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Public Defender Caseloads Too High
Those quoted in "Making the
Cut: State Public Defender's Office Lives Within a Reduced Budget"
in the April Wisconsin Lawyer were remarkably subdued on the
subject of staff attorney caseloads. To read the article, you'd think
the unprecedented caseload levels were just a minor annoyance. Quite the
contrary. The agency's attempt to balance its budget on the backs of its
staff attorneys - and, as a consequence, of its clients - has created a
crisis of serious proportions. To get the complete picture, your
readership should know:
- The article misstated the caseloads required of staff attorneys.
Although felony attorneys do carry an annual caseload of 184.5 by state
law, the caseload required by the agency is much higher - from 208 to
245 in the various local offices.
- The average staff attorney has a higher caseload than required by
law because the caseloads of those with total or partial caseload relief
(usually office administrators and supervisors) are distributed among
the rest of the staff without such relief. This method of distribution
creates more problems as the agency continues to add levels of
management to offices that don't need it.
- Staff attorneys are reminded repeatedly that failure to meet their
individual caseloads will lead to unsatisfactory evaluations and,
ultimately, discipline including dismissal. The stress of this, along
with all the other stress that comes with full-time indigent criminal
defense, has led to the lowest morale in years in SPD offices.
Because we realize the political pressures on the program, staff
attorneys have been able to quietly go about our increased business in
the hope that the current situation is only temporary. However, if
anyone thinks that the changes trumpeted in the article represent a
permanent solution, we know that cannot be the case. If nothing changes,
SPD staff attorneys will at some point confront a predictable scenario
where they have to choose between what is good for their careers or what
is good for their clients. And we all know - or should know - in whose
favor that ethical conflict must be resolved.
Bruce Ware is president of the Wisconsin State Public Defender
Association, Local 484, WFT/AFT/AFL-CIO, and staff attorney in the SPD's
Milwaukee juvenile office.
"Exploding the Myths of Civil Justice" Draws Response
It has been a long time since I've read anything matching the
pretentiousness of David
Saichek's May President's Perspective.
Contrary to what Mr. Saichek and his accomplice in class warfare,
Prof. Marc Galanter, posit what fuels the sense of outrage of critics of
the civil justice system is not "because it challenges the leeways and
immunities enjoyed by those in charge." His class warfare rhetoric
ignores the fact that the culture of victimization has spread through
all classes. Indeed, now lawyers are victims. What fuels the sense of
outrage is the steadfast unwillingness of the challengers, of whatever
class, (and their advocates) to accept any personal responsibility.
Loser pay the costs of an unmeritorious lawsuit? Unthinkable! Limit
liability to the extent of one's negligence? Outrageous! What fuels the
outrage is the holier-than-thou whining.
Mr. Saichek attacks corporate America asking: "Why does corporate
America spend (fraudulently) their shareholders' dollars on poisoning
the pool of jurors?" Yet he ignores the efforts of the plaintiffs bar to
create myths and product liability based upon junk science (Alar, breast
implants, stray voltage, to name a few).
Prof. Galanter has been feeding at the public trough so long that his
bias is at least understandable. Mr. Saichek's attacks on corporate
America are, however, particularly ironic. If the shareholders of a
corporation object to its use of funds, they have a multitude of
remedies, including the self-help remedy of selling their shares. They
aren't forced to associate with the company, either as an investor or
customer. If the company doesn't meet a market need, it fails to
exist.
Mr. Saichek seems to have forgotten that the State Bar's feature of
compulsory membership doesn't apply to the lesser organizations such as
corporations that produce wealth, rather than forcibly extract it like
the Bar.
Thomas E. Vandenberg
De Pere
David
Saichek's May President's Perspective was true to the mark. Thank
you for writing it.
Sadly, articles making some of the same points have appeared not
infrequently, even in the mainstream popular press, but always with no
apparent impact.
Why is it that the people who would be hurt the most by tort reform
and litigation reform seem to be its most fervent proponents? How can
people who value our liberties pursue an objective that would make all
but the very wealthy completely dependent upon the government to define
and defend their rights?
It has gotten so bad that even people who normally respect my opinion
on virtually everything stop listening when I talk about this one thing
about which I know the most.
It has always been the Bar's duty to defend and protect our fellow
citizen's rights. Now it seems we have the additional duty of persuading
them that it is important that we remain available and able to do
so.
Ralph J. Ehlinger
Milwaukee
David
Saichek's President's Perspective in the May Wisconsin
Lawyer was infuriating.
Mr. Saichek cites U.W. Law School professor Marc Galanter as writing,
"[p]ublic discussion of our civil justice system resounds with a litany
of quarter-truths." Agreed - coming from the Association of Trial
Lawyers of America (ATLA) and its junk science bedfellows who came up
with garbage like the "twinkie defense," the Alar scare and the silicone
myth.
Mr. Saichek whines, "[w]hy does corporate America spend
(fraudulently) their shareholders' dollars on poisoning the pool of
jurors?" How so? By advertising? By asserting their legal rights and
combating frivolous lawsuits to save the shareholders' investment? What
"corporate America" is he talking about? Harley-Davidson? Northwestern
Mutual Life? His own corporate clients? It might surprise Prof. Galanter
and Mr. Saichek to know that millions of Americans work for, and within,
what Mr. Saichek so derisively refers to as "corporate America."
What exactly does Mr. Saichek propose to stop the alleged "poisoning
of the jury pool"? No advertising? A ban on profits? No free speech for
those who work for a corporation? Government oversight of all corporate
decisions? Maybe Mr. Saichek wants that world: Spill some coffee on
yourself? It's not your fault! Sue McDonald's! Is it any wonder that
plaintiffs' lawyers and ATLA are held in such low regard? (Are Mr.
Saichek's comments tainted by his ATLA membership and/or his plaintiffs'
product liability practice?)
I do, however, agree with Mr. Saichek's comments that, "[r]ich and
powerful people want more money and more power" and "[t]hey resent
governmental regulations brought about by their own abuses and avarice"
for it so accurately describes the plaintiffs bar, ATLA and the State
Bar. Indeed, this is why ATLA whines so much about efforts to curtail
junk science and frivolous lawsuits. But I'm sure Mr. Saichek's
not-so-thinly disguised class warfare is aimed at "corporate
America."
Mr. Saichek's comments also expose his view that shareholders and
citizens, that is, the "pool of jurors," are too stupid to act
responsibly and freely. If the shareholders and citizens don't like the
corporation's actions, they can sell their shares and/or find against
the corporation in the jury room. But isn't that the typical mindset of
a leftist like Mr. Saichek, that is, "I know what's best for you better
than you do; therefore, I'll think for you, protect you, and so on, if
you just let me run things." Has the State Bar spun into the world of
"the looters" as described by Ayn Rand in Atlas Shrugged?
Mr. Saichek claims to represent the "under-protected citizen" against
"corporate abuse." (Read "proletariat" against "bourgeoisie.") The
malarkey Mr. Saichek spins as "lawyer as champion" (as long as he gets
paid) is the same self-deluded and self-righteous drivel that emanates
from the ABA. From the perspective of millions of Americans, the
citizens are "under-protected" against the abuses of the government and
the lawyers. This is why there is a reform movement afoot and the desire
by the people to curtail the governmental power. Where has Mr. Saichek
been? Even Bill Clinton claimed "the era of Big Government is over."
(Will Mr. Saichek and Prof. Galanter help this under-protected citizen
assert his Second Amendment rights?)
If anything, it is the State Bar that is engaged in abuses and
avarice. Why must I be forced to be a member of an organization that
flies so far left? How is it that the State Bar may extort my money to
use against my personal and political philosophies? (How would Mr.
Saichek and Prof. Galanter like to be forced to join the American
Corporate Counsel Association and be forced to pay dues?)
The leaders of the Bar certainly don't represent me or people of
similar philosophy. If, however, Prof. Galanter and Mr. Saichek will
represent me against the abuses of the State Bar, I would be happy to
seek their counsel.
Miles S. Mittelstadt
Appleton
So far as I know, ATLA is very much against "junk" science and
frivolous lawsuits. I surely am not in favor of banning corporate
advertising or profits. This technique of attributing erroneous beliefs
to people with whom one disagrees is a shop-worn and discredited method
of argument - very disappointing. Mr. Mittelstadt is, of course,
entitled to his resentment against the ABA, ATLA, State Bar, plaintiffs
bar, Prof. Galanter and me. I just wish he could articulate a reasoned
argument against empirical research designed to test the accuracy of the
very myths he has so obviously adopted.
David A. Saichek, past president
State Bar of Wisconsin
Sadly, Race Still Matters
The April
President's Perspective, "Prejudice and the Profession," illuminated
many of the issues that I (and other colleagues) have reflected upon,
and at times become exasperated over, because of the persistent and
impeding nature of racism to the growth and development of minorities
within the legal profession. I submit that if minority attorneys are
adversely affected in this manner, then the profession and the legal
system also are adversely affected. I truly appreciate membership in
this profession and the occasion to participate in the legal process by
serving others. I also recognize the odds and obstacles that have been
surmounted in achieving lawyer status in an association that commands
national esteem. It is because of this regard and identification that I
believe additional impetus must be afforded the State Bar's laudable
efforts to pursue corrective measures where race and gender bias
exist.
The minority population statistics Mr. Saichek cites reflect a result
founded on historical attitudes about African-Americans and other
minorities. Unfortunately, minority lawyers continue daily to experience
the residual effects of those attitudes which have filtered through the
various institutions and systems of American life. Moreover, the paucity
of minority attorneys emanates from an ongoing process that communicates
value judgments about the worth of individuals based on race. If one's
perceptions are that an individual is intellectually capable, or not,
then one is inclined to regard that person consistent with those
beliefs. We need not look any further than our corporate board rooms,
law firms or the court system to confirm this fact. While some aspects
of life in law have improved with time and effort, others have not to
any meaningful degree. The sad but ultimate message is that race still
matters.
Further, while minority attorneys previously have tended to represent
like clientele, there also is a presumption that they should be limited
to that realm. Having represented persons of varying racial backgrounds
over the years, I have observed that people first and foremost desire
competent counsel to advocate their causes, irrespective of racial
background or gender.
As a private practitioner, I am reminded of the compounded
difficulties in representing clients, particularly minority ones, where
opposing counsel or a judicial officer displayed apparent disregard for
my status as their counsel based upon race, gender or both. These
indignities included, without limitation, constantly questioning the
client's credibility, even on nonrelated matters, presumptuously
addressing the client or counsel by one's first name, making disdainful
statements about or otherwise attempting to demean the client's position
on cases and extending condescending or patronizing remarks. For
clients, this type of treatment is offensive and perplexing, and conveys
a message that undermines the client's decision on the choice of
counsel, as though to punish both the client and counsel.
Equally troubling, minority clients confronted with this type of
conduct often have felt very defensive, and have acted as though they
did not expect much beyond the disrespectful treatment accorded them.
This negative behavior reinforces historical stereotypes and
misperceptions about the capabilities of minority lawyers, and restricts
their professional, economic and personal growth. Under these
circumstances, the legal talents, abilities and aspirations of many
minority attorneys often are frustrated or lost. This inures to the
detriment of the legal and public community as a whole.
Since minority private practitioners often lack the undergirding
resources their majority counterparts may possess, whether in start-up
financial support for private practice ventures, or in resource access,
racial bias in the form of the above conduct restricts their ability to
successfully compete in the legal system. Their ability to interact and
network with colleagues on current legal issues of the day, and to have
exposure to the same law practice experiences their counterparts enjoy
(or endure) also is affected. Ameliorative advances have occurred in
recent years. Still, the institutionalization of historical attitudes,
predispositions and behaviors based on race remain difficult to
eradicate.
Given the fact that race seems to tear at the fabric of American
society today by creating so much consternation and uneasiness among
citizens, we cannot be surprised that it continues to manifest itself in
the legal profession and the justice system generally. Therefore, I
concur that we find it difficult to summon the resolve to conquer this
ingrained national nemesis. Whither that this were not so, and that we
would all begin to view one another for the person within and not
without.
Lela P. Davison
Milwaukee
Can Lawyers Blame the Public for How the Public Perceives Them?
Our State Bar president's March
1997 President's Perspective on why "as a profession we are maligned
and ridiculed," blames the public for not being smart enough to respect
lawyers. Deflecting self-criticism, Mr. Saichek is among many attorneys
who find logic in this syllogism: "Honorable and competent" attorneys
are respected. Attorneys are being "maligned and ridiculed." Therefore,
the public needs to be educated.
In his article, Mr. Saichek ridicules business managers who
"absolutely despise being held accountable;" "educated public
officials" who are ignorant of the role of the judicial branch; and,
implicitly, all other "uneducated" members of the public. With this
attitude, no wonder that attorneys are not "liked back."
A local judge recently commented that lawyers are at their best when
advocating for their clients, and at their worst when defending
themselves. Even the best trial strategists whine when confronted with
public criticism: "Why don't they like us?"
The current Bar is like a new step-parent eager to gain the respect
of its stepchild, the public. We want the respect given to our
predecessors without having to earn it. We believe that a suit and
briefcase should command a sort of awe, and that three extra years of
school place us on par with medical professionals. The proposal to
"educate the public" sounds very much like locking the stepchild in his
room to "think about things."
Good lawyers used to be symbols for ethics and wisdom, and unselfish
service. The worst a bad lawyer was known for was talking too much, or
not knowing what he was doing.
Today, ask about lawyers in a coffee shop: "They're in it for the
money." (In what other profession or career can a 25-year-old start at
$70,000 a year?) All lawyers are rich and selfish. Bad lawyers are
downright dangerous.
How can education change this most basic perception of self-interest?
How can committees and commissions convince the public that attorneys
are not just in it for the money and the unearned respect?
As for ethics, as in most growing associations, our Rules have become
merely minimum standards. To avoid malpractice, don't have sex with your
clients, and keep their money separate from yours. Try not to represent
both parties to a lawsuit at the same time. File copies with the Bar
when you solicit work from recent widows. Take one-third of the
injured's compensation, no matter how much effort it requires; just put
it in writing.
Most people hire an attorney when they're arrested, injured or in
some kind of fight with someone else. "Good" (expensive) lawyers can
reduce the sentence, get large settlements and beat the pants off any
opposition. "Good" lawyers do this for the money.
As a group, we simply cannot ignore the cumulative effect of the
individual lawyers who sued McDonald's for hot coffee, "successfully"
acquitted O.J. Simpson, deny any connection between smoking and cancer,
and blame the manufacturer when a child chokes on a marshmallow or
strangles himself on a cloth towel dispenser.
So, nonlawyers learn that individual attorneys' "good" work results
in criminals going free and lighters being child-proof. Parents need to
get releases signed before planning a birthday party. Swimming pools
include the cost of a fence. Everything costs more, because everything
has to be insured, because anyone can be sued. Are these
benefits to the public?
What, exactly, do lawyers want to be respected for? The work
done for individual clients seldom benefits society as a whole. And
whenever one client "wins" a lawsuit or "beats a rap," someone else
loses. It's the nature of the system, but it's exaggerated by
advertising that encourages aggressive pursuit of "your rights," and
sets up everyone else as the opposition.
So, nonlawyers also learn that they can use a lawyer if
their interests coincide: essentially, money. Lawyers have become, then,
tools for the public; but when the same tool is used against
lawyers, it is "maligned and ridiculed" - and neither trusted nor
respected.
I feel privileged to know a few true professionals who are exceptions
to the coffee-shop opinion of attorneys. If asked to "educate" the
public about lawyers in general, I would use these examples as the
standard by which the majority should be judged. And if the shoe fits,
we should not blame the public for the size of our feet (or heads).
Nancy J. Sixel
River Falls
If I agreed with Ms. Sixel that there are only a "few true
professionals" I'd not bother urging our lawyers to "educate" the public
about the role of the judicial branch of government.
The vast majority of lawyers care sincerely about their roles as
counselors and as advocates. If Ms. Sixel has not met them the loss is
hers.
David Saichek, past president
State Bar of Wisconsin
Kids Can't Wait for Permanent Homes
I noted with interest the News
Briefs report on Families First in the April Wisconsin
Lawyer and would like to share with you a local initiative that has
had some fairly dramatic success. In 1993 a group of professionals
involved with the Milwaukee Children's Court recognized that we were
losing the battle and the war. Milwaukee County had record numbers of
children in foster care with little or no hope of return to their home
or a permanent home, and our child welfare system was recognized as one
of the most overburdened in the country. Believing that foster care
should not be a permanent condition and that children are severely
harmed by a lack of bonding and nurturance in their early years, we
decided to take action.
We formed a committee we call Kids Can't Wait, which is dedicated to
the simple goal of reducing the time children are in nonpermanent
placements. The committee includes myself representing the judiciary;
representatives from the District Attorney, Public Defender, Guardian ad
Litem, and Department of Social Services offices; private service
providers and adoption workers.
We began with the following goals:
1)Analyze the case processing from out-of-home placement to permanent
placement and eliminate problems of duplication, poor communication and
inefficient processing. As we critically reviewed the operation of the
system as a whole, we found numerous areas that could be improved. Each
agency made operational changes to become more efficient and worked to
assist the others when appropriate.
2)Organize training at all levels from caseworkers to judges on the
need for permanence and quick resolution of cases. We conducted training
sessions with the Department of Social Services case workers, attorneys
and judges on the importance of making and implementing realistic
permanent plans for children and families.
3)Investigate national models of Permanency Planning and successful
programs in other jurisdictions. We consulted with Debra Ratterman Baker
of the ABA Children and Law Section for assistance in setting up similar
projects in other states.
We have accomplished much of what we set out to do and did so during
a period of crisis in the Milwaukee County's child welfare system. We
continue to meet monthly to address issues as they arise and to keep our
case processing on track. Some statistics that indicate the success of
our efforts follow:
- 1993 - 80 TPR cases were filed, 81 adoptions were completed;
- 1994 - 103 TPR cases were filed, 108 adoptions were completed;
- 1995 - 248 TPR cases were filed, 151 adoptions were completed;
- 1996 - 271 TPR cases were filed, 254 adoptions were completed.
In addition to the increase in Termination of Parental Rights (TPR)
cases and adoptions, the time children are in out-of-home placements has
been reduced by earlier reunification of families when possible. I
credit the commitment of our committee and the ability of each member to
gain the support and involvement of their agency to our overall success.
The Department of Social Services added adoption workers, which sped up
the finalization process; the District Attorney and Guardian ad Litem
offices added staff to work exclusively on TPR cases; and the judiciary
agreed to expedite all TPRs and adoption petitions, and to set realistic
permanent plans.
The crisis of children lingering in foster care is not isolated in
Milwaukee. Too often the remedies suggested or attempted do not address
the system as a whole and fail to gain the cooperation of key players in
the delivery system. The interagency cooperation, communication and
collaboration that we have developed and maintained has been critical to
our success and the success of any program. I encourage other counties
to try a similar program and would be glad to assist in any way I
can.
Judge Mel Flanagan
Milwaukee County Circuit Court
Everyone Needs to Proofread
I read with special interest Mary Barnard Ray's article entitled "Spell
checkers, proofreading and the lack of free lunches" (May 1997
Wisconsin Lawyer) as I am a lawyer with a journalism degree and
a proofreading background.
I had to chortle and blush slightly as I read the example wherein the
writer inadvertently dropped the "l" from "public." I agree
wholeheartedly with Ms. Ray's assertion that computer spell checking
programs entice us into speeding across text where we, or someone we
work with, should pore over it at least once. I routinely come across
blatant typographical errors in legal documents and correspondence, and
apart from causing me personally to adjust downward the credibility of
the signatory (yes, we do "adopt" errors in any writing to which we sign
our names), I worry about how such careless errors reflect upon the
profession.
Imagine my surprise, then, upon reading a letter sent to me as a
newly admitted Wisconsin attorney from none other than the State Bar of
Wisconsin. The subject was "equal access to justice" and I was informed
that "A lawyer should render pubic interest legal service." I got to
blush once again as I showed the letter to the secretaries in our
office. I couldn't help but think that, if I took this literally, I
would run afoul of several other rules.
The letter was a perfect illustration of the fact that no one is
immune from the need to proofread. Yes, I ran a spell checker on this
letter. Then I read it word for word three times.
Gregg A. Bilz
Phillips
Wisconsin Lawyer