Saturday, January 30, 2010
Friday, January 29, 2010
Thursday, January 28, 2010
Wednesday, January 27, 2010
Tuesday, January 26, 2010
Monday, January 25, 2010
Sunday, January 24, 2010
Saturday, January 23, 2010
Thursday, January 21, 2010
Technical difficulties continue to plague this blog. I am working with Google Blogger to resolve them. If I am unsuccessful, I may have to start a new blog. If that happens, I will do a posting on my facebook and twitter accounts about it. In the meantime you can check back here to see if the problems get solved. If they do I will resume my substantive posts.
Wednesday, January 20, 2010
I have been experiencing a problem with posting recently. I am trying to have this problem resolved but it is very time consuming. I hope I will be back as soon with substantive posts. If I cannot get the problems resolved, I will have to start a totally new blog. I hope it does not come to that.
Friday, January 15, 2010
In my last post, I discussed the insight that the lawyers can gain from juror questions. This value from allowing juror questions cannot be overstated.
Good lawyers prepare very hard for a jury trial. The do not want to leave any stone unturned. Such attention to detail is of the utmost importance if the lawyer hopes to persuade the jury to his/her proposition. However, sometimes lawyers forget that the jury hasn't a clue as to what the case is all about when they walk into the courtroom. Sometimes the lawyers take for granted what is obvious to them alone and no one else and skip over important evidence. I call it the "missing the forest for the trees" syndrome.
In almost every case where I have allowed juror questions, at least one juror submits a question for a witness which causes one of the lawyers to scratch his/her head and, during the review in chambers, to say something like "wasn't this juror paying attention?" However, usually the juror's question is justified based on the failure of the lawyer to connect all the dots. Lawyers must never forget that just because they know the evidence and inferences that flow from the evidence does not mean the jurors will get it as well. Our legal training does set us apart from nonlawyers and trial lawyers must never forget this fact.
By allowing juror questions, lawyers get an insight as to what is, or is not on the jurors minds, and gives them the opportunity to see whether they are effective in their presentation of the case. If not, they can address their deficiencies while this case is ongoing.
I have had some lawyers say that this benefits the unprepared lawyer to the detriment of the prepared lawyer. However, it has been my experience that both sides benefit equally.
We ask a lot from our jurors. Is it too much to let them "ask?"
Thursday, January 14, 2010
In a previous post, I commented on the potential value of allow jurors to ask questions of the witnesses called at trial. However, its value is closely related to how the judge instructs the jury on its use.
Instruction to jury:
After the jury has been selected, and before the attorneys give their opening statements, I give preliminary instructions. These touch upon what the jurors can expect during the trial (the phases of the trial leading up to their deliberations) and what their responsibilities are (I call their responsibilities the "dos and don'ts" of jury service.).
In particular, I tell them that if a question has not been asked of a witness that a juror thinks he/she needs the answer to in order to arrive at a verdict, the juror may submit a question. I tell them that when the attorneys have finished questioning a witness, before the witness is excused I will ask the jurors whether any of them have any questions for the witness. I tell them this is not a verbal exercise and that the question/s must be submitted in writing and done so anonymously. I then collect the questions which are passed forward to the court and then I review the questions, on the record, with the attorneys in chambers. I tell the jurors that I apply the same rules of evidence to their questions as I do to the attorneys' questions and that if a question is appropriate I will ask it of the witness. If I deem it is not appropriate, the question will not be asked. I also tell the jury that if I can give an explanation to the anonymous juror - of course it is given to the entire panel - when a question is not asked I will do so. For example, I tell them that if a question is asking a witness to speculate, it will not be asked. I further tell them that sometimes the explanation is too complicated and that a question/s will not be asked and the juror who submitted the question must not speculate as to the reason the question is not being asked and should not speculate as to what the answer might have been. I also tell them that when I am done with their questions that the attorneys get an opportunity to ask follow up questions before the witness is excused. Additionally, I tell the jurors that I realize that they might not think of a question for a witness until they have heard other witnesses testify but that they cannot ask that a witness be called back to the stand. Finally, I stress that they should not consider themselves taking over for the attorneys but I do this to assist them in making a fair and just decision.
Potential value of juror questions:
Puts the jurors at ease.
Highlights how important their service is.
Highlights how they must follow the rules in order to ensure the integrity of what they are doing.
Highlights the investment that everyone is putting in to the case.
Highlights that there are rules for all participants in the case that must be followed.
Give the attorneys an insight as to what is on the minds of some of the jurors.
Lets the attorneys know whether they are getting their case across to the jurors, and if points are being missed the attorneys will have the opportunity to find a way to get them across.
While allowing juror questions may add time to the trial it is time well spent.
Wednesday, January 13, 2010
In my last post, I initiated a blog about the degree of juror involvement during the trial.
In days gone by - the 1970's and earlier - jurors were told to watch and listen and at the end of the case deliberate and reach a verdict. They were not allowed to take notes of the testimony, they were not even given the jury instructions in writing for use or reference during deliberations. Jurors were expected to rely upon their "superior" memories. Period. The idea was that there should be no extraneous distractions.
Starting in the 1980's, judges came to the conclusion that juror notetaking - allowing jurors to take notes during a trial - would enhance their ability to "get it right." Not everyone has the same powers of recollection or memory as others. In those cases where a judge decides that jurors may take notes, jurors are, that they do not have to take notes but may do so. There is a standard instruction on the process. I expand upon it in my own instructions.
I tell jurors that they can but do not have to take notes. I tell them not to let notetaking distract them from both watching and listening to the witnesses. This is because evidence comes in via words and demeanor. I tell them they should be careful, if they take a lot of notes, not to miss what a witness is saying while the jurors are hurriedly writing down something they have just heard and to keep in mind that how the witnesses says something has evidentiary significance. This is akin to the phrase "a picture says a thousand words." I also tell them, per the standard instruction, that they can use their notes to refresh their recollection during deliberations. Recently, I have decided to add to the instruction that jurors should not consider the extent to which I take notes during the trial to be a sign as to what is or is not important testimony. This is because I am aware that jurors look to the judge for guidance and I do not want them to think that if I am writing something down it must be important and if not that it is not important. I tell them that what I am writing is for a different purpose than their's. Mine is pertinent to the legal determinations whereas their's is pertinent to factual findings. Yes, I do get a bit wordy in my explanation, but it fully addresses the issue and helps the jurors work their way through the "tunnel" of the trial on the way to the "light at the end of the tunnel" - deliberations.
Juror notetaking is an important tool to assist jurors in doing their job - arriving at a fair and just verdict.
Monday, January 11, 2010
In previous posts, I have discussed the very real dilemma that juror access to the internet during a trial poses to the integrity of the jury's verdict. On the one hand, everyone can appreciate the fact the the jury wants to do the right thing. In our society, we encourage people to take the initiative to get information so that whatever they do they will do so well. On the other hand, what is appropriate for the jury's consideration is determined by the trial judge. If jurors do their own research, they may be relying on totally irrelevant information. Above and beyond this fact, it is information that the attorneys and court do not get the chance to address. The trial judge is the gatekeeper of the evidence. However, the trial judge can not "gatekeep" what it is not aware of. So, what is a judge to do?
First, the use of a thorough instruction as to why jurors obtaining information deprive the parties of a fair trial and that it is the responsibility of the attorneys and the court to make sure that only evidence that is appropriate will come before them.
Second, jurors should be allowed to take notes. It will help refresh their recollections during deliberations. More on this in a subsequent post.
Third, trial judges should consider allowing jurors to submit written questions to the judge for the witnesses. When I allow juror questions, my procedure is to ask the jurors if they have any questions after the attorneys have concluded their examinations. Any questions are submitted in writing and reviewed by myself and the attorneys in my chambers. Ultimately, I decide what juror questions will be asked. I then ask the questions of the witness. Further, if I do not ask certain questions, I always attempt to give an explanation for the benefit of the juror whose questions is not being asked. In a number of trials I have done this and it is very effective. In this scenario, I remain the gatekeeper of the evidence. This procedure "clears the air" for the jurors and promotes a fair trial. In those cases where I allow juror questions, during my preliminary instructions, I give an extremely thorough instructions as to how this procedure works, why I do it and what I expect from the jurors. I have found this to be very effective in ensuring that the jury does their job right.
Some attorneys object to jurors being allowed to submit questions. They fear that the jury will take the role of advocate for one side or the other. In my experience, this fear is without merit. Jurors do not want to take over for the attorneys. They want to make the right decision and not make a mistake.
In those cases where I have allowed jurors to submit questions, the attorneys have always learned something about their case. It keeps the jurors involved in doing the right thing and causes the attorneys to be very thorough. I do give the jurors a very thorough instruction as to how the procedure will work so all the parameters are understood by the attorneys and the jurors.
In the final analysis, juror questions can reduce the temptation of jurors to seek extraneous information via the internet. More on this topic in a subsequent post.
Sunday, January 10, 2010
In previous posts, I have discussed the issue involving jurors jeopardizing the integrity of their verdict by surfing the internet for extraneous information to assist them in arriving at a verdict.
It has been my experience that jurors want to make the right decision. If they do not believe that the lawyers have done a good enough job providing them with information (evidence), they may be tempted to seek out more information. Therefore it is imperative that the judge fully instruct them on the parameters of their service - what they can do and what they cannot do - during preliminary instructions at the start of the case.However, I believe that this issue can be addressed even before the jurors are brought to a courtroom for voir dire. It can, and should be addressed during jury orientation.
In Milwaukee County, every Monday and Wednesday, citizens are summoned to the courthouse to begin jury service. There is a program for them before they are sent to individual courts. It consists of a judge who welcomes them and gives them an overview of what they will experience; a welcome by the Clerk of Circuit Court; a video on jury service from the Office of State Courts.
It is at this orientation that the judge can impress upon them the requirement that they must rely on only the evidence received in the courtroom to make their factual determinations. I am one of the judges who has signed up for this orientation. I love the opportunity to give them my "insiders" view -- the "real" scoop as I tell them -- about their service and I emphasize that in performing their service they cannot play "Sherlock Holmes." I tell them in no uncertain terms that everything they need to do their job will be provided to them by the lawyers (the evidence) and the court (the law). I further tell them that if they do anything on their own that their verdict will be tainted and the time spent on the case will have been at great expense to the parties and the community -- and for naught.
I am absolutely convinced that the few minutes I devote to this matter is well received and accepted by the jurors and helps them understand their role and helps them "see the light at the end of the tunnel" and thus makes it comfortable for them to traverse through the tunnel as they work towards a fair and just verdict.
Friday, January 8, 2010
Judges are very public figures. They are called upon to resolve disputes - both big and small. If the matter is very high profile, the judge is oftentimes in the "eye of the storm." When a judge renders a controversial ruling, it usually engenders much public discussion. Therefore, it is critical for a judge to very carefully and thoroughly set forth on the record the factual and legal basis for a decision. Why, you ask, is this critical? Because the judge cannot discuss it off the record.
Every state has a Judicial Code of Ethics. In Wisconsin, our code is set forth in SCR (Supreme Court Rule) Chapter 60. This code sets forth in detail what a judge can and cannot do both on and off the bench. One of the tenets of our code is that judges cannot discuss decisions outside of the court case. So, when a judge renders a decision that is controversial and public debate flairs up against the judge, he/she cannot speak out to further explain or defend the decision.
This means that if the judge is being roundly criticized in editorials, talk radio, cable news, local television station "investigative" reports, etc., he/she can only refer critics to the court record. The judge cannot call a press conference to answer specific questions or address specific criticisms. The judge cannot sit down for an interview with his/her critics. and, this can be very frustrating.
Human nature is such that no one likes to be attacked, and, when attacked, people ordinarily want to defend themselves. A judge's only defense for a decision is to provide a transcript of the decision to the public. However, in this 21st century electronic era, the media wants more. They want something more personal to present to their viewers. Ordinarily, they do not want to read a judges comments from a transcript. It takes too long and is too dry. As a result what occurs is criticism that goes unanswered from the judge because the answer is not in a form that meets the needs of the media outlet.
The next time you are watching or listening to a report of a judicial decision and you hear the reporter say: "when contacted for a response, the judge refused to comment" please keep in mind that the judge cannot speak outside the case. Judges are limited to doing their talking in the courtroom to ensure the independence of the judiciary.
Thursday, January 7, 2010
When people think about judges, they usually picture a man/woman in a black robe sitting on the bench. However, sitting on the bench is just one aspect of the position. Another very important aspect of being a judge entails a judges involvement in legal education.
In Wisconsin, every lawyer is required to participate in continuing legal education - CLE. During every two year cycle, lawyers must obtain 30 CLE credits in order to maintain their license. The law is vibrant and changing and lawyers must keep up with those changes. These credits are obtained at seminars and conferences. The educators are law professors, members of the bar, experts in certain legal fields (medical malpractice, legal malpractice, products liability, etc) and judges.
It has been my experience, first as a lawyer attending CLE presentations and now as a judge, that lawyers have a great interest in attending a CLE seminar or conference where a judge is a member of the faculty. Lawyers want to hear from judges on various legal topics to get an insight into how the judges think and approach legal issues. It is a way to both learn the law and learn the judge.
I have been very involved in the education of judges - who must also obtain judicial credits - as well as lawyers. I love how the law is ever changing; I try to stay at the forefront of those changes; I eagerly participate in seminars and conferences as a faculty member to be of service to the betterment of the bar.
I usually involve myself in CLE presentations in light of my current assignment. Right now, I get involved in seminars that deal with guardianship matters and estate matters. For the past three years, the Milwaukee County Probate Court in conjunction with the Milwaukee Bar Association has annually put on a half day Guardianship seminar as well as a half day Estate seminar. The faculty has been comprised of the two probate judges, our probate court commissioner, our probate deputy registers in probate as well as attorneys with expertise in these area. We usually present on the "hot topics" of the day although we do review and update procedures in these areas. I have moderated these seminars and conducted them in a very interactive manner. I believe that learning is most effective when there is an exchange of ideas between the presenters and the audience. I always get the audience engaged - make them part of the presentation to bridge the gap between student and teacher. We learn best from each other. Education is a two way street. By participating in legal education, judges perform a tremendous service to the bar and the public that judges serve. By participating in legal education, judges take the pulse of the bar and the law.
Wednesday, January 6, 2010
In addition to handling contested Estate and Guardianship cases, a Probate Judge is also responsible for contested Involuntary Mental Commitment cases.
In Milwaukee County, in the initial stages of these cases, our Probate Court Commissioner, Patrice Baker, is responsible for addressing all issues. If they do not go into contest mode, she has the authority to resolve the Estate and Guardianship cases. When it comes to Involuntary Mental Commitment cases, she has the authority to do the probable cause hearings - a hearing to determine if there is sufficient evidence to justify a trial - but the final hearings, whether contested or uncontested are handled by a Circuit Court Judge.
At the present time, because of the location of the Mental Health Complex - 10 miles from our downtown Courthouse in Milwaukee - the final hearings are conducted on friday mornings at the MHC by a reserve judge. This is done so that the two probate judges, whose case load is actually 25% probate and 75% civil, will not develop a backlog which would result from the loss of a half day of court time for the civil cases. Due to the economic downturn and the lack of funds for reserve judges, this will change next March when the probate judges will travel to MHC on friday mornings to do the final hearings. The two probate judges will receive some civil calendar relief in order to prevent huge backlogs from arising.
In terms of a judge's involvement in Involuntary Mental Commitment cases, we do final hearings and de novo hearings. A de novo hearing will occur if a party takes issue with the decision of the probate court commissioner at a probable cause hearing. When this challenge arises the case is transferred to the courthouse downtown so it can be addressed by the probate judge. If the challenge involves the facts, the judge does not review the propriety of the commissioner's decision, it is a new hearing. If the challenge involves the law, the judge makes an independent legal determination. No deference is given to the commissioner's findings and decision.
The final hearing is usually a court trial although we do preside over a few jury trials each year. These hearings differ from probable cause hearings in terms of the burden of proof. At the final hearing the Petitioner must prove its case by clear and convincing evidence - the middle burden.
Involuntary Mental Commitment cases are among the most sensitive cases we handle. The legal protections afforded the subject individuals are expansive - as they should be - given the "intrusion" that occurs in the lives of the subject individual. The law also looks to the future with multiple reviews if an involuntary commitment is ordered. This is to prevent people from being hospitalized forever.
The goal in an involuntary commitment case is to treat and release as soon as appropriate taking into account the individual and society.
Tuesday, January 5, 2010
Most people are of the belief that in America, if you are in a civil dispute with someone that you cannot resolve that you can pay a modest jury fee and will have your case decided by your peers - a jury. "It ain't necessarily so," much to the chagrin of many pro se litigants.
This scenario plays out quite frequently in small claims cases.
In Milwaukee County, small claims actions (cases where the amount in controversy is $5,000 or less) are heard by judicial court commissioners. The commissioner hears from both sides and renders a decision. If either side does not like the decision, he/she can request a trial denovo from a judge or he/she can pay a jury fee and have the case transferred to a judge for a jury trial. If there is a dispute of fact, a jury trial will go forward. However, oftentimes the decision of the judicial court commissioner is based on a matter of law, not fact, and in these cases the requested, paid for jury, may not come to pass. One party files a motion for summary judgment to short circuit the need for a jury trial.
A party is entitled to summary judgment if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.
We see summary judgment motions with great frequency in cases involving insurance coverage. If a policy does not provide coverage for a fact scenario, an insurance company can "get out of a case" via summary judgment. Whether coverage is or is not available is usually a question of law not fact and is determined by the court not a jury.
The bottom line is this: If there is a dispute of fact you can have a jury trial. If there is a question of law, the decision is made by the court. A jury decides facts, a judge decides the law.
Monday, January 4, 2010
One of the most difficult decisions a judge makes is when he/she orders a guardianship and a protective placement.
While a guardianship and a protective placement is often necessary due to dementia, stroke, serious and persistent mental illness or other like incapacities, it still involves handing over the "life reins" of an individual to another person.
In many cases the person who is the subject of the hearing is completely incapacitated and cannot do anything for himself/herself. However, there are those individuals who are just "over the border" of incompetence but who still want to control their own lives and destiny. These are the tough cases.
The ultimate decision that must be made in the "close cases" is whether it is the incompetence that has caused the problem or whether it is a person who has decided - and the key word is "decided" - to make a choice that perhaps you or I would never make. People have the freedom to make poor choices. However, it must be a "choice." In every city, you see homeless people. If it is a lifestyle that is "chosen" by a person who is not incompetent, society cannot not intervene as a super parent and reverse that decision.
When a guardianship and protective placement is ordered, the case does not disappear from the radar of the court. It must be reviewed every year to make sure that the placement is the least restrictive given the circumstances of the person. Original placement in a nursing home may no longer be appropriate and transfer to a group home or independent apartment may be in order. This is what is known as a Watts Hearing. Every person under a guardianship and protective placement is entitled to an annual review. This ensures that no one "falls through the cracks." This ensures that the restrictions on liberty are only to the degree necessitated by an individual's incapacity.
Watts Hearings do create a lot of work for the court system, but it is necessary work in a society that promises liberty and justice for all.
Sunday, January 3, 2010
In a previous blog, I discussed the problems that can arise during a jury trial when jurors go on the internet for information. This topic is getting quite a bit of attention because of how it can derail a trial and create a nightmare for a retrial.
Today, I attach an article from The Jury Expert that discusses the issue at length. It is one of the best articles I have seen on the issue. It is a must read for all judges.