Silver Linings in a Dark Cloud

By Attorney Gregg Herman
May 18, 2020

Silver Lining CloudsMy mother used to say that it takes a very ill wind to blow no good. The COVID crisis is as ill a wind as I’ve ever seen. Does it blow any good for our legal system? Or to utilize a different metaphor, are there any silver linings in a very dark cloud?

While they certainly don’t outweigh the tremendous harm this awful virus is causing to our legal system (to say nothing of society as a whole), there are a few good things which might come out of this. And given all the bad things, the legal system should take advantage of any good thing, no matter how small.

Zoom Court Appearances

One positive development is the increased use of telephone or Zoom court appearances. While some counties have always allowed certain pretrials via telephone, others have not. The cost of personal appearances is rather significant and much of it is wasteful when all that happens is a brief conversation with the court and a date to come back. Previously, in many counties, both lawyers had to drive to court, wait for the judge, engage in a personal meeting, then drive back to their office. Both parties had to arrange for time off from work and/or child care. In addition, while the cost of gas and parking may not be significant, it is wasteful. With the shutdown, courts are utilizing electronic means of appearances. While this can present some problems of its own (the first one I did, my receptionist decided to adjust the blinds in my office to reduce glare. Noticing a knot at the top, she climbed onto the window sill just as the Zoom conference went live. It looked to everyone like she was about to jump from the 19th floor), these issues are less than the issues of live appearances which include potential delays due to weather and traffic. No Zoom conference ever has to be rescheduled due to a snowstorm.

For that matter, why should parties and, if any, their lawyers, be required to make a personal appearance for a default hearing? Wis. Stats. §767.235(1) requires that “…all hearings and trials to determine whether judgment shall be granted…shall be before the court.” During this crisis, some counties have allowed the parties to waive this requirement, just as all sorts of legal requirements can be waived by agreement. After all, criminal defendants can (and often do) waive the important constitutional right to a jury trial.

The argument for personal appearances is that it allows the court to confirm that the parties knowingly and voluntarily entered into the agreement and failure to allow the court to view the parties could leave to problems down the road. That’s valid, but how often does such a determination ever make a difference and – when it does, is it worth the cost which is incurred in all of the other cases?

An Unscientific Survey

One theory of our system of American jurisprudence is that we have 51 laboratories for experimentation (including Washington D.C.) and there should be some cross-learning. So as a totally unscientific survey, I asked some friends who are experienced family law attorneys for the rules in their states. Even though only asking a fraction of the total of 51 laboratories, lawyers in the following states advised that no personal appearance is required for most or all default divorces: Oklahoma, Oregon, Alabama, Pennsylvania, California, Kentucky, New Mexico, North Carolina and South Carolina. All reported no problems with their process.

Again, my informal survey was only a fraction of the fifty-one jurisdictions, so my suspicion is that Wisconsin is in the minority by requiring an appearance for an uncontested divorce.

As with pretrials, the cost for requiring a personal experience in terms of legal time and lost work time is significant. So, to the extent an affidavit procedure could create a problem in a few cases (which does not seem to occur in states which allow such a procedure), as with pretrials, any such problems would be outweighed by the savings.

Watching U.S. Supreme Court Hearings

Finally, while not strictly family law related, one effect of the crisis is the U.S. Supreme Court allowing live audio broadcast of oral arguments. The Wisconsin Supreme Court has long provided for such access, but neither court allows video broadcast. I’ve never understood their reluctance to do so. I’ve had the pleasure of appearing before the Wisconsin Supreme Court several times and (well, with one exception) they have been the high points of my legal career. Both during my appearances and when I’ve listened to arguments or read transcripts, I’ve been amazed at the high level of discourse. For the most part, it’s smart lawyers and judges, highly prepared, discussing the role of law in forming our society. In most cases, it’s simply majestic. In the highly visual media of the 21st Century, one would think that the court would want to promote access in a video format rather than oppose it. Go figure.

Conclusion

None of this – even if continued past the crisis (which cannot happen soon enough) outweigh the costs of dealing with it. But it would be nice if this very, very ill wind (no pun intended) blew at least a little bit of good.

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.