About the Survey
Civility Rules Need Teeth, So Say Survey Respondents

1997 Bench-Bar Survey:
Views from Both Sides of the Bench

By Dianne Molvig

To spark a lively debate amongst a room full of judges and lawyers, all one need do is mention certain topics: judge substitutions; local rules of civil procedure; the role of court commissioners in the judicial system; civility within the legal profession; judicial salaries.

Those are just a few jurisprudence-related issues that can evoke strong opinions from attorneys and judges. Last spring, 1,154 randomly selected lawyers and all 405 active and reserve judges were polled on these and other subjects in the 1997 Bench-Bar Survey. For the first time ever, the State Bar's Bench-Bar Committee included attorneys in the annual survey that traditionally has only polled active judges. Of the survey sample, 698, or 45 percent, returned the questionnaires.

"I think a poll like this is helpful," notes Neal Nettesheim, a district II court of appeals judge and member of the Bench-Bar Committee, "if for no other reason than that it opens up lines of communication between bench and bar. It allows us to stay on top of matters that are of interest to both of us, and to search for where the problems lie and where they don't."

This year's bench-bar survey differed from previous ones in key ways. In past surveys, respondents answered in narrative rather than numerical form; thus the results were not amenable to statistical analysis. Also, previous surveys polled judges only and generally focused on a single subject. At the urging of Donald Leo Bach, a Madison attorney who chaired the Survey Subcommittee and now chairs the Bench-Bar Committee, the scope was broadened to solicit views of both attorneys and judges on multiple issues.

"The time was right to ask a lot of different questions," says Karri Fritz-Klaus, a Milwaukee attorney and immediate past-chair of the Bench-Bar Committee, "so that we could see what was important to people."

Questionnaire respondents were asked to register their level of agreement with 25 statements pertaining to 19 different issues. They marked their reactions on a numerical scale ranging from 1 for "strongly disagree" to 7 for "strongly agree." Those with no opinion on a statement circled 4 or left the scale blank. The tabulated results reflect the opinions of people who indicated a number other than 4.

The following sections present a synopsis of the survey's results.

Calls for change

Respondents voiced support for change, ranging from mild to strong, on various issues.

Judicial campaign financing. Lawyer and judge respondents alike strongly backed campaign financing reform for judicial races - two-thirds of respondents deemed the current system unacceptable. "Both judges and lawyers feel that campaign financing for judges is a different animal from campaign financing for politicians," Bach points out. "We don't want all that spending, the negative ads. The survey shows there is discomfort with the present system, but no one has a solution yet."

Civility. Nearly three-fourths of respondents believed the new rules of civility should not remain voluntary. The rules should be enforced by judges, said 85 percent of respondents. A little more than half agreed to some degree that the Board of Attorneys Professional Responsibility should be the enforcing body. And roughly 60 percent believed peer group enforcement should play a role.

"The civility rules are not having an impact on some people," says Fritz-Klaus, who notes that previous Bench-Bar Committee surveys were instrumental in pushing for the new civility rules. "Unless they know there are going to be some kind of sanctions, or that they'll be called to task for behaving the way they do or practicing in the style they use, they're not going to clean up their act. The survey results confirm that we have more work to do with these standards."

Public defender cases. One-fourth of respondents strongly agreed that more private bar attorneys should participate in public defender cases. Another 37 percent agreed at least somewhat with that position.

Preparation for pretrial conferences. Human nature may have come into play here: Both judges and lawyers viewed the other as needing to be better prepared for pretrials. Forty-four percent of respondents believed lawyers were sufficiently prepared, with the lawyers giving themselves better scores than did judges (4.3 versus 3.8, a statistically significant difference, according to the researchers who compiled the data).

Meanwhile, 59 percent agreed judges' preparation for pretrials was sufficient. Judges gave themselves more credit on this one than did lawyers. The judges' average score was 5.4, compared with the lawyers' rating of 3.9.

"Each side is sort of blaming the other," Nettesheim notes. "And I think there's a message in that. It's probably a pretty good signal that both lawyers and judges have to improve in this area."

Discovery abuses. The survey's statement "judges sufficiently control discovery abuses" drew disagreement from 57 percent of respondents. Lawyers disagreed more than judges, with an average score of 3.3 versus the judges' average rating of 4.4. In the eyes of at least one anonymous respondent, the survey should have delved deeper into this area. "The survey should have asked if judges have adequate information and means to enforce discovery abuses under current rules," the respondent wrote.

Mandatory counterclaims. Mandatory counterclaims appear to be of little or no pertinence to most respondents; 57 percent expressed no opinion. Of those who expressed an opinion, 68 percent believed state law should mandate counterclaims.

Cost statute. Survey respondents clearly want to see change in the cost statute; 71 percent did not agree that it adequately provides for recovery of actual costs. (The cost statute allows parties who win a case to recover their miscellaneous costs.) Lawyers and judges alike advocate modernizing this statute, to cover such expenses as photocopying and faxes.

Administrative law judges. More than half (56 percent) of respondents agreed the term "administrative law judge" should not be used to designate hearing examiners, who are not elected officials or subject to the judicial code of ethics. Sentiments in favor of dropping the title ran higher among judges than lawyers (5.3 versus 4.0).

Mediation. Seventy percent of respondents said that judges should become involved in mediation/settlement in civil bench trials if all parties consent. This result surprised Bench-Bar Committee members, especially some judges. "That finding is troublesome to me," says Dennis Moroney, a Milwaukee County circuit court judge and a committee member. "If the mediation ultimately breaks down, I would still have to try the case."

And that's where problems enter in, Moroney notes. A judge who has been involved in the roll-up-your-sleeves work of mediating a settlement can't simply shift back into the judicial role. "You want to have a neutral, detached magistrate," Moroney explains. "But if I've been involved in mediation, I can't be that."

Filing court actions. Lawyers and judges alike supported simplifying the way cases get into court in Wisconsin. Seven out of 10 agreed that every civil action of any nature brought in court should be by authenticated Summons and Complaint.

"Currently we have a grab bag of ways to get into court, depending on the subject matter," Bach explains. "We have writs of certiorari, Chapter 227 appeals, petitions. I think the feeling was strong to get rid of all these other ways of getting into court as far as form, and just do it by Summons and Complaint, which we do for probably 90 percent of the cases anyway." Such a change would require legislative action.

Law school teaching. More than one-fourth of respondents strongly agreed that lawyers and judges should do more teaching at Wisconsin's law schools. Another 55 percent agreed with that idea to at least some degree.

Support for status quo

Respondents' message on several issues was, "Leave things as they are." In some instances, that support was marginal; in others it was resounding.

Judicial substitution. Fifty-three percent of respondents strongly agreed that judicial substitution in civil cases should continue in its current form; another 20 percent agreed at least somewhat with that position. Only 12 percent strongly disagreed with it. In criminal cases, 68 percent of respondents fell somewhere on the "agree" scale, while only 19 percent registered some level of disagreement.

No one would be surprised that lawyers more strongly favor substitution than do judges. The lawyers' average ratings were 6.1 and 5.9, respectively, for substitution in civil and criminal cases. Judges' average scores (4.5 and 4.4) also fell on the "agree" scale, which may surprise some observers.

"You hear a lot of rumblings sometimes when you talk to judges that we should get rid of substitution," Nettesheim says. "But this survey didn't bear that out. A significant number of judges still see [substitution] as an important safeguard."

Alternative dispute resolution. Of the respondents expressing an opinion on this issue, nearly three-fourths agreed to some extent that alternative dispute resolution (ADR) was working well to settle cases. Also, 77 percent agreed that ADR saves time and money. Interestingly, respondents who graduated from law school after 1985 were less supportive of ADR.

Roughly 40 percent of respondents, however, had no opinion on ADR. "Those who have used it feel positive about it," Bach observes. "I think the conclusion we made on the committee was that ADR is here to stay."

Judicial pay. Fifty-six percent of respondents disagreed that, "Judges are not paid enough." Judges and lawyers split widely on this issue; the average judges' score was 6.0, and lawyers averaged 3.6. The divergence of opinion between judges and lawyers dismays some observers, among them Judge Nettesheim. He points out that today some assistant district attorneys, assistant attorneys general and court commissioners are paid more than judges.

"I wonder," Nettesheim says, "just how many lawyers appreciate that in some instances now, when you walk into a courtroom and you see government-paid people as the principal actors, the judges are among the lowest paid of those people. I don't say that to deny the others their rightful compensation. But I do know from talking to many judges that that state of affairs is increasingly frustrating and disappointing for judges. Some judges even consider it degrading. I think the disparity is a fact not many people are aware of."

Local rules of civil procedure. Traditionally, judges favor having local rules of civil procedure so they can better control their courts, while lawyers see local rules as a trap for outsiders. That divergence of opinion showed up in the survey results. Fifty-four percent of all respondents disagreed that, "Wisconsin should abolish all local rules of civil procedure." But judges disagreed more strongly than lawyers (average ratings were 2.8 versus 4.5).

"This problem has been ameliorated somewhat," Bach points out, "because you can get to the local circuit court rules on the State Bar's Internet site. You don't have to buy a book anymore, or write and ask" to get the rules.

Judicial appointment versus election. Sixty-three percent of respondents disagreed to some extent that judges should be appointed, not elected. Lawyers and judges were in close agreement on this issue.

Some observers believe this issue must be examined alongside the earlier question on judicial campaign financing; two-thirds of respondents don't like the current system. Yet roughly the same proportion want elections, not appointments. Something has to give, some say. "The bottom line is that you either have to have extensive campaign financing reform, or you have to seriously look at alternatives to elected judges," Moroney contends.

Interestingly, as of March 1996, 34 percent of Wisconsin's sitting circuit court judges had reached the bench by appointment, not election, according to the state court's office.

Split decisions

Opinions ran about even on a few survey questions.

Court commissioners. No surprises here; respondents split down the middle on whether court commissioners should be given more power and authority. Disagreement ran at about the same level amongst judges and lawyers, although about 15 percent of total respondents registered no opinion. "We expected this kind of result," Bach says. "This is another issue for which the survey will serve as a vehicle for discussion, but it's not something the survey is going to solve."

Mandatory interrogatories. Respondents split 50-50 on whether Wisconsin should use mandatory interrogatories and other mandatory disclosures to require parties to divulge certain information when filing a lawsuit. Neither lawyers nor judges expressed an overwhelming desire to adopt something like the federal rule on the state level.

Judge rotations. Respondents also divided evenly on whether judges should rotate through different courts or stay in one area to develop specialized expertise. Lawyers were more in favor of dropping rotations than judges (scores of 4.3 versus 3.5, a statistically significant difference).

Now what?

Overall, the survey's findings revealed surprises in some areas and confirmed long-held assumptions in others. The Bench-Bar Committee almost certainly will target particular matters, such as civility and revising the cost statute, for further action. The committee will make its recommendations to the Board of Governors, who will then decide whether to advocate for changes in those areas. Other hot-button issues, such as the role of court commissioners and judicial substitution, will continue to be debated, with the Bench-Bar Committee recommending no specific action.

"We on the committee reflect the survey participants as a whole; we're not in agreement on all these questions either," Bach points out. "We hope the survey will encourage lively discussions among all lawyers and judges in the state because these are important issues. If we accomplish that, we'll be happy with the survey's results."

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