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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.
Bar Members Have a Voice
Attorneys Christine Olsen,
Wausau, and Jim
Fullin, Madison, recently were appointed by the State Bar
to the Forms Subcommittee of the Records Management Committee.
They encourage State Bar members to contact them with any questions,
comments, and concerns about this order or specific forms. Olsen
can be reached at (715) 842-7510. Fullin can be reached at (608)
267-5176. |
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.
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