publish all decisions. Consider that lawyers and judges already feel
buried as they try to keep up with information. "If you would add to
that pack of material the scores and scores of unpublished cases that
come out each month from the court of appeals," Nettesheim says, "I
suspect a lot of people would change their minds in a hurry" about
wanting all appellate decisions to be published.
Turning to the second survey statement on appellate decisions,
Nettesheim strongly agrees with the nearly three-fourths of survey
respondents who want to be able to cite an unpublished court of appeals
opinion. Attorneys benefit by being able to use the persuasive logic of
unpublished opinions, even though they're not binding, in arguing other
cases. From a judge's standpoint, "If I'm working on a case," Nettesheim
says, "and a lawyer tenders to me a helpful, well-reasoned appellate
decision on the same issue, I would like to have the benefit of that
court's thinking. To me that just makes eminent sense."
Incivility Takes a Toll
Incivility among lawyers
and judges continues to rate as a top concern in the profession.
Respondents believe, by a hefty majority, that if the civility rules are
to have true potency, they must no longer be voluntary, but rather be
enforced somehow. This year, 76 percent subscribed to
that position, compared to 77 percent in 1999 and nearly 75 percent in
1997.
Still, some may ask: Why all this fuss about civility, or the lack of
it? A couple of new survey statements this year point to answers to that
question. First, 78 percent of respondents said that incivility adds
significant stress to their daily work as lawyers, judges, and court
commissioners. Clearly, incivility is detracting from law professionals'
enjoyment of what they do every day. Second, 89 percent of respondents
felt that the reputation of the law profession has declined in the eyes
of the public. Uncivil behavior may well be a key factor in that
diminished reputation.
Part of what makes incivility such a tough problem is that it is at
once both a cause and an effect. As survey respondents noted, incivility
contributes greatly to stress on the job. On the other hand, stress can
easily spawn incivility. As Veith observes, "It's hard to be civil and
polite when you're overstressed. When I'm under lots of pressure,
sometimes I'm not the nicest person to be around." Those words may
resonate for many lawyers, judges, and commissioners, if they're equally
as honest in their self-assessments.
Heightened consciousness about the need for civility may be beginning
to improve the situation, says Milwaukee attorney Karri Fritz-Klaus, who
has been an active civility proponent for years. Seminars, articles, and
even bench-bar survey results have helped boost awareness. Still, abuses
persist. "When I see that a particular lawyer has been hired on a case,"
Fritz-Klaus notes, "I say to myself, 'Okay, I know how this one is going
to go down.' There are lawyers who will run you into the ground
emotionally, financially ... and it's those bad eggs the public focuses
on."
Debate continues to swirl around the question of how to enforce the
civility rules, if they're to be no longer voluntary. Again this year,
respondents gave the biggest vote to judges, with 90 percent agreeing
that judges should enforce the civility rules. In fact, judges' average
score of agreement outranked lawyers', at 6.0 versus 5.6 (6.4 among
court commissioners).
One of many judges striving to find ways to foster civility in their
courtrooms is Milwaukee County's Hansher, although his approach is, as
far as he knows, unique to his county. At Hansher's suggestion, and with
the approval of his judicial colleagues, the rules of civility, as
spelled out in chapter 62 of the Supreme Court Rules, are now part of
Milwaukee County's written scheduling orders. If he sees uncivil
behavior, "I just say, 'You're not complying with paragraph eight of the
pretrial scheduling order,'" Hansher explains, "and I can impose
sanctions."
The civility rules became part of the scheduling orders six months
ago, and Hansher has had to reprimand no transgressors since, although
he did fine a lawyer for uncivil courtroom behavior a couple of years
ago. "I think there's a general acknowledgement now among attorneys
appearing before this court that they're going to be held responsible
for any violations," he says. That applies, he adds, to any uncivil
behavior he encounters during a case, whether inside or outside the
courtroom.
Uncivil behaviors outside the courtroom, usually occurring during
discovery processes, are the most difficult to catch. Only 53 percent of
survey respondents agreed that judges sufficiently control discovery
abuses, with, not surprisingly, judges' average score ranking higher
than lawyers' (4.8 versus 3.8). The proportion agreeing was slightly
higher this year, however, than 1999's 49 percent, which, in turn,
outstripped 1997's 43 percent.
Milwaukee County circuit court judge Elsa Lamelas is among those
judges who have tried to heed lawyers' calls for better control of
discovery abuses. Acting quickly to nip problems during discovery sends
a clear message, she says. For instance, if a lawyer calls to complain
about another lawyer's obstructiveness during a deposition, "As much of
an interruption as it is, I try to take a few minutes to respond to the
complaint right away," Lamelas says. "In the future, if the lawyer
causing the problem knows that I will take the call, maybe he or she
will be less likely to do it again."
Respondents also indicated support for other enforcement channels.
Sixty-two percent agreed that peer groups should enforce the rules,
while 56 percent felt the Office of Lawyer Regulation (formerly the
Board of Attorneys Professional Responsibility) should have an
enforcement role. The latter idea won less favor among lawyers, with an
average score of 3.8, compared to 5.0 for judges and 4.6 for court
commissioners.
As for education about civility, 69 percent of respondents said
mandatory CLE for lawyers should include at least one hour on civility
rules. And 79 percent felt the same should occur in mandatory judicial
education.
One final note: Judges and court commissioners, too, manifest uncivil
behaviors at times, as noted in several respondents' anonymous
written-in comments. And while judges can reprimand lawyers when they
cross the line, lawyers have no such recourse.
The Stress Factor
Delving into causes of stress was a key focus of
the 2001 survey, in light of the 1999 finding that 91 percent of
respondents found their work life increasingly stressful. Several survey statements probed for causes of stress besides those
already mentioned above, namely incivility and the legal profession's
sinking public image. The survey found that:
- 91 percent of respondents agreed that lawyers must practice much
more "defensively."
- 90 percent indicated that the increasingly complex nature, breadth,
and specialization of the law make it harder to keep up every year.
- 85 percent said that the practice of law is not as economically
rewarding as it used to be.
- 66 percent agreed that lawyers can't economically serve the clients
who need their services.
Surfacing in both interviews and respondents' written-in comments
were other causes of stress, such as increased judicial workload, lack
of staff and resources for the courts, higher numbers of pro se
litigants, excessive district attorney and public defender caseloads,
lack of mentoring, an increasing "I want it yesterday" mentality in
today's world of e-mail and faxes, and malpractice worries - to name a
few.
Unreasonable client expectations are a chief stress-inducer,
attorneys report. "The public sometimes perceives that lawyering and
litigation are supposed to be war," says Fond du Lac attorney Nick
Casper, chair of the Bench-Bar Committee. "They create this expectation
that lawyers be aggressive. That feeds into the idea that lawyers aren't
supposed to be cordial to one another." And that, in turn, helps to
trigger the downward spiral of incivility and yet more stress. What's
more, when clients make bad decisions that lead to bad outcomes in
court, they often lay all the blame at the lawyers' feet.
Information overload is another key stressor for everyone, but it's
probably even more frustrating for the general practitioner. "I think
it's getting harder to be a small-town general practice lawyer or even a
smaller firm," Mowris observes. "In this day and age, it's hard to keep
up on too many areas of the law." He adds that the State Bar will try to
alleviate that difficulty by making available CLE covering limited areas
of the law. An attorney could go to the Internet to access recent
seminars and articles on specific legal areas.
Mowris also suggests that lawyers reach out more to each other for
help when they face a case that's not routine for them. "One of the
things I use," he says, "and I think others should use more is the
Lawyer-to-Lawyer Directory [part of the State Bar's annual Wisconsin
Lawyer Directory]. If you have a question about a matter that's
outside your area of expertise, call somebody."
Other Bar initiatives may help relieve other frustrations. For
instance, the Seize the Future project may help attorneys find ways to
serve clients who can't afford legal services, by looking into such
practices as unbundling or making better use of attorney-supervised
paralegals. The Public Trust and Confidence initiative aims to bolster
public opinion about not only the law profession, but also the whole
legal system.
In addition, stronger publicity efforts could show the public a more
complete picture of what lawyers and judges are about. Negative
publicity too often dominates. As just one case in point, Mowris cites
an incident in which a Wisconsin attorney defrauded several bankruptcy
clients. The lawyer never filed the clients' claims, but then took their
money and ran - a subject of much media coverage. "What the public
doesn't know," Mowris points out, "is that all attorneys pay into a
security fund to pay back people who have been ripped off by lawyers.
Plus, volunteer lawyers take over those cases to try to help people and
repair the damage done by a bad lawyer."
One bright spot did emerge, however, in this year's survey. When
presented with a statement that their practice "does not have much
impact or importance beyond the task they are conducting," 66 percent of
respondents disagreed. Or, to restate that positively, 66 percent
believe that what they do on the job every day does indeed matter.
"Despite the stress, the problems, and the disagreements we have,
most of us feel the law is a great and satisfying profession," Lamelas
says. "Maybe in future surveys we could include more questions about
what we do like about our jobs and what we can do to enhance that."
Wisconsin Lawyer
