Wisconsin Lawyer
Vol. 79, No. 4, April 2006

2005 Bench and Bar Survey:
Lawyers and Judges Assess Key Issues Affecting the Legal System

Sidebars:

• Key Findings of the 2005 Bench and Bar Survey

by Dianne Molvig

hether you're an attorney, a judge, or a court commissioner, probably no day goes by without noticing some aspect of the justice system you wish you could change.

Every two or three years, Bar members get a chance to voice such concerns through the State Bar's Bench and Bar Survey. In 2005, a random sampling of 2,000 resident Bar members received survey questionnaires. Of those, 716 lawyers and 249 judges/justices responded, for response rates of 35.8 percent and 54.4 percent, respectively. Overall, the respondent group broke down as 72 percent attorneys, 22 percent judges, and 6 percent "other," mostly court commissioners.

The questionnaire presented 20 statements to which respondents could register their level of agreement on a seven-point scale, from "1" for strong disagreement to "7" for strong agreement. Marking a "4" indicated no opinion; analysts excluded these responses in calculating average scores. In addition, a few questions asked respondents to either check their choices among several options or fill in written comments.

Bench and Bar Committee chair Daniel Floeter, a Dane County court commissioner, notes that some survey questions pertain to complex and even touchy issues - and some people may not want to hear some of the answers. "But we're laying out all the answers," he says, "so that the bench, the bar, the Bar association, the supreme court, and others can see what the heartbeat and pulse of the legal profession are today on these issues."

Some questions are new to the 2005 survey; others are repeats and offer the opportunity to gauge attitudes over the years. Below are the survey's findings and, when possible, comparisons to earlier biennial surveys.

New Topics

Mandatory pro bono. The survey tackled this heated issue by asking respondents if they agreed with the statement: "The Wisconsin Supreme Court should not require mandatory pro bono work (or equivalent financial contribution) as a condition of practicing law." Eighty-one percent agreed, with 61 percent marking "strongly agree." Lawyers' average score was 6.0, compared to 4.7 for judges.

"I think when you drill down into that question, it's not that lawyers are opposed to pro bono," says Madison attorney Michael Anderson, chair of the Survey Subcommittee of the Bench and Bar Committee. "But they're reluctant to have mandatory pro bono."

Many respondents wrote in comments on this issue. Some respondents protested that some contributions they make in their communities wouldn't qualify to meet the pro bono requirement. One respondent wrote, "I get enough lawyering done at work. I strongly prefer to serve my community outside of legal matters."

Several respondents noted that a sizable portion of their regular legal work is, in effect, pro bono, whether that be low-paying public defender or legal services cases or regular clients who can't afford to pay. "I used to call that subsidized pro bono," says Floeter, who practiced in a small firm in Oregon in Dane County before becoming a court commissioner nine years ago. "As a small practitioner you write off a lot of stuff. The average person saves to buy a car or a house, but not for the day they need an attorney. They don't have an item for that in their budget."

Code of Judicial Conduct. Sixty-nine percent of respondents agreed that the Code of Judicial Conduct ought to be included in law school ethics courses and lawyers' ethics continuing legal education (CLE). "Ask a lawyer on the street what the Code of Judicial Conduct is," Anderson notes, "and you'll get a blank stare from many of them." Discussion of the code in law students' and lawyers' courses could help remedy that. After all, Anderson points out, judges, having once been lawyers, are aware of the code under which lawyers must operate. Why not the reverse? Mutual awareness of both codes "would promote a better understanding of the other person's role," he says.

Costs of disciplinary proceedings. Respondents could choose from four options regarding how the Wisconsin Supreme Court should charge costs for disciplinary proceedings against attorneys. Currently, the court usually imposes the full cost of the proceedings, including legal fees, against an attorney who is found to have violated one or more of the Rules of Professional Responsibility. If the court dismisses some of the charges brought by the Office of Lawyer Regulation (OLR) or opts for a lesser discipline than the OLR requested, the attorney still pays the full cost. Thirty-seven percent of survey respondents favored continuing this policy.

A second option offered was to permit apportionment of costs, which, the survey noted, might require an increase in the annual OLR assessment to lawyers. Thirty-six percent favored this policy.

Two other choices were the "American Rule" and the "English Rule," both of which might require increases in annual OLR assessments to lawyers. Under the American Rule, litigants each pay their own attorney fees. Thus, a disciplined attorney would not have to pay fees the OLR incurred in proving a violation. Only 9 percent chose this option.

Under the English Rule, the losing party pays the prevailing party's attorney fees. This is much like the current policy, except that the OLR would have to pay attorney fees when an attorney prevailed on all counts. This option drew favor from 17 percent of respondents.

In other words, opinions registered all over the map. What's significant, Anderson suggests, is that only 37 percent favored continuing the current system. "I see 63 percent saying they would opt for something other than the current system," he says, "even if it means their annual OLR assessment goes up."

Wisconsin courts' performance. The survey asked: "Do you believe Wisconsin courts are performing any less effectively than they were five years ago as a result of inadequate funding?" Thirty-seven percent of respondents said no, 36 percent said yes, and 27 percent had no opinion.

Although overall opinions were split, judges had stronger feelings. Fifty-nine percent of them answered yes, compared to 27 percent of attorneys. Another question asked those who said yes to list examples of how the courts had become less effective. We'll explore this later in the article.

Fear of retribution. Two survey statements probed whether lawyers were reluctant to file complaints against judges and court commissioners for fear of retribution. Eighty-two percent agreed to some extent that lawyers feared such retribution against themselves; 69 percent said attorneys feared retribution against their clients. Lawyers' mean score was 5.3, and judges' was 3.0.

Administrative law judges. Ninety-three percent said administrative law judges should be subject to rules of discipline and disability similar to the Code of Judicial Conduct, which applyies to judges and court commissioners.

Issues Revisited

Electronic filing. Support for electronic filing of documents, including summonses and complaints, continues to creep upward. This survey found 76 percent in support, up from 72 percent in 2003, 65 percent in 2001, and 68 percent in 1999. Lawyers were more in favor than judges, with average scores of 5.5 and 4.6, respectively.

Like many attorneys, Wausau lawyer Christine Olsen, a Bench and Bar Committee member, sees electronic filing as much more efficient than current procedures. Rather than mailing in documents far enough in advance to assure making deadlines, or running down to the courthouse if necessary, "We could push a button," she says, "and file documents instantaneously. It would save that extra time."

Interestingly, many attorneys' write-in comments pointed to needs much less high-tech, such as more use of the telephone in motion hearings, scheduling conferences, and other routine court business. Some judges still require personal appearances for everything, which lawyers see as devouring valuable time. As one attorney wrote, "No lawyer or private citizen should have to waste four hours waiting to have their case `pre-trialed.'"

Civility. Most in the profession continue to feel that incivility adds significant stress to their work life. This survey found 73 percent expressing that view, compared to 71 percent in 2003 and 78 percent in 2001.

"I think incivility is symptomatic of other stresses," says Richland County Circuit Court Judge Edward Leineweber, a Bench and Bar Committee member. "There are a lot of pressures on attorneys and judges. I think we're facing some difficult situations in the courts. And the worst in people will come out in difficult situations."

That, of course, doesn't justify uncivil behavior. One survey respondent noted, "Temper tantrums on the bench, at counsels' tables, and even in offices are inexcusable. No wonder lawyers are the butt of nasty jokes."

The perplexing part is to figure out what to do about the problem. As one respondent bluntly stated, "One hour [of civility training] won't make a jerk nice." Still, most respondents said that keeping civility in the spotlight is beneficial. Sixty-three percent agreed that mandatory CLE for lawyers should include at least one hour on civility rules, and 73 percent agreed judges should get at least an hour of civility training in mandatory judicial education.

Discovery abuses. Seventy-six percent of respondents agreed the civil discovery process is abused, compared to 72 percent in the 2003 survey. The new survey asked respondents for ideas on how to reduce abuses. Among hundreds of comments, several prominent themes emerged.

Lawyers and judges alike called for stronger sanctions of abusers and more use of existing sanctions. They advocated setting limits on the number and length of interrogatories. One respondent wrote, "Some courts do limit the number of interrogatories unless good cause is shown to serve more. That's a good restriction that could be expanded to all state courts." Several also suggested use of mandatory disclosures and interrogatories (more on this later).

Still others noted that greater civility would go far in cutting discovery abuses. As one respondent wrote, "Teach lawyers the ethics of discovery. It's simple, really. It boils down to two principles: Do not harass; do not hide."

Mandatory interrogatories. Respondents were somewhat split on whether Wisconsin should require the use of mandatory interrogatories and other mandatory disclosures when a suit is filed, much like those required by Rule 26 of the Federal Civil Rules of Procedure. Fifty-six percent of respondents disagreed with this idea, while 46 percent disagreed with it in 2003, 48 percent in 2001, 49 percent in 1999, and 50 percent in 1997.

Mandatory clerkship or internship. Among respondents, 58 percent disagreed that a one-semester clerkship or internship should be required of anyone wishing to practice law in Wisconsin. This compares to 56 percent in 2003.

Although Anderson sees merits in the proposal, he raises practical questions. "Would there be enough clerkships and internships available for everyone?" he asks. "Would they be supervised? It does no good to have someone show up at a lawyer's office and just hang out. This may be a good idea that would be hard to implement."

Olsen adds that at least at Wisconsin's law schools, students have many options to gain an internship or clerkship experience, just as she did, but she questions making it compulsory for all. "Some don't want it or need it," she points out, "because they're going to do something else with their law degree."

Contractually mandated arbitration. This topic was explored in 2003, but the 2005 survey approached it differently, by presenting three statements rather than one. Results showed that 47 percent agreed contractually mandated arbitration is fair, 62 percent agreed it's efficient, and 46 percent agreed it's inexpensive. In 2003, with the three factors lumped together in one statement, 52 percent rated mandated arbitration as fair, efficient, and inexpensive.

In the survey, judges tended to view arbitration somewhat more favorably than attorneys - not surprisingly, given that arbitration helps to keep clogged court calendars from getting even worse, notes Milwaukee attorney Kevin Lyons, chair of the Bar's Alternative Dispute Resolution Section. The vast majority of civil suits settle before trial anyway, he adds, and judges need not be the ones to settle them.

Lawyers' ambivalence about mandated arbitration stems from two factors, as Lyons sees it. First, when a consumer buys a product and agrees that any claim against the manufacturer will go to arbitration, "There's a sense that it must not be fair because of the different sizes of the parties," Lyons explains. "It's David against Goliath."

The other doubt Lyons sees hanging over arbitration is that lawyers who do trial work fear they'll lose business. In his practice, Lyons does both litigation and arbitration. In the latter, he serves as counsel for clients involved in arbitration and also as an arbitrator himself.

"One of the things I've tried to do with the ADR Section this year," he says, "is to reach out to other sections, particularly ones where that fear might be lurking. I try to explain that ADR won't reduce their volume of business, but it will change how they conduct some of that business. Lawyers have those skills - gathering evidence, assembling it into a coherent case, and communicating that case effectively - that you use in arbitration, also."

But arbitration has its down sides. Some survey respondents commented that arbitration is a waste if the opposing side already has decided to go to trial, no matter what. Clients end up investing time and money into both arbitration and a trial, costing them more.

On the other hand, Lyons has seen clients adamantly opposed to using arbitration - until they tried it. Arbitration, he notes, offers clients the chance to get to win-win, rather than the win-lose of litigation, which also has its place. But, he says, "I think society is better off with win-win being in the mix."

Other findings. Below are results on other issues revisited in the 2005 survey:

• 66 percent of respondents agreed that Wisconsin's rules of appellate procedure are too complex; 71 percent said they're too time-consuming. Percentages have hovered at this level since the 1999 survey.
• 59 percent disagreed with the statement that the current system of judicial campaign financing is acceptable (72 percent in 2003, 69 percent in 2001, 71 percent in 1999, and 67 percent in 1997).
• 81 percent agreed that the practice of law is not as economically rewarding as it used to be (89 percent in 2003, 85 percent in 2001).
• 51 percent agreed there are too many lawyers in practice today for the amount of work to be done (52 percent in 2003, 53 percent in 2001).

Probing Deeper

Three open-ended survey questions asked respondents to:

• Name one thing they would change immediately, if they could, in their practices (lawyers) or in the judicial process (judges/commissioners).
• List issues the Bench and Bar Committee should address to improve the delivery and administration of justice.
• List examples to support their answer if they had checked "yes" on the question of whether Wisconsin courts are performing less effectively now than they did five years ago because of inadequate funding.

For the first two of the above questions, lawyers tended to cite many of the same issues. Their responses were extremely diverse: stress, excessive workloads, economic difficulties, incivility from judges and other lawyers, mandatory pro bono, discovery abuses, and much more.

For judges and court commissioners, the three above questions tended to merge. That is, inadequate funding of the courts was what they most wanted to change and the key issue they felt the Bench and Bar Committee ought to address.

As examples of the effects of funding cuts, judges and commissioners listed case overload, lack of staff such as law clerks, security concerns, calendar backlogs, and inability to bring in reserve judges, among other problems. They noted that the state has added no new judges since the late 1990s, while counties are slashing budgets for court support staff. One respondent said, "In my county, the caseload has doubled in 10 years. We have the same number of judges we had 40 years ago."

Others spoke of the ripple effect of budget cuts throughout the legal system. One wrote: "Staff shortages in court reporters, assistant district attorneys, public defenders, clerk of court employees, probation and parole officers, social workers, State Crime Lab and [State] Hygiene [Lab] employees - all contribute to cancellation of hearings, delays in hearings, and a general slow-down in court functioning."

At the Public Defender's office, for instance, "We're doing more with less," says Kelli Thompson of the Madison State Public Defenders (SPD) office, and a Bench and Bar Committee member. Without enough staff attorneys, the SPD relies more heavily on private-bar attorneys. "We have some fantastic private bar attorneys who do our cases," Thompson adds, "and they're making only $40 an hour." One respondent wrote this is "still the same $40 an hour as when I started 25 years ago!"

Meanwhile, the SPD income eligibility standard remains at nearly 20-year-old levels. More people "fall into that in-between gap," Thompson says, "where they can't afford an attorney, they don't qualify for public defender representation, and they become a county responsibility." Ineligibility for public defender or legal services representation results in another problem cited often in survey comments: burgeoning numbers of pro se litigants, putting yet more demands on the courts.

Space doesn't allow covering the many points respondents raised. But in sifting through hundreds of their comments, the reader comes away with the sense that many judges, attorneys, and court commissioners see an increasingly dire situation.

And budget cuts are just one force at work here, notes Leineweber. "The various players who have influence on what happens in the courts keep adding work," he says, "by creating new causes of action, more complex statutes, adding timelines that are totally unrealistic based on our resources. We're seeing that reflected in the survey - the pressures of increasing the role of the courts and the demands on the courts, while at the same time the resource allocations are constrained or reduced."

One respondent pointed to skewed priorities, writing, "When road builders were $280 million over budget, no one said anything. [When] courts need an additional $3-4 million, everyone is upset."

And that raises "a larger issue," Floeter says, "that the Bar association and the courts need to address: explaining to people how vital the courts are to our way of life."

Wisconsin Lawyer