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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.

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