Vol. 72, No. 12, December 1999

Practice Tips

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Court Orders Use of Standard Court Forms

Arguments for Mandatory Forms

Among the most visible proponents of the new supreme court order are the Records Management Committee (RMC), the Director of State Courts Office, the Wisconsin Clerks of Circuit Court Association, and the Wisconsin Juvenile Court Clerks Association. The Records Management Committee filed a "Memorandum of Support" for the new supreme court order, dated Aug. 13, 1998.

The RMC's memorandum indicated that the committee "provides a single authoritative voice for standardizing the creation and updating of forms for use in the courts of Wisconsin. The committee ensures that all forms are created and maintained so as to be consistent with Wisconsin statutory and case law."

The RMC argued that forms authorized by statute are not always used on a consistent basis in all courts of Wisconsin, and that local judges and parties often develop their own forms or modify the forms developed by the RMC to reflect local situations and individual interpretations of the law. The RMC contends that the result is that "the practice of law and the interpretation of statutory language can vary from one court to another."

The memorandum identified the following additional arguments:

• Inconsistency and variety creates difficulty for the user in completing the paperwork required;

• Inconsistent use of statutory language and obsolete or obscure terminology causes confusion;

• There is confusion among judges, clerks, registers, state agencies, and law enforcement about the contents and enforceability of orders;

• Increased use of technology to distribute forms heightens the likelihood of problems;

• Uncontrolled form development and use no longer meets the needs of Wisconsin citizens and the users of the court system;

• Several states have by statute or court order created mandatory forms in some situations (North Carolina, Michigan, Oregon, Washington, California, and Vermont were noted); and,

• Creation of a unified, single-level trial court system makes it essential that practice and procedure, as well as forms and court records, be standardized to ensure that justice is provided at comparable levels throughout the state.

The RMC's memorandum noted that the development of automation generally, and the Circuit Court Automation Program (CCAP) in particular, requires increased standardization. The RMC argued that economic, technical, and human resource demands require such action.

Arguments Against Mandatory Forms

The State Bar of Wisconsin has been critical of Order 98-01 as it developed and has sought input in the forms process. The Bar's opposition was set forth in detail in a Sept. 15, 1998, "Statement of the State Bar of Wisconsin in Response to the Amended Petition by the Director of State Courts." At its September 1998 meeting, the Bar's Board of Governors adopted a resolution drafted by attorneys William Mulligan and Thomas Shriner that opposed an order mandating the use of forms by attorneys.

In its September 1998 statement, the State Bar opposed "the feature of the proposed rules that would make use of standard forms prepared by the RMC mandatory for attorneys." The Bar contended that "the adoption of rules requiring the mandatory use of forms by attorneys would have a severe and deleterious effect upon licensed attorneys and the practice of law and would not be in the public interest."

Other arguments the Bar advanced were:

• The order will "deprofessionalize the practice of law";

• The order will encourage the legally untrained to prepare and file documents with the courts without an understanding of the legal consequences or whether the forms are legally correct and sufficient;

• Section 802.05 (signing of pleadings, motions and other papers; sanctions) as a screening mechanism for rivolous litigation would "effectively be eviscerated";

• Pro se litigants may use the standard forms in lieu of seeking appropriate legal advice from an attorney;

• The availability of forms will discourage resort to counsel as litigants may think that all they need to do is check the boxes on the forms;

• The experiences of the unified single-level trial court and the use of technology have not demonstrated the need for mandatory use of standard court forms; and,

• It will take more time to use the mandatory forms and such pleading will result in higher fees to clients.

The Bar's statement noted the six states referred to in the RMC's memorandum of support and observed that Vermont requires mandatory use of court-developed forms for pro se litigants, but not for attorneys. The Bar suggested that Wisconsin "ought to follow the Vermont approach."

Other Comments About the Order

A Jan. 15, 1999, letter from the State Bar responded directly to an invitation to present the Bar's input on this proposal. That letter stated that the supreme court was "amenable to a process that would provide for State Bar input prior to promulgation of forms proposed" by the RMC.

In the letter, the State Bar reported that various Bar divisions and sections had reviewed existing RMC forms. An overriding theme of the comments the Bar received was "that while there may be no objection to a specific form, particularly for use by pro se litigants, there is a strong objection to mandatory use." (Emphasis included.) In addition, the Bar's letter identified concerns about attorney input in the process and compatibility of forms with law office computers.

The Bar's Family Law Section objected to the "all mandatory, all the time" form requirement and was concerned about possible lack of flexibility and creativity. The section noted that pro se litigants might benefit from mandatory forms.

Attorney William Mulligan mentioned that the State Bar's primary concern is that "the process and the mandatory nature of the forms places form over substance." He added that "attorneys have an obligation to ensure appropriateness of documents filed and we will have to modify forms to comply with the committee's requirements."

Sheboygan County Circuit Court Judge John Murphy, chair of the RMC's Forms Subcommittee, responded to the Bar's concerns in an April 30, 1999, letter to the supreme court. Judge Murphy wrote that the Bar had been invited to appoint two attorney representatives to the RMC's Forms Subcommittee. Regarding the revision of forms, he wrote, "It is now and always has been the philosophy of the Forms Subcommittee that every one of our hundreds of forms are works in progress. No form is etched in stone." According to Judge Murphy, the Forms Subcommittee has "agreed to ask members of the various Bar sections to assist us with regard to forms within the area of interest of the section."

On the very practical matter of computer compatibility with the various forms, Judge Murphy stated that all forms should be available for computer use. On the issue of the mandatory nature of the order, Judge Murphy stated, "We as a committee do, however, strongly believe that because of what we have done in the past and what we intend to do in the future, the forms created by the committee should be required for use throughout the state."

David H. Nispel, U.W. 1984, is deputy chief counsel with the Wisconsin Department of Employe Trust Funds, is the City of Middleton municipal court judge, and is a hearing examiner for the City of Madison. He also operates his own Madison law office. As part of his private practice, he monitors the Wisconsin Legislature for the Wisconsin Clerks of Circuit Court Association.

Both Judge Murphy and Taylor County Circuit Court Judge Gary Carlson, the former chair of the Forms Subcommittee, observed that there simply are not a lot of forms that affect private attorneys. As for the concern about new forms being created to affect private counsel, Judge Murphy stated that he sees the process "staying pretty much like it is and not affecting private attorneys any more than now." Judge Murphy stated that the issue of assessing fees or costs for noncompliance has not yet been finalized. He surmised that "either a local rule or district rule probably will apply and the chief judge of each district may have to decide."

On the question of attaching supplemental sheets to the mandatory forms, Judge Murphy stated that this is a matter of common sense. He added that parties can "attach sheets to the forms as needed."

Closing Thoughts

Will Order 98-01 be a step backward for Wisconsin law by placing form over substance, introducing delays by filing revised forms, and increasing the cost of litigation for everyone in the system? Will the new order be a step forward for Wisconsin law by ensuring consistency of the use of forms filed in courts, making the legal process easier for users, and allowing all participants in the legal system to have more confidence in uniform treatment? As is so often the case in life generally, and the law specifically, the ultimate outcome may lie somewhere between the two positions. In any event, a process is in place that encourages discussion, allows for review and objection, and encourages cooperation. It all begins on Jan. 1, 2000.