Thursday, December 31, 2009

Children's Court - Part Two

By John DiMotto

I spent my second day at Children's Court yesterday. I sat in Delinquency "Daily Intake" Court. Daily Intake Court is where juveniles charged in a delinquency petition make their initial appearance. They are "summoned" into court.

The way this works is as follows:

A juvenile is arrested for a crime. It is not a crime where he need to be detained. He is released to his parent/s or family and is advised that he will be notified in the future as to what will occur. The police reports are sent to a Juvenile Intake Worker who does an investigation and makes an initial decision as to how the case should proceed. No action, an informal disposition and/or referral to the DA for a decision on charging are usually the options. If it is referred for charging, the DA makes a decision. If a Petition alleging delinquency is issued, a court date is selected for the juvenile to make his/her first appearance in court. The summons and petition are usually served via personal service or by mail. If the juvenile does not appear, a capias (like an arrest warrant) can be issued. If the juvenile does appear, a lawyer is appointed and present in court for the "daily" - the equivalent of an Initial Appearance in a criminal case - will be the DA, juvenile, juvenile's attorney, parent/s, someone from Bureau (agency to whom the police referred the case). The "daily" is presided over by a court commissioner who determines if the Petition sets forth probable cause to believe that the juvenile committed the alleged offense and who goes over the juvenile's rights with him/her. A plea may or may not be taken. (The plea is either a denial or a stipulation to the jurisdiction of the court.) A decision on placement (where the juvenile will be during the pendency of the action) is made - like setting bail in a criminal case - and then a future court date either before the commissioner for a plea or before the judge. There are strict time limits that must be met unless the time limits are tolled for good cause.

What I found most interesting, is that there is the opportunity to "get through" to the juvenile at this proceeding on the seriousness of committing an offense and the opportunity to provide services to the juvenile and his/her family as early intervention. If some time is spent in a colloquy or dialogue with the juvenile, it may pay off if the case reaches the disposition phase.

The beginning of a juvenile delinquency case is a lot like the beginning of a criminal case in some ways and very different in other ways.

I look forward to the challenge of delinquency cases.

Wednesday, December 30, 2009

Children's Court

By John DiMotto

For the last several months, in preparation for my next assignment this summer -- at the Milwaukee County Children's Court Center-- I have worked on checklists and outlines to assist me in learning this new area of the law. Having an understanding of the law, of course, is critical to being able to administer it. However, seeing the law "in action" gives the law a whole new meaning.

Yesterday, I spent the morning at our Children's Court Center with one of our Court Commissioners - David Sweet - as he handled CHIPS Settlement Conferences. This is a proceeding handled by a court commissioner to see if the case can be resolved short of a contest. The DA, Adversary Counsel for the parent/s, GAL, Social Worker from the Bureau of Child Welfare and a therapist, if one is involved in the case all meet with the CC to go over the details of the case, and the life of the family. Since the goal in most cases is to reunite the family trying to agree on what is best by all involved helps achieve this goal. I found the dynamics fascinating. One of the cases looks on track to resolve without contest. One will, in all likelihood, be an all out war. I do not think that one will bode well for the child. It is difficult to achieve a positive outcome when a person "cannot see the forest for the trees." However, that is why contests are necessary. I can see how juvenile cases can be so frustrating for a court official.

Today, I will be back at the CCC to observe Commissioner Sweet handle the intake and detention hearings in Delinquency cases. I look forward to experiencing the law in the courtroom and to seeing the system's approach to these cases.

I decided to start my "mentoring" with the court commissioners as opposed to with the judges. The commissioners triage the cases for the judges. It is usually the starting point or entry point into the system for these cases and I wanted to see the system from the ground up. You don't build a house by starting with the roof, you start with the basement foundation. It seems to me that in Milwaukee County we have good "construction." I am certain I will enjoy this upcoming rotation.

Tuesday, December 29, 2009

Probate and Football

By John DiMotto

Now that I have gotten your attention with the title of today's blog, let me say the only connection between Probate and Football is that one team will lose and be written off by some of the team's fans as dead and buried.

Today, I want to talk about my passion for football.

I am a HUGE Wisconsin football fan. I went to the University of Wisconsin Law School, graduating in December, 1974. I never missed a home football game during my time in law school. After graduation, I have continued to attend most games. I would have to say that in the 35 years since I have graduated, I have only missed about 10 home games. There is nothing like sitting in the stands among 80,000 people on a crisp fall day watching Badger Ball play out in Camp Randall Stadium. I have even attend a few away games, including a Rose Bowl game - the 1999 win over UCLA; a Hall of Fame Bowl game - a UW win over Duke; an Alamo Bowl game - a UW win over Colorado.

Tonight, I will watch my Badgers play the University of Miami -"The U" - in the Champs Bowl. The Badgers are the underdog - Miami is favored by 3.5 points. Most experts are picking Miami to "bury" the Badgers with a loss. People seem to think that the Miami speed will dominate the Badger brawn. However, I think that the Badger "resolve" can contain the Miami speed if the Badgers focus.

Yes, it is only a game, and life will go on regardless of who wins or loses. But, this bowl game will make for good drama tonight for 3 plus hours and I look forward to it. In the end, I hope the Badgers come out on top and that it will be the Badgers who deliver the "eulogy" at the end of the game.

Monday, December 28, 2009

Probate in Wisconsin - Estate Taxes

By John DiMotto

There was an interesting article in the New York Times this morning about the federal estate tax. The general import of the article is that people of more modest means will be hurt by it come 2011. While I do not dispute that for some it will be a quandry, in the Milwaukee County Probate court where I serve, I rarely see the negative effects of the federal estate tax.

There are many ways to transfer property as nonprobate property. POD (payable on death) accounts, TOD (transfer on death) deeds, Affidavit of Transfer (in small estates), and, for the more wealthy, Trusts.

Trusts are very interesting instruments. They are a way to control the passage of one's estate to maximize "keeping it in the family" and reduce tax liability. And, they can be very complex.

I recently reviewed a series of interrelated trusts which, in length, made "War and Peace" seem like a short story. They clearly were set up to address the federal estate tax laws and its ramifications. I had to read them over several times in conjunction with the Petition in the case in order to grasp their import. Suffice it to say, this case will be challenging.

What I have learned, first and foremost, in my probate assignment, is that no one should take their life or their death for granted. Everyone should have an "instrument" to govern how their property passes upon death if you really want to look out for your heirs and loved ones.

Sunday, December 27, 2009

Jury Selection Revisited

By John DiMotto

When it comes to the jury trial, I believe that jury selection may be the most important, and overlooked, phase of the trial. A good voir dire can reveal "character" aspects that a lawyer may find helpful or a hindred to his/her cause.

People called to jury service want to do the right thing. However, they are told that they should use their common sense and long experiences in life in evaluating the evidence. Since every person is different you will have twelve individuals with twelve different life experiences and potentially twelve views of the evidence. A carefully crafted voir dire is essential.

I have a Twitter account. I follow a few sites that are devoted to Jury matters. A terrific one is Deliberations, by Anne Willis Reed. Another on that is excellent is Jury Talk. Another is The Jury Expert. Another is blawgreview. They find interesting articles and vignettes from jury cases. Reading these articles can be invaluable to a lawyer's voir dire preparation.

One caveat when it comes to jury selection: Know Your Judge!

There are judges who will totally control the content of the questioning in order to prevent a lawyer from tainting the panel. There are judges who will not allow the lawyers to do any questioning but, rather, they must submit questions to the judge who will ask them. There are judges who will give the lawyers great leeway and latitude in asking questions. I fit in the final category. I believe it is important to let lawyers communicate with the jury panel so they can effectively use cause strikes as well as peremptory challenges.

From my perspective, not only is voir dire one of the most important phases of the jury trial, it is the most interesting and fascinating. It also is the one phase where the judge can impress on the jury how awesome their responsibility is to the case, parties and community so that there will not be juror misconduct -- intentional or accidental - during the trial.

Finally, if you really care about your community and the integrity of the law -- look forward to being called to jury duty. It is not a burden but a privilege.

Saturday, December 26, 2009

Preparing for a Court Rotation

By John DiMotto

Unlike a single judge county, where the judge must be a "jack of all trades," in Milwaukee County we serve in specific divisions and specialize in an area. So, how does a judge prepare for a new assignment? For me, it is to work up outlines and checklists (O & C) in the months before I begin my new assignment followed by mentoring with judges in the new division before the rotation takes place.

In the months before the actual rotation, I devote some time every week going over the statutes that govern the area of law I am going into followed by reviewing the Judicial Benchbook for that area. For example, I am currently reviewing Chapters 48 and 938. The Juvenile Code is quite technical and the time constraints for getting things done can be a challenge. As I am doing this review, I write up outlines and checklist with respect to topics within the area.

So far I have O & C for TPR (Termination of Parental Rights) cases, CHIPS (Children in need of Protection and Services) cases, Juvenile Guardianship cases and Adoption cases and I am working on Delinquency cases O & C. I have multiple O & C in each of these areas to deal with specific issues in each area. For example, I have one for TPR timelines and a separate one for CHIPS timelines. The reason is that when an issue arises, I can go to an O & C which addresses that single issue without having to go through a 50 page O & C.

O & C is my way to learn and remember an area of the law. When I have them done, I will truly be ready for my new assignment. I also have them posted on CourtNet, which is connected to the Wisconsin Court System, for other judges. I think that it is important for judges to share their work product with each other. We can help make each other better judges and thus provide better justice to those people who appear before us.

Thursday, December 24, 2009

Merry Christmas

By John DiMotto

Here is wishing everyone who has checked out my blog a Merry Christmas/Happy Holidays and a Happy New Year. I hope my blog has been interesting and the posting of my experiences and those of the bench, generally, have been informative and helpful to an understanding of what judges do.

Wednesday, December 23, 2009

Court Trial v. Jury Trial

By John DiMotto

Did you ever wonder why some cases are tried to a jury and some to the court (judge alone)?

There is no one answer that is determinative. A lawyer needs to do a total evaluation of the facts, issues, law and the every important emotional aspect of the case.

If the case involves technical evidence, it might be more advisable to try the case to the court because of the special expertise a judge has given years of experience on the bench.

If the case involves a high profile crime that has gotten a lot of publicity, it might be more advisable to try the case to the court because a judge can focus on the evidence to the exclusion of the publicity and public opinion.

If the case involves multiple claims, ie contract disputes with counter claims and cross claims, the evidence could be so overwhelming that it would be nearly impossible to present the evidence in an understandable way to a jury and the lawyers might want the judge to decide the case.

If the case involves questionable law enforcement conduct, a lawyer might want to try the case to a jury because it involves their community standards.

However, in each of the above cases a lawyer might choose the opposite manner of trial.

For example, in a high publicity case, a lawyer might not want a judge who is up for re-election in a contested race to decide the case because of a concern about the cases impact on the race. (It has been my experience that judges do put aside that concern and make their decision on the facts in light of the law, but a litigant might not see it that way.

For example, in a highly technical case, a lawyer might want a jury believing that the evidence is so confusing that the party with the burden of proof will be unable to present the case in a way that the jury will accept it.

Just like there are two sides to every coin, there are different considerations in making the decision to have a jury trial or court trial.

In the final analysis, it is not exactly scientific, but a judgment call.

Tuesday, December 22, 2009

The Role of Motions in Limine in Trial Work

By John DiMotto

The tool used most often by lawyers to control the flow of evidence in a trial is the motion in limine. It ordinarily seeks to limit what can be introduced although it is sometimes brought to specifically get the court's imprimatur on the admissibility of evidence.

In every civil case, the court puts in place a scheduling order. It guides the progress of the case by setting various deadlines that must be met before a trial date will be given out. Those deadlines include the last date when: new parties can be added to the lawsuit, the pleadings may be amended, witnesses must be named, dispositive motions must be filed, discovery must be completed, mediation or ADR must be completed, the final pretrial will be held and, from my perspective, one of the most important deadlines - the date by which motions in limine must be filed. I usually set this deadline 45 - 60 days in advance of the trial and schedule a hearing on the motions on a date prior to the beginning of the trial. I do not believe that it is fair to make the lawyers wait until they are in the middle of a trial to give them a ruling on motions in limine because the ruling can totally change how they approach the case. Furthermore, the reason that I allow the motions in limine to be filed after the pretrial is because it is not until the very final trial preparation that trial strategy "comes together" and the lawyers know what evidence they want in and what evidence they want to keep out.

I also require that the motions in limine be briefed so I can fully understand their respective positions before the hearing and can question them at length regarding their positions during the hearing.

Resolution of motions in limine prior to trial gives the trial judge the ability to maintain control over the case and manage its presentation for the jury.

Monday, December 21, 2009

The Courts and the Holidays

By John DiMotto

As we get deeper into the month of December, and the holidays are in full swing, is there a relationship between the Courts and the Holidays? The answer is a resounding, Yes!

For about 50 weeks out of the year, the courts are very busy resolving disputes - the true work of the courts. However, for about 2 weeks, the courts get a chance to take stock of life and resolution can take a back seat to reflection.

The Holidays are a lot about family and friendship. The Holidays are about doing for others as opposed to getting or taking from others. For two weeks out of the year, people truly are nicer and more accommodating of the needs of others. It seems like for two weeks people take a time out from an attitude of "go, go, go" and instead pause and look outward not so much inward.

Of course, we are open for business during the month but the pace is different and people are kinder. Even attorneys who are at each others throats back off a bit.

Goodwill abounds more during these final two weeks of December than at any other time during the year. It is refreshing.

Saturday, December 19, 2009

Saturday and the Courts

By John DiMotto

For me, a Probate Judge, there is no court on Saturday. The only courts that are open are intake courts for criminal matters. So what does a judge, who has no court on Saturday, do? Whatever he or she wants to do!

Judges are no different than anyone else. We have private lives off the bench. We have family, friends and the everyday little things live everyone else. We are no more or less special than anyone else.

For me, between September and into early January, it is following college football. First and foremost, I am a HUGE University of Wisconsin football fan. I have attended almost every home game since 1972 when I started at UW law school. I have seen the good (Rose Bowl teams - even attended the 1999 Rose Bowl with my daughter), the bad (Don Morton era) and the ugly (students getting injured when they rushed the field after a tremendous victory over Michigan). There is nothing like spending a Saturday in Madison, enjoying a brat and beer on Regent Street before the game and then sitting in the stands with 80,000 other fans watching the festivities on the field (the game) and off the field (the band and the student section). It is invigorating both physically and mentally. Of course, when the Badgers are on the road I will watch them on TV.

I did say that "first and foremost" I am a UW fan. My second football team is the University of Maryland. Yes, I am a Terp fan in addition to being a Badger fan. My daughter attend UMD and for four years my wife and I would travel to College Park to visit Anne - and always did so on a football weekend. UMD has experienced some rough times on the field of late but I do not abandon my teams. UMD will rise again.

My dream game would be UW v. UMD. They are not on each other's schedules but there is always the chance they could meet in the Champs' Sports Bowl in Orlando one year.

So, now you have a bit of an insight into one judge's Saturdays.

Friday, December 18, 2009

Probate Court - Mental Commitments

By John DiMotto

While will contests may be among the most dramatic matters in Probate Court, the most gut wrenching may well be mental commitment cases.

Ordinarily, there are two hearings that are held by the court. The first hearing is the probable cause hearing. In Milwaukee County, these hearings are conducted by our Probate Court Commissioner, Patrice Baker, at the Behavioral Health Division on Watertown Plank Road in Wauwatosa. The burden is on the Corporation Counsel, Milwaukee County's "law firm" which is the agency that brings these cases, to establish that it is probable that the subject in interest is mentally ill, treatable and dangerous. There are usually two witnesses: one to the act of dangerousness and a psychologist or psychiatrist to the issue of mental illness and treatability. If probable cause is established, then the case is set for a final hearing before either myself or Judge Mel Flanagan who is the second probate judge in Milwaukee County. This hearing is either a court trial or a jury trial. At the final hearing, the burden of proof is on the Corporation Counsel to establish the three elements by clear, convincing and satisfactory evidence. Most of the final hearings are court trials. Jury trials are rare. In my three and one half years in Probate court, I have only done two jury trials. They can be very challenging. It is not unheard of that the subject of the action may take the stand and "sing" his or her testimony. Now you may wonder if the jury thinks this is humorous. I can assure you they do not. Jurors are extremely attentive and focused on making a decision based on the evidence in light of the law. They recognize that this is not a joke but a person's life being put before the jury.

In the courtroom, we see the best side of people and the worst side of people. In mental commitment cases, it is usually seeing people at a very troubling time in their lives and our focus is on doing justice for them.

Thursday, December 17, 2009

Judges as Jurors - For Real

By John DiMotto

Judges routinely act as jurors multiple times every day. When we decide a motion or conduct any hearing that requires us to evaluate credibility and make findings of fact, we are functioning as a one person jury. So what happens if a judge is called to jury duty? Is a judge automatically disqualified as a result of his/her profession? The answer is a resounding "NO." Judges, just like everyone else can be called to jury duty and serve on a jury.

In Wisconsin, just about everyone is qualified to serve on a jury. (Exceptions: Those under 18 yrs of age, those who are not US citizens, those who are not able to understand English, a person convicted of a felony who has not had his/her civil rights restored.) I have been summoned four times in my life and one time, in 1994, I was selected to serve on a jury. My wife, Judge Jean DiMotto, has also been summoned and has served on a jury. As a prosecutor in the 1980's, Court of Appeals Judge Patricia Curley served on a jury for one of my cases.

Now you might ask, why would lawyers or parties to a lawsuit want a judge to serve on the jury? (Some people are of the opinion that if a party wanted a judge to decide the case they would not ask for a jury.) I believe the reason a judge is left on a jury panel is because the judge understands the process and can put aside sympathy, prejudice and passion more easily than others and arrive at a decision based on the facts and law without extraneous distractions (ie the media, community sentiment about the case, etc.) We are in the business of making decisions - fairly and impartially - and can assist the jury to do the same. Judges on the jury can help focus the jury on what is important and make sure that the law is applied to those facts found by the jury. In the jury room, the judge should not be a super juror and should not take over the deliberations. In the case I served on, I was not the foreperson, I insisted that we vote by secret ballot and I spent most of my time listening to the jury discussions. I was careful not to take over the discussion but only added to the discussion in response to specific questions put to me.

Perhaps the most important lesson I learned is how great the jury system truly is. Jurors approach their task with sincerity and poise and grace with a full understanding of the awesome responsibility entrusted to them. They take nothing for granted and want to do the right thing within the instructions of law for the case. Being on a jury inspired me and helped make me a better judge.

Should judges be allowed to serve on juries. Absolutely.

Wednesday, December 16, 2009

Probate Will Contests

By John DiMotto

People often ask me how I like probate cases and I tell them I really enjoy doing probate work. Almost invariably, they ask how such an active person like myself can enjoy such staid work. I tell them nothing is further from the truth. Probate cases are far from staid. They are quite challenging. Probate contests involve emotion, drama, and legal nuances that cause judges to call upon things we learned in Trusts and Estates in law school.

Take the "Will contest." They are not all like the Anna Nicole Smith case that made it all the way to the US Supreme Court, but they can come close. A will contest can pit one sibling against another sibling. The contest can create or extend a rift between them that can never be bridged. I oftentimes think, and sometimes ask the parties, if the deceased were in the courtroom with us what do they think he/she would feel about the contest.

A will contest usually involves a claim that the decendent lacked the testamentary capacity to have executed the will being offered to probate or that undue influence was used to get the decedent to execute the will being offered to probate. The party challenging the will has the burden to establish his/her claim. A full evidentiary hearing is needed and the rules of evidence apply. This is where it gets "legally fascinating." Many times one of the parties to the will contest wants to testify as to what the decedent said or did with the party which implicates the "Dead Man's Statute." In essence, this doctrine does not allow a person to testify as to what a dead person told them or about a transaction the person had with the dead person when it will benefit the living person, because it cannot be refuted. It is a doctrine that is not favored in the law, but in Wisconsin it still is the law. Most of the case law that discusses the Dead Man's Statute is very old but it is instructive. Reading these old cases and the factual scenarios can be like reading a good novel.

Finally, when you inject the emotional aspect of the participants on top of the legal nuances of the case, it creates high courtroom drama. A will contest is the Probate court version of a Family court property division contest in a divorce case.

Tuesday, December 15, 2009

Calendaring in the Courts

By John DiMotto

One of the most difficult tasks for any judge is figuring out how to calendar efficiently. This entails utilizing one's "internal clock" to estimate how long each case is going to take and to use our internal "crystal ball" to figure out what cases will go to trial.

People might think that when a lawyer asks that his/her case be set for a jury trial that it is a "done deal" that the case will in fact be tried before a jury. Nothing could be farther from the truth. Some statistics reveal that upwards of 95% of all cases settle. Figuring out that elusive 5% is the challenge.

A typical Monday in Civil/Probate court involves having one jury set in the afternoon. We do not "stack cases" (set more than one on any given day) so that if the case does go forward it will not be pre-empted by another case. However, if the case goes forward then all of the other cases set that week will take a back seat to the jury - although each one must be addressed in some fashion. I normally set aside a half hour in the morning and a half hour in the afternoon to deal with those other cases. Many of them are scheduling conferences or pretrials that do not take a long time,. However, I do have contested guardianship matters that have time constraints and have to be dealt with. Depending on the issue, it may extend the half hour. In essence, when I am setting these other cases, I first look to the Monday jury to figure out how "firm" that case is and schedule a little lighter the rest of the week if it is a jury likely to go. If that "firm" jury does end up settling, this does not mean that I have an easy week. It just means that I have a little more time to spend on each case and time to work up cases for the next week. (I try to be prepared at least one and sometimes two weeks into the future.)

Another name for a judge could be "juggler" since we have to keep a lot of cases going at the same time. Having a lack of work is never a problem. For every case that resolves, there are many more in line to be addressed.

Monday, December 14, 2009

Circuit Courts in Milwaukee County

By John DiMotto

Milwaukee County is the largest county, population wise, in the State. Not surprisingly, it has the largest caseload in the State. In Wisconsin, there are 72 counties with a total of about 250 judges. Milwaukee County has 48 of those judges, roughly 20 % of the total number of judges, and it handles about 30% of the case filings statewide. As a result of the workload, our judges are assigned by Division. This means that no judge handles every type of case. There are 4 Divisions: Criminal, Civil, Family and Juvenile, and each Division has subdivisions.

Criminal Division has a misdemeanor subdivision which has Domestic Violence courts, Gun court and general misdemeanor courts. It also has a felony subdivision which has Drug courts, Homicide/Sexual Assault courts and general felony courts.

Family Division handles all contested paternity actions as well as divorce cases.

Civil Division has a Small Claims court, general civil courts and a Probate subdivision with two courts.

Juvenile Division has a TPR (termination of parental rights) court and general juvenile courts.

Each judge serves either 3 or 4 years in a Division and then must rotate to another division. This type of specialization increases productivity.

In my 19 plus years on the bench, I have served in every Division except Juvenile - but that is coming in the summer of 2010 when I am due to rotate. I am looking forward to this new assignment. It will be a new challenge but one that will be rewarding.

The law is not "one size fits all" and the approach in Milwaukee County recognizes this reality.

Saturday, December 12, 2009

TV and The Courts

By John DiMotto

My friend, Court of Appeals Judge Dan Anderson, did a facebook post about an article on about how the Massachusetts Supreme Court is reviewing a conviction in which a trial judge injected himself in a trial with the jury about how CSI is not reality. While it may not be reality, the issue revolves around the judge telling the jury this fact. The Chief Justice of the MA Supreme Court expressed sentiments that everyone knows this and a judge should not say so.

This issue highlights the "tightrope" that a trial judge must traverse during a jury trial. Judges must be careful about comments they make during a jury trial because jurors look to the judge "for counsel." When a judge speaks, the jurors listen and accept what the judge says as fact. The judge should be above the fray and be independent and not express any opinions about the case or the strength or weakness of the evidence. We do not wear robes just to lend dignity to the proceedings. As my wife, Judge Jean DiMotto, has said, when a judge puts on his/her robe it covers up our personality, our likes and dislikes, our passions and our idiosyncrasies and we make rulings based on the facts and the law - not what we would like to see.

If there is an issue regarding scientific testing, etc, the CSI issue may be one that should be addressed by the attorneys during voir dire.

Friday, December 11, 2009

Friday in the Courts

By John DiMotto

What does a judge do on Friday? Does he/she start a jury trial? Does he/she begin any case that will be protracted? Does he/she spend a lot of time on the bench or spend it in chambers catching up on reading briefs, signing orders, prepping future cases?

In the Civil/Probate Division, where I currently serve, we try to keep the court calendar light. We try to use Fridays as the day when we "wrap up" cases with "loose ends." There are many cases that need attention to just one issue and those can be done on a Friday. It is also very important that a judge be on top of his/her cases and we can do some of that on a Friday. Being a judge is somewhat like being a student. Students prepare for class. Judges prepare for court. Of course, using a Friday for these purposes is dependent upon whether a jury that we started earlier in the week is done. We always want to finish up a jury before the weekend so that jurors do not have to come back another week. By keeping Friday light, we will have a big block of court time available to do so.

In terms of juries, we never start a jury trial on a Friday because rarely can a jury be started and finished in one day and, as I mentioned above, we do not want to inconvenience jurors by making them come back the next week. We ask a lot from our citizens when we call them to jury service so we give great deference to their schedules and their lives.

In some respects, Friday is the busiest day of the week because we are looking backward to finish up what we started that week and we are looking forward to what we will face the next week.

On a lighter note, yesterday I received a call from Bruce Vielmetti from Milwaukee JS. He does the "Proof and Hearsay" blog for Milwaukee JS. He learned about my blog and wanted to talk about it. He wrote a blog about this blog.

Thursday, December 10, 2009

Foreclosure Actions and the Community

By John DiMotto

Every Monday morning, the Milwaukee County Civil Division Circuit Courts deal with foreclosure actions. It is not unusual for each court to handle 15 - 20 such cases every Monday. These are sad cases on three fronts. First, these cases represent the shattered dreams of people who sought the "American Dream" - to be a homeowner. Second, these cases have a direct affect on our economy since the mortgagees are usually banks who are suffering a financial loss. Third, when confirmation of the sheriff sale occurs, it usually involves the bank buying the property, since no one is bidding on the property other than the bank since there is not a lot of money that banks are willing to extend to the public to be able to buy these homes, and, as a result the property usually ends up sitting vacant and can become a blight on the community.

What is very unfortunate is that not many of the homeowners even come to court to try to save the property. It is as if they have given up. If the homeowner does show up most judges will encourage the homeowner and the lender time to try to work out a resolution that will be a "win-win-win" - that is, the homeowner gets to keep his/her home, the lender gets its money, the community doesn't have another empty home which can be a blight on the neighborhood.

We do have a Mediation Program which attempts to bring the lenders and the borrowers together to try to work something out, but we don't have a lot of data as to the success of these mediations at this time. Hopefully, this program can bring about positive results.

As you can see, the law and the courts are not all about murder and rape.

Wednesday, December 9, 2009

Language Barriers in the Courtroom

By John DiMotto

One of the most challenging issues facing a trial judge involves language. In more and more cases, we find litigants and witnesses who require the services of an interpreter in order to be heard. An example is the case of State v. Lor. The defendant was charged with sexually assaulting his wife. Most of the witnesses spoke Hmong and the trial was "interpreter intensive." The jury needed to assesses the credibility of all of the witnesses via the interpreter. The challenge is not to be swayed by the person doing the interpretation. The interpreter is not the witness. Also, when the jury is paying close attention to what the interpreter is saying, it is sometimes difficult for the jury to watch the witnesses and evaluate demeanor. To make matters even more complicated, during voir dire, the trial judge must discover whether any of the jurors are proficient in the language to be interpreted and then make sure that the juror will agree to accept the official interpretation whether the juror agrees or not. Some jurors may have an understanding of a foreign language, but may not be as proficient as the court approved interpreter. The juror must defer to the "official" interpretation.

I think that we all take language for granted. In the courtroom, where more than one language is spoken, it can never be taken for granted.

Tuesday, December 8, 2009

Drunk Driving Law Revisions

By John DiMotto

I read in the Milwaukee Journal Sentinel (on line version) that the Wisconsin Legislature will be taking up more "drunk driving" legislation. While I agree that revision is an absolute necessity, I believe it is missing a HUGE component that, if adopted, could really reduce the number of second offenses.

I believe that the Wisconsin Legislature should make a first offense "conditionally" criminal. By this, I mean that if you are found guilty after a plea or trial, the conviction does not immediately become a criminal conviction. Instead, if the offender will agree to a complete alcohol assessment and participation in whatever program is designed specifically for him/her by the Department of Corrections during a period of probation, the court will stay the imposition of a fine and incarceration and place the offender on probation. Upon successful completion of probation, the offense will be on ones record as a noncriminal offense - as it is currently. If the offender refuses to do the assessment and participate in the program on probation, or does not successfully complete the program on probation, then the offense will be on ones record as a criminal conviction and a sentence will be imposed that includes a fine and incarceration. The cost of the assessment and program must be born by the offender. It seems to me that the incentive of avoiding jail and not having a criminal conviction will encourage people to address their alcohol issue after the first offense and thereby reduce the likelihood of a second offense. This, in my opinion, is "getting tough" and getting positive results for the offender and the community as a whole.

If you want to reduce recidivism, you must address the alcohol issue immediately after the first offense by assessment and treatment on probation.

Monday, December 7, 2009

Jurors and the Internet

By John DiMotto

As I am about to begin another work week - and I DO enjoy my work - I checked my Twitter account to see if there were any new posts on the issue of jurors and the internet. "Jury Talk" provided a link to an article on possible misconduct during the public corruption trial of the Baltimore Mayor, Sheila Dixon. This is an example of why it is imperative that a judge spend extra time during voir dire to impress upon jurors that they cannot in any manner shape or form even go on facebook, My Space or Twitter or its equivalent while serving on a case. The risks are too high for the case and the jurors. In a recent jury, I did just that and it made a big impression on the jurors. Yes, it takes a couple of more minutes during voir dire but it will save hours of Motion after Verdict time and possibly a second trial. My advice to my colleagues - spend the time upfront so you don't spend hours and hours on the back end trying to deal with a mess.

Sunday, December 6, 2009

Experimenting with Hyperlinks

By John DiMotto

In an effort to make my blog a vehicle to take readers to other websites for more indepth information on a topic, I have been experimenting with hyperlinks.

My goal: figure out how to do it.

With the help of two friends, I think I have figured it out.

I am going to try to do a hyperlink to a NY Times article on climate control.

Let's see if I am successful.

Saturday, December 5, 2009

The End of a Work Week; The Beginning of a Weekend

By John DiMotto
My Friday went well. With my jury finished, I was able to catch up with signing orders, doing some legal reading and preparing for cases coming up in the next two weeks. You would be surprised how much work there is to be done in order to be ready for the "courtroom onslaught." I spent at least one hour reviewing orders for dismissal, default judgment, upcoming hearings, and disputes between lawyers as to the language in proposed orders. I also decided to get a jump on a Guardianship case set for jury this coming Monday by putting together the substantive jury instructions and special verdict form. Juries are a rarity in Guardianship cases so I decided to have everything ready to go when the attorneys show up on Monday afternoon. I got it all done after a couple of hours and sent all the attorneys an email with my work product attached for their review. My email prompted a telephone call to my clerk - the parties have resolved the case and there will be no need for a jury on Monday, just a summary hearing to finalize the agreement. You ask - does this upset me after all the work I did? Absolutely not. The outcome via resolution will ease tensions within the family of the person who was the subject of the case filing AND I have a better "handle" for any future Guardianship jury trials. It is a "win-win."
At the end of my work day, I met friends for a drink to cap off the very full week to begin a relaxing, non work weekend.
On tap today, the Marquette University - North Carolina State basketball game at the Bradley Center and then tonight I will sit down in front of my new HDTV and watch the Wisconsin - Hawaii football game.
Have a nice weekend everyone.

Friday, December 4, 2009

You Never Know What Each Day Will Bring

By John DiMotto.

When I wake up each morning, I have a fairly good idea as to what I will face in court that day. However, nothing is ever certain and you have to "go with the flow."

Yesterday, when I arrived at the Courthouse around 7:30 am, I expected to finish my jury trial, take care of one morning case, deal with two contempt hearings in the afternoon and conduct a final pretrial for a complex "construction" related case set for a court trial in about 10 days. Little did I know that this would be just the tip of the iceberg.

The jury went fine - the jurors were a terrific, insightful group who, during deliberations, sent out a number of pointed questions. Everyone could tell how close attention they paid and how seriously they took their role. After about five hours they arrived at a verdict.

It was everything else that made the day, shall we say "interesting."

The morning case was a name change. Simple you might think. Think again. The individual seeking the name change is in the middle of a felony prosecution. No direct notice given to the DA. Result, case adjourned.

The two contempt hearings were somewhat protracted. Without getting into details, there are interesting legal issues about the viability of contempt given the 5th Amendment right against incrimination. Result, case adjourned for some briefing and more testimony.

The complex "construction" case pretrial went ok. The trial, on the other hand, will be difficult. Most of the testimony will be from professional engineers and will be super technical. I will have to be "on top of my game" in order to understand the engineering jargon. I am looking forward to the case.

Finally, I am the Duty Judge this week. This means that I do all of the miscellaneous civil matters that don't fall into a particular category. I had to do a "De Novo" hearing (this is a review of another judicial officer's decision) with respect to a Temporary Restraining Order that a woman was seeking against her Probation officer and the officer's supervisor. Not something you see every day.

When the day ended at 5:00 pm, I was ready to go home to be with my wife and recharge my batteries. I did so and woke up this morning ready to face my scheduled calendar and whatever else comes my way.

I do love my job.

Thursday, December 3, 2009

Welcome to My Blog


By John DiMotto

Thanks for taking the time to visit Bench and Bar Experiences. I hope you will follow my postings on my life as a judge. I hope this will allow the general public to have insight into the daily activities of a judge.