Comparing Wisconsin’s Practices Nationally, Internationally

By Attorney Gregg Herman
April 30, 2013

One of the delights of attending a bar association meeting is seeing new places.

For example, the most recent meeting of the American Bar Association Family Law Section was in Anchorage, Alaska.

While perhaps not everyone’s cup of tea for an April visit (yes, there was still snow on the ground), the views of snow-capped mountains were gorgeous and there was plenty to do in and around Anchorage.

In addition, the continuing legal education is of the highest caliber; with many nationally know presenters speaking on cutting-edge topics.

But the chief delight is not the location or the CLE, but the people you meet. It was particularly fun this time, as during the long flight to Alaska I overheard the couple next to me speaking in very proper British accents. As it turned out, Louisa Ghevaert is a British solicitor, flying many miles to address the ABA FLS on surrogacy law in the United Kingdom.

It is amazing how fast time can go on a five-plus hour flight when you have a great conversation comparing the practice of law in both places. Since our Supreme Court currently has a surrogacy case ripe for decision, hearing how these issues are treated in different countries was fascinating.

Among our far-ranging discussion, I learned that although Louisa is not a barrister, she can make court appearances in the lower courts and as an assistant to a barrister in the higher courts. Alas, however, she cannot wear the traditional robe and wig.

British judges frequently ride circuits, traveling from court to court. While some have limited-term appointments, others are permanent. They are not elected, but selected in a non-political process, which includes a written and a verbal examination. Now there is part of the English system which we should have adopted.

Similarly (if not quite as exotic) were the discussions with lawyers from around the country on issues of common concerns. Topics of discussion ranged from the underlying causes of divorce, to marketing a practice, to the rules of evidence — and everything in-between.

So, how does the practice of family law in Wisconsin compare to other states? Quite well, it turns out. Everyone has the same problems with the so-called “Rambo” litigators and complaints about judges.

Maybe my experiences are not common, but I find the mean, aggressive and dishonest lawyers to be a rarity among family law attorneys. Sure, they exist — if they didn’t something would be wrong. But, they are well known, so one can be prepared for them — and sometimes even avoid them.

Similarly, the vast majority of judges take their job very seriously and try hard to do the right thing, be it in regard to scheduling, helping lawyers settle cases and making considered decisions where necessary.

It is also fun to discuss common problems. There seems to be a common hope among the attorneys that the U.S. Supreme Court will clarify the status of same-sex couples by striking down the Defense of Marriage Act. Of course, as divorce lawyers, we have a financial stake. As the saying goes, the leading cause of divorce is marriage, so we should want everyone to get married. But humor aside, with the crazy quilt of laws across the country, ranging from same-sex marriage to civil unions to nothing at all, the result is confusion. We’ll see if the pending case results in resolving this confusion — or creating more.

In Wisconsin, our Supreme Court is considering what has been termed a surrogacy case, In Re the Paternity of F.T.R. Actually, it is less about surrogacy than about the validity of a parenting agreement, but the decision may have far-reaching implications not just for our state, but across the country. Amazingly, despite the prevalence of assisted-reproductive technology, we have no statute or caselaw for people utilizing these processes.

From talking to Louisa, I realized that such decisions can have international implications. With the ease of accessing information, family law is no longer simply state- or nationally-based, but international as well.

Don’t just take my word for it. The next Family Law Section meeting will be held Oct. 16-19 in Deer Park, Utah. If that’s not to your liking, the spring 2014 meeting will be in Bermuda.

Beautiful locations, to be sure, but also an opportunity to expand your horizons beyond the state line. And, if you are fortunate to have the right seat mates on your flight, beyond national boundaries as well.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.