By John DiMotto
It has been awhile since I have had the time and opportunity to post a blog, but today I have both and would like to discuss what I believe are essential tools for every judge -- Checklists and Outlines.
It is the responsibility of every judge to make a good record of every judicial proceeding in order to obtain a just outcome. Statutory law and case law provide that the rights of all litigants be honored. There are many statutory and judicially mandated duties and obligations place on the trial judge to protect the rights of all parties in all court proceedings. I believe that it is impossible for any judge to keep all of the duties, responsibilities and obligations with respect to the various areas of the law in his or her memory. The use of checklists and outlines allows a judge to "cross the 't's' and dot the 'i's'" and fully meet and comply with his or her responsibilities to do justice.
In order to arrive at a decision with respect to a hearing -- a conclusion of law -- the trial judge must make findings of facts from the record. Failure to do so may result in a reversal of the decision and necessitate a new hearing. Justice delayed is justice denied. In order to properly find the facts necessary to arrive at a conclusion of law, the trial judge must ensure that all of his/her obligations with respect to the matter at hand are met. Checklists and outlines provide the trial judge with the tools to do so.
There are four divisions in the Circuit Court in Milwaukee County.
1) The Criminal Division, which has a Misdemeanor subdivision and a Felony subdivision.
2) The Family Division.
3) The Civil Division, which has a Small Claims subdivision and a Large Claims subdivision.
4) The Juvenile Division, which has a CHIPS and Delinquency subdivision and a TPR subdivision.
Each of these subdivisions has multiple proceedings in which the trial judge has specific obligations and conditions precedent to meet. Failure to comply with the specific obligations attending the particular proceeding will result in reversal.
In order to ensure that all of a judge's responsibilities are met, I have prepared Checklists and Outlines. The Checklists set forth the obligations of the trial judge with respect to properly conducting a hearing. The Outlines set forth the law and legal principles that govern the proceeding. An understanding of the law set forth in the outline is necessary in order to properly meet the obligations of the trial judge set forth in the checklist. Checklists and Outlines go hand in hand and I routinely share them with my judicial colleagues throughout the State.
Examples of materials in outlines would include:
1) The substantive as well as procedural law pertaining to TPR cases.
2) The substantive as well as procedural law pertaining to Divorce cases.
3) The substantive as well as procedural law pertaining to guilty pleas in a Criminal case.
4) The substantive as well as procedural law pertaining to Guardianship and Protective Placement Probate cases.
Examples of Checklists would include:
1) The Findings of Fact/Conclusion of Law/Judgment with respect to Guardianship and Protective Placement cases. This checklist sets forth in detail everything that a judge must find in order to make a decision.
2) The Voluntary Consent Colloquy that a trial judge must engage in with a parent who wants to give up his/her parental rights. This includes approximately 75 questions that a judge should ask a parent to ensure that his/her decision is being freely, voluntarily, intelligently and understandingly made. It also includes approximately 15 questions that a judge should ask the attorney for the parent to ensure that the attorney has done his/her job in providing effective representation for the parent.
3) The Guilty Plea Colloquy that a trial judge must engage in with a person who wants to plead guilty to a crime. It includes questions required by statute and appellate courts in order to ensure that the plea is being made freely, voluntarily, intelligently and understandingly.
4) The Findings of Fact/Conclusion of Law/Judgment with respect to a Divorce case. Following this Checklist will ensure that all of the proper questions are asked and necessary findings are made.
It is impossible for a judge to keep all of the requisite questions in his or her mind given the myriad proceedings that a judge presides over every single day. By using Outlines -- to understand the law -- and Checklists -- to ensure asking the right questions, the trial judge can better ensure a just result and finality to the proceedings.