Vol. 72, No. 12, December 1999

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1999 Bench-Bar Survey

Interrogatories also relate to civility. About half of respondents (51 percent) agreed that Wisconsin should mandate the use of mandatory interrogatories and other mandatory disclosures. And 82 percent stated that there should be a mandated limit on the number of interrogatories. Judge John Shabaz notes that rules already exist to control discovery and interrogatories abuses in federal courts. "The federal judiciary has been concerned about that, as has the federal judicial council," Shabaz says, "because the length of time suggested for this type of activity is many times meaningless and expensive."

The federal rules stipulate that each side may conduct no more than 10 depositions in a case and can issue no more than 25 questions in one interrogatory, unless approved by the court. "Those limits are on the books," Shabaz says. "But although you can limit the number of depositions, you still have to look at the time involved. Depositions can go on for days and days, as they sometimes do." To address that problem, the federal system is considering a proposed rule to limit a deposition to no more than seven hours.

The rules that already exist have helped, Shabaz believes. "I've found them to work in this court," he reports. "The time of trials has been significantly reduced. And I think the rules are such that they give the authority to resolve matters in a more expeditious way."

Other Calls for Change

Counterclaims is another area stirring high concern among survey respondents, 79 percent of whom stated that the state's statutes on counterclaims should be amended to conform to the state supreme court's decision in the ABCG Enterprises case. Currently, Wisconsin has no mandatory counterclaims statute. Such a statute would require that if a party is sued, that party must bring forward in the same trial any countersuits in any way related to the original suit. Failure to bring up the counterclaim at the same trial would result in forfeiture of the right to sue on a related matter.

But in ABCG Enterprises, the Wisconsin Supreme Court ruled that although the state lacked a mandatory counterclaim statute, a counterclaim had to be brought forward in the same trial - for the sake of judicial efficiency. The upshot: Lawyers who read only the statute and abide by it set themselves up for having a countersuit thrown out of court - and perhaps being slapped with a malpractice suit. The vast majority of respondents want that pitfall eliminated by bringing the statute into conformity with existing caselaw.

Also drawing a strong response was another new survey statement: "The rules of appellate procedure for Wisconsin cases are too complex and time-consuming." Seventy percent of respondents agreed. "I think there's something to be said for at least taking a look at that," Nettesheim says. "Those rules are very complex. I've been on the court of appeals for 15 years, and I still find myself occasionally having to go back to the books to try to figure out a particular nuance of an appellate procedure."

Drawing even stronger support was a statement that the procedure laid out in the statutes for making claims against government entities needs to be simplified and made easier for users. Eighty-six percent of respondents agreed with that position. One respondent, for example, described the statute's notice provisions as "swords used to defeat valid claims."

Another hot issue is judicial campaign financing reform. Seventy-one percent of respondents think the current system is unacceptable, a slightly higher proportion than in 1997. Judges were less likely than lawyers to deem the current system as acceptable (average scores of 2.5 versus 3.1).

On the issue of judicial pay, respondents reversed the finding of two years ago. When presented with the statement, "Judges are not paid enough," 61 percent agreed, compared to 44 percent in 1997. This is a perplexing finding, Bench-Bar Committee members admit, as there's been no organized effort in the last two years to rally support for better pay for judges.

Other calls for change cited in the survey include:

• 58 percent think the title "administrative law judge" should not be used (56 percent in 1997).

• 68 percent would like to see judges become involved in mediation/settlement if all parties consent (70 percent in 1997).

• 76 percent prefer that any civil action brought to court be authenticated by summons and complaint (70 percent in 1997).

• 68 percent would like to be able to electronically file all documents, including summons and complaint (new survey item).

• 61 percent feel that holding one Bar convention a year would be better than two (new item).

Calls for No Change

In certain areas, lawyers and judges prefer that current practices or procedures remain in place. While judge substitution remains a contentious issue - especially in rural, one-judge counties where substitution means judges can spend lots of time on the road - 72 percent of respondents agreed that substitution should continue in its present form in civil cases, with 55 percent marking "strongly agree." Lawyers' average score far outstripped judges: 6.3 versus 4.4. As for criminal cases, 71 percent of all respondents agreed that substitution should continue, with the lawyers' average score again higher than judges' (6.2 versus 4.4). The percentages on these two survey items were about the same as those found in the 1997 survey.

A slim majority, 52 percent, disagreed with the statement, "Wisconsin should abolish all local rules of civil procedure." Lawyers were more likely to agree with the statement than judges (average scores of 4.5 versus 2.9). "To some extent," Gallagher notes, "the way the law stands now we have to have local rules, such as in small claims and juvenile cases." Local rules vary widely in sheer number: Some counties have one page of rules; Milwaukee County has 35 pages. The rules "sometimes trap the unwary," Lazar says, "for example, if you find out that a court wants a document to be only so long, or that another court says you have to file in 10 days instead of 15. I'm sure lawyers get trapped by local rules because they just assume something."

One consolation is that it's much easier these days to find out what local rules are. Every court has its rules on the Internet, and private groups also publish books containing all county rules. For instance, readers can access local court rules online.

Support for the way things are also cropped up in respondents' reactions to the statement, "Lawyers should not be constrained in discussing civil cases with the press if their client consents." Nearly 60 percent of respondents disagreed with that statement, with judges expressing more disagreement than lawyers (scores of 2.9 versus 3.9). Respondents also disagreed with the statement, "Attorneys' fees should be awarded to the winning party in all cases." Sixty-five percent did not favor the idea.

Finally, 69 percent of respondents want judges to continue to win their seats by election, rather than appointment - even though, as noted earlier, they want changes in how candidates for those elections get their financing. The proportion is up from 59 percent in the 1997 survey. Several respondents wrote in comments to suggest a hybrid system: initial appointment by a nonpartisan body, followed by election a few years later to stay in office.

Looking Ahead

Will actions result from the findings of this survey? That depends on what happens when the Bench-Bar Committee makes it recommendations to the Board of Governors. The committee also will pursue its own initiatives on key issues, such as launching pilot projects in a couple of jurisdictions to experiment with attorney peer review of civility problems.

The survey will continue from time to time as an instrument to take the pulse on various bench/bar concerns. Noting that the Bench-Bar Committee is open to suggestions from other Bar committees and sections, Lazar says, "We're already starting to form some questions for our next survey," which will be conducted in 2001.

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