Vol. 72, No. 12, December 1999

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."

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