21st February 2024

Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected].

For a number of years, I’ve put together a family law cases update program for the American Academy of Matrimonial Lawyers, the State Bar Family Law Section and the state family court judges.

For the last several years, I have noted the dwindling number of family law cases decided by the appellate courts. Last year set a new record low – there were zero family law cases decided by the Wisconsin Supreme Court. There was one case recommended for publication by the Court of Appeals, but the issue was about frivolous costs, not strictly a family law issue. The total number of unpublished, but citable cases by the Court of Appeals in this field: three. Not so many years ago there would be 10 to 15 cases decided by the appellate courts in a given year.

This represents a significant change in the practice of family law. I was hired by my current law firm out of the District Attorney’s office to serve as the firm litigator. For years, I was in court constantly, trying any number of cases per year. Today, any trial is a rare thing. Being a family law attorney has become a negotiation role. Some of this is due, I believe, to a general societal change which is concerned with the cost of litigation – and rightly so, trials are expensive. A great deal, and consistent with the foregoing, is due to the widespread use of mediation.

As I’ve said before in this column, the almost total disappearance of trials is, overall, a good thing. Settlement saves cost and – especially important this this field – is more conducive to a positive future relationship between the parties.

Of course, there is a downside to everything. The lack of appellate opinions makes it difficult to advise clients as to likely outcomes in court. It is a valuable settlement technique to tell a client that a certain result is going to happen anyway, so he or she might as well agree to it. Absent knowing the proclivity of a court, this does not have any meaning. Still, this is a small price to pay for peace rather than war. Good lawyers will find other mechanisms of convincing clients of their BATNA (Best alternative to a negotiated agreement).

For me, I don’t miss trials – in addition to the increased costs, the risks of losing is too great and I really dislike losing. As a colleague of mine once put it – “When I win in court, I’m happy for a day. When I lose, I’m depressed for a year”.

As a result of the lack of trials, I’ve joined JAMS to serve as one of their mediators. I’ve opened up my Wisconsin case law files to the general public: www.wifamlaw.com.  And I’ve notified the organizers of the programs where I present case law updates that we no longer need an hour and half to present new cases; 30 minutes will do just fine — if we speak slowly.


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