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 Taking
the Profession's Pulse
The Local Rules Quagmire
A survey statement garnering one of the strongest
reactions pertained to local rules of civil procedure. Eighty-five percent
of respondents agreed that Wisconsin should standardize local rules as
much as possible. The most avid support came from lawyers,
who had an average score of 6.0 on a 7 point scale, but scores also ran
high among judges (5.2) and court commissioners (5.3). It's interesting
to compare this year's response to that of a differently worded question
on this issue in the 1999 survey. When asked whether local rules should
be abolished, only 48 percent agreed. Replacing the word "abolished" with
"standardized" elicited vastly different reactions this year.
Lawyers contend that variations in local rules often ensnare attorneys
who come from the outside to practice in a county. Attorneys who practice
in several counties - as many believe they must to make their law practices
economically viable - must stay informed about several sets of varying,
sometimes contradictory local rules. They do get help with that task.
Local rules often are available in publications from various sources and
on the State Bar's Web site at www.wisbar.org. But problems remain.
"Many counties haven't reduced their rules to writing," points out Madison
attorney Gerald Mowris, State Bar president. "Then lawyers have to call
people in that county to find out what's going on. We shouldn't have to
do that." Standardization of many rules would reduce the problem, he adds,
or, failing that, all counties' rules should be made available in an up-to-date,
easily accessible printed or electronic format.
Another problem is that local rules tend to take on a life of their
own. Ongoing scrutiny to weed out superfluous, burdensome local rules
is lacking. As just one example, Eau Claire attorney Pam Veith had a family
law case in another county in which the court commissioner issued a temporary
order requiring the parties to mediate. Even so, upon presenting the order
at the clerk of court's office, she was told she'd have to fill out a
referral for mediation. She, in effect, had to initiate new paperwork
for what the commissioner already had ordered. When she questioned the
duplication, "I was told, 'This is the way we do it here,'" Veith recalls.
"But it was just generating more work for attorneys and increasing fees
in family law cases, where clients don't have a lot of money to begin
with."
On the other hand, lawyers must understand that local rules do at times
have a solid rationale behind them, perhaps not immediately obvious, say
court officials. For instance, Ozaukee County court commissioner Darcy
McManus created a rule that requires an attorney to give her a copy of
the signed agreement in a stipulated divorce before she schedules the
matter on her calendar. Before she instituted the rule, attorneys often
appeared at these hearings without their clients having reached an agreement.
Thus, McManus's efforts to have a court reporter present at the hearings,
as required in stipulated divorces, were for naught. That's critical,
she says, because a court reporter is available to her only a few hours
a week. "I don't want to waste valuable court reporter time," she explains.
"So there are reasons to have variations in local rules in certain circumstances."
The state statutes also work against achieving total standardization
of local rules, notes recently retired Bayfield County circuit court judge
Tom Gallagher. A good example, he says, is small claims cases, for which
the statutes provide local courts with a range of procedural options.
"You're never going to be able to standardize local rules 100 percent,"
Gallagher contends, "but I understand the lawyers' problems. They don't
want to be blindsided by not dotting the i's, or crossing the t's, or
following some time rule. Many things could be standardized."
Traps
in Making Claims Against Governments 
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