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Gregg's Blog

OLR Review

by Gregg Herman on 10/01/14

According to an article in the Wisconsin Law Journal, there may be a larger review of OLR than originally contemplated.  A report commissioned by OLR recommended several things "OLR could do to improve, including exercising more discretion when complaints are filed and reorganizing the office to avoid duplicating efforts."

A larger review would be fine, but the last one, done in 1999, if anything made things worse.  The above comment does not deal directly with the main problems with Wisconsin's disciplinary system.  They are:

  • The amount of time from grievance to resolution.  While some of this may be due to OLR, most is due to the intricate investigation process, some of which was made more complicated as a result of the 1999 study.  But, much of the delay is also due to the Supreme Court which can sit on motions for months and months, fail to appoint a referee for extended periods of times and make a final decision for a lengthy time.
  • Inconsistent discipline.  Some minor offenses are (rarely) treated serious and (far more often) serious offenses are given lenient treatment.  There are no guidelines for discipline.  And, worse, the SC frequently fails to follow its own rule for progressive discipline, meaning that subsequent offenses receive more severe discipline than earlier offenses.
  • Leniency.  It is unbelievable that lawyers can lie, steal and behave despicably but keep their license to practice.

Yes, a review would be welcome.  But not one which fails to understand and address the real problems with Wisconsin's so-called disciplinary system.

New Jersey alimony law

by Gregg Herman on 09/12/14

My friend, Attorney Jennifer Brandt, posted on FaceBook a link to an article about a New Jersey bill which apparently Governor Christie intends to sign which will modify the law regarding alimony, including:

  • Allowing a “rebuttable presumption” that alimony payments will end once the ex-spouse paying them reaches the “full retirement age” of 67.
  •  Limiting the length of alimony payments to the length of the marriage for marriages under 20 years, unless a judge decides there are “exceptional circumstances.”
  •  Allowing judges to lower payments if the payer has been out of work for 90 days.
  •   Replacing he term “permanent alimony” with “open durational alimony."

Most of these changes would not be anything new in Wisconsin.  For example, most courts will reduce payments if the payer is out of work and it won't take 90 days (unless, of course, the lack of work is intentional) for the court to do so.

Perhaps the most important change would be the rebuttable presumption about retirement, although, again, there aren't a lot of 68+ year olds still paying maintenance.

While some guidelines regarding maintenance in Wisconsin might be helpful, the article points out the problem - both sides are unhappy with the compromises which were made to get the bill passed.

The problem is that real life situations differ so greatly from one case to another that any maintenance law needs to give the courts the power to override presumptions in certain circumstances.  Absent that power, certain fact situations will not find appropriate justice.  Put another way, if you create a lot of round holes, eventually there will be a square peg.

DV victims

by Gregg Herman on 09/10/14

The Ray Rice case highlights an issue which always has baffled me:  The role of the victim in domestic violence cases.  An article in today's New York Times,"Seeing Abuse, and a Pattern Too Familiar", does a nice job in discussing the issue.

To be sure, the role of defending the abuser which Janay Rice has assumed is not uniform.  In a number of DV cases I've handled, both as a prosecutor and as a divorce attorney, the victim has reacted as expected:  Cooperating with the prosecution and angry at the perpetrator.

Yet, it is not uncommon for the perp's best advocate being the victim.  As a prosecutor who handled DV cases for over two years, I was amazed, not just at the fact of advocacy alone, but the degree.  The victim would be angry at the police for arresting "her man" and at me for prosecuting him.  Often, the violence was extreme and frequent.  Yet, the victim would come to court arm-in-arm with the defendant and defend him with a passion exceeding that of his lawyer.

Usually, I would just dismiss the case on the theory that if the victim did not want him prosecuted, why do so.  Once, however, the violence had been so severe and frequent, that I decided to try to prove the case by calling the victim as a hostile witness.  The police testified about the victim's res gestae statement (for any nonlawyers reading this, it means something said essentially in the heat of the moment, without opportunity to make it up and thus an exception to the hearsay rule), the defendant's admissions and pictures of the injuries.  The victim, on the witness stand, denied that "her man" had repeatedly punched her, telling the jury that she had fallen, which was impossible given the nature and severity of the injuries.  The jury acquitted the guy in about two minutes.  It was the last time I tried to prove a DV case without a cooperative victim.

Why do some victims so passionately defend the man who abused them?  The NYT articles suggest that one reason may be financial.  While that may be true in the Rice case (it will be interesting to see if she stays with him now that his salary as a running back has stopped) in the cases I handled as a prosecutor, this was not a factor.  Often, in fact, the victim out earned the perpetrator.

Rather, my belief was that the reaction was due to the incredibly low level of self-esteem of the victim.   Many told me that if they lost this man they would never get another.  They desperately wanted a man and were willing to pay the price of occasionally being treated as a punching bag.

In my divorce practice, we don't see very many severe DV cases.  While the popular mythology is that DV is as common in higher SES (Social Economic Status) families as with lower SES families, this is not true in my narrow experience.  Rather, the DV cases which I saw as a prosecutor was frequently a factor of financial pressures, exacerbated by alcohol.   While DV does occur in higher SES families, it is not nearly as frequent or as severe.  Plus, women with financial resources are far more likely to afford the counseling so necessary for a person who is willing to be physical abused as a condition of a relationship.

Mrs. Rice's reaction is unfortunate.  It would have been nice if she had been a role model for women in similar situations by saying that being there is zero tolerance for being struck by another person.  It doesn't matter if she spat at him or was arguing with him.  It doesn't matter if he is the best running back in the world.  Rather, as the saying goes, the freedom to swing one's arms stops at the start of another person's nose.  Period.

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