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Supreme Court considers mandatory use of standard court forms
"The practice of law is more than making check marks and filling
blanks in forms. This proposed rule would de-professionalize the
practice of law and encourage the legally untrained to prepare and file
documents with the courts without an understanding of the legal
consequences," says State Bar Board of Governors member William J.
Mulligan.
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Mulligan's statement concerns a petition the director of state courts
filed in June on behalf of the Judicial Conference's Records Management
Committee (RMC). The petition, which was published in the August issue
of Wisconsin Lawyer, requires the Judicial Conference to develop
standard court forms for mandatory use in civil and criminal actions in
the circuit court or in any other court as directed by the Wisconsin
Supreme Court or Legislature. Upon reviewing the petition and its
supporting memorandum and discussing the issue with members of the
Judicial Conference, Mulligan and fellow board member Thomas L. Shriner
drafted a resolution opposing the petition, which passed unanimously at
September's State Bar Board of Governors meeting.
The court held a public hearing on the issue Sept. 17. Appearing on
behalf of the State Bar, Mulligan explained the resolution recognizing
the benefits for the Judicial Conference to develop forms for the use of
the circuit courts, their personnel, and pro se litigants, but opposing
giving the conference the authority to mandate the use of forms by
attorneys. The resolution also contains a request that representatives
of the State Bar be part of all future efforts to develop forms for use
in Wisconsin courts.
According to Mulligan, "Instead of getting legal advice, people will
be able to get these forms that the Judicial Conference finds legally
sufficient and just check boxes. It goes contrary to what clerks have
always said to the public " 'I don't practice law, you'd better get a
lawyer.'"
"By crafting legally appropriate legal documents and signing them,
attorneys certify that the document is well-grounded in fact. However,
with mandatory forms, if an attorney submits his or her own legally
correct document, but not on the approved form, he or she will have to
resubmit it using the RMC form, adding extra cost and time to the
process. This is a true example of form over substance."
Members of the RMC say mandatory standard forms are necessary for
several reasons, including the elimination of obsolete or incorrect
forms and inconsistent use of current forms. Mandatory forms also ensure
that justice is delivered at comparable levels statewide, and that the
increasing number of pro se litigants are properly served. The committee
points to several states that have similar forms or form
requirements.
Hon. Gary L. Carlson, a member of the Judicial Conference, suggests
that the standardized forms would fit the facts of any particular case
95 percent of the time. In the cases where a form would not fit,
attorneys could change the forms provided they follow the Judicial
Conference's rules on modification of forms. The forms would be
available free of charge from clerks of courts and on the Internet.
At the hearing, the court decided to withhold action on the petition
to allow the State Bar to review the proposed forms. The Bar will have
90 days (upon receipt of the forms from the RMC) to provide specific
critiques of the forms. The court will take up the matter again after
the 90 days has passed.
For more information, contact William Mulligan at (414) 276-0200.
Wisconsin Lawyer