New rules relating to sentencing and probation revocation today, October 1, 2009. Most of these changes apply only to sentences or revocation filings that occur after today’s date.

Under the new rules, the Earned Release Review Commission (ERRC) will have the authority that used to be with the sentencing court to adjust a sentence of an inmate who has served 75 percent of a term of confinement for Class F to I felonies, or 85 percent of the term for Class C to E felonies.  Also new is Positive Adjustment Time that allows DOC to give credit for days served without rule violations and in compliance with the inmate’s programming.

Early release is added onto an inmates Extended Supervision (ES), otherwise known as parole.

The ERRC, rather than the sentencing court, will from now on consider petitions to reduce a sentence for an inmate with an extraordinary health condition, such as advanced age, infirmity, disability or a need for medical treatment or services not available within a correctional institution.

Inmates incarcerated for a misdemeanor or nonviolent Class F to I felony (except for sex offenders) will also be allowed to petition DOC for early release to ES if they are within 12 months of the end of their confinement time. DOC is to promulgate rules for determining whether bifurcated sentences should be modified under this provision.

If an inmate is revoked off ES, the length of their sentence will no longer be determined by the court. Now, the sentence will be determined by the Judge who did the revocation hearing, or if the hearing is waived, by DOC (probably the agent.) DO NOT WAIVE AN ES REVOCATION HEARING WITHOUT TALKING TO A LAWYER FIRST.

The Challenge Incarceration Program and the Earned Release Program are being expanded.

Chris

Most people don’t know this, but a jury is completely allowed to find a person not guilty even if the evidence overwhelmingly supports the conclusion that the person is guilty. This is called Jury Nullification. A federal judge in New York recently wrote an article on it, including a good example of when it happens.  This may be way TMI for you non-lawyers out there, but if you are curious, I give you here an excerpt:

Perhaps the textbook example of jury nullification in a gun possession case is the recent acquittal of Cpl. Melroy H. Cort. As recently reported in the Washington Post,35 the defendant, a U.S. Marine whose legs had been amputated above the knees when he was wounded by a makeshift bomb during his third tour of duty in Iraq, was traveling from his home in Ohio to Walter Reed Army Medical Center in D.C. for treatment. While traveling in Washington, he had a flat tire, forcing him to pull over at a car repair shop. A witness noticed that he had a gun in his jacket pocket and called the police, who arrested him as he was sitting in his wheelchair. He offered no resistance and readily admitted that he was traveling with the gun.

Since the defendant was not licensed to possess the gun in Washington, as required by D.C. law, his court-assigned attorney advised him that he had no defense to the charge and encouraged him to plead guilty. Cort refused, fired his lawyer, and represented himself at trial. He testified about the loss of his legs and explained that he had a permit to carry the gun in Ohio, and had brought it with him because he had moved out of his house in anticipation of an extended stay at Walter Reed. He told the jury that his commanding officer had advised him to take the gun to the armory on Walter Reed’s base as soon as he arrived. Given that the defendant admitted that he possessed the gun in violation of D.C. law, his acquittal clearly amounted to jury nullification.

The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly.36 At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court.”37 After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believed it such, it was not a finable fault, nor deserving imprisonment. …”38 Bushell’s Case is widely cited as the first precedent for the independence of the jury.

Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the United States. Zenger was charged with publishing seditious libels against the governor of New York; it was clear he had published the writings in question. Although the court instructed the jury that it could only consider whether Zenger had printed the material at issue and could not consider the truth or falsity of the writing, the jury acquitted Zenger, believing that he had printed the truth and should not be convicted.39

As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850s.”40 Even as late as 1910, Harvard Law School’s eminent Dean Roscoe Pound wrote: “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”41

There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States.42 In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the evidence supported a murder conviction, it did not support a manslaughter conviction. While the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly — not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable).43 The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”44

This anti-nullification view was expressed once again in Horning v. District of Columbia,45 where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law. …”46 Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute,] obviously the function of the jury if they do their duty is little more than formal.”47 While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since … on the facts admitted there was no doubt of his guilt.”48 In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury. …”49

The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty,50 Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions … from respected sources — John Adams; Alexander Hamilton; prominent judges — that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”51 However, he continued, “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”52

Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed.”53 Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”;54 as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary.55 Judge Bazelon, in dissent, criticized as “sleight-of-hand” the practice of intentionally hiding the right of nullification — the existence of which the majority had acknowledged — from the jury.

See the whole article:  Guns and Nullification or here on BadgerLawyer

A common misconception about the law is that it’s pretty simple. People think that when they have disputes, courts are there to hand down the fair and right answer. Unfortunately, that is far from the truth. Achieving a fair resolution in a legal battle is a lot more complicated than that. The reason brings me to the difference between procedure and substance.

All lawyers learn in law school the difference between procedural law and substantive law. Put simply, substantive law is about the substance of your case: the facts, the dispute, the “why” you believe you deserve to win. When most non-lawyers think about a legal case, they only think about the substance.

Procedural law, on the other hand, is what non-lawyers often call “technicalities”. Procedural law is the millions of rules that govern how a case can be presented to a court. Some of these rules are very important and make a lot of sense, others not so much. For example, one very important procedural rule is based on the 4th Amendment of the United States Constitution. That rule says that if evidence against you was gathered illegally by the police, then that evidence cannot be used at trial to prove your guilt. When you hear in the newspaper that a “criminal” got off on a “technicality”, very often that technicality is the most important legal document in the United States.

On the other end of the scale, there are procedural rules that seem patently unfair and counterintuitive. For example, if you are injured by the action of a government entity, in most cases, you must file a document called a Notice of Claim with that entity within 120 days of the date of your injury. If you don’t make that deadline, and if your Notice of Claim document itself doesn’t comply with the myriad of additional rules governing those claims, you lose your right to sue entirely. All too often, people are injured by the negligence of a government agency, but don’t realize that they have a very short amount of time in which to file their claim. Imagine if you were seriously injured due to government negligence and were hospitalized. You could easily spend weeks and months recuperating, healing, dealing with work loss, figuring out how to manage your life while incapacitated, and so on. Thinking about suing the government is not the top priority on your list. By the time you do think about it, you have probably missed your chance. That’s an example of a procedural rule that seems to serve no real purpose other than to cheat you, a citizen, out of your right to sue the people who make the rules.

Unfortunately, there are a lot of procedural rules which can result in your case being thrown out, no matter how good the substance of your case actually is. Successfully winning a court case is kind of like trying to walk across a balance beam with American Gladiators swinging at you to knock you off. It really doesn’t matter how good your case is if you get slapped down by a procedural rule. Dealing with procedure is an important reason why a lot of people decide to hire a lawyer. So if you do decide to go it alone, be very careful about making sure you understand all of the rules that you have to follow to get your case to a successful conclusion.

Chris

Okay, so that’s a common question, and a tough one to answer. If you ask a lawyer at the beginning of a case how much it will cost, he will hem and haw and talk and theorize, but usually he won’t answer the question directly. People sometimes think lawyers are being evasive, but the truth is they just don’t know the answer. Trying to put a price tag on a legal case is like trying to predict the weather. You can guesstimate, but you just can’t predict everything the other side in a case is going to do, and when the other side fights more, it costs more.

Putting a price tag on a legal case is like asking “How much does a car cost?” Well, it depends. What kind of car? New or Used? Basic transportation or status symbol? Environmentally friendly or sporty? Utility or family? And on and on.

The reality is you can spend $500 on a car, and you can spend $500,000 on a car. How much car you get depends on what you want and what you need and what you can afford. You know that you get what you pay for, so you spend more even though that $500 clunker turns over. And, you’re financially responsible, so you don’t go out and buy a Beemer when a Ford or a Honda will do just fine.

It is the same with legal services. How much it costs depends on the case, depends on what you want to accomplish, and depends on how extravagantly you want it done. You don’t want to hire a bargain basement lawyer anymore than you want to buy a too-cheap car. It’s just gonna let you down. And you don’t need to hire a high end lawyer who will spend a ton of your money to accomplish the same thing as a good, reasonably priced lawyer can. What you have to do is first find a good lawyer who you feel will get the job done for you, and then work out a price. It may be that you accidentally walked into a BMW dealership when you were looking for a Toyota, or stumbled onto a used car lot when you really want new. You may not find the right lawyer at the right price on the first try. And you may find that you still can’t get a straight answer on what the case will cost. Lawyers don’t like guesswork, and some of them just refuse to try.

At BadgerLawyer, we believe in giving a customer a price tag up front. Once we evaluate your case and your goals, we will be glad to give you a quote on a one time, discounted up front payment that will carry you through the whole case. That gives you the peace of mind knowing that the business end of the arrangement is taken care of, so all you have to do is sit back and let us take care of the law for you.

Chris

And no, trial skills isn’t number one.

Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.

Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.

Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.

Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.

Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.

Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.

No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.

Let me know what you think. What skills do you think a good trial lawyer needs to have?

Here is a reprint of my column from the July, 2009 issue of La Crosse Magazine.

One of my practice areas is criminal defense. When people find this out, they often ask “How can you defend criminals?” I can understand the question. Crime is a real problem, a social ill that brings loss and hardship to almost everyone at some point in their lives. So it’s natural, when you hear someone is accused of a crime, to see that person as responsible for all that suffering. Fair enough.

But when you think “criminal,” chances are you are thinking of someone who is dangerous, violent, malevolent. True, there are monsters like that out there, but they are relatively rare. I’ve met about five in my career. The truth is that most people accused of crimes don’t live up to the public image of the word “criminal.” Rather, they fall into one of three categories.

A lot of people charged with crimes just made a stupid mistake. Maybe had one too many and got into an accident. Possessed some pot in college. Got in a fight. Stole from an employer with the intent of repaying. Temptation plus a momentary lapse in judgment can land an otherwise good person in a lot of trouble. For these folks, just being accused is humiliating, and the possibility of conviction destroys their plans for their future. They immediately realize what they did was wrong, and are at no risk to ever reoffend.

Another major source of criminal charges is addiction. Many of the folks I help are people who got addicted to drugs or alcohol, and are living the consequences. Addiction is a parasite. It lives in the part of the brain where a good upbringing used to be and makes the person a slave to getting high. There are a lot of ways to get in trouble due to substance abuse: petty theft – these days identity theft, domestic violence, drunk driving, disorderly conduct, and of course possession.

A third large group of the criminally accused is the mentally ill. The under-diagnosis and under-treatment of conditions like bipolar disorder cause people to self-medicate with alcohol and other drugs. This creates a cycle of addiction that leads down the path of poor judgment and impulsive behaviors. A frequent symptom is irrational rage, eventually leading to domestic violence arrests. Another result is unemployability, leading to homelessness and the crimes that come from trying to survive on the streets.

I think it is worth noting that two of the major causes of crime are actually medical conditions. Addiction and mental illness can be far more effectively treated by a doctor than a prison warden. If you want to lower crime, support healthcare reform. Certainly, there are those who deserve to go to prison – the unrepentant, the sociopaths – but the prisons are full of people for whom in-patient treatment would be a better – and surprisingly cheaper – option.

So, when people ask me how I can represent people accused of crime, I tell them most of the people I represent aren’t criminals. They may have made a mistake, or they may suffer from an illness, but they aren’t evil. I am reminded that Jesus, himself accused of crimes, forgave the condemned criminal hanging beside him. I like to think, when I see those WWJD bumper stickers, that helping the innocent, the repentant and the suffering is the right thing to do.

Here is a reprint from my recent article in La Crosse Magazine.

One thing I’ve noticed in recent years is that the law has undergone an enormous, but unnoticed, change. When I was a kid, a lawyer was somebody you hoped you’d never need, and you probably wouldn’t. Lawyers lived in high rise offices and “handled” “situations” for rich clients. The only time we common folk might need to visit a lawyer would be to see the local guy about a will.
My how that has changed. The skyrocketing rise in divorce rates has driven more than half of everyone who gets married into a long-term, expensive relationship with a litigation attorney. Decades of “toughness” on crime has lead to the criminalization of conduct that used to be legal, and now hardly a family hasn’t had a brush with the law. The growth in home-based and small businesses has led to literally millions of Mom & Pop LLCs that have a need for legal counsel, whether it’s just to make sure the papers are in order, or to defend the lawsuit if they aren’t.

Being a lawyer nowadays is a lot more like being a doctor or a dentist. Pretty much everybody is going to need a lawyer in a significant and ongoing way some time, probably several times, in his or her life. Given this fundamental shift in who needs legal services, you might think that law firms have drastically switched their approaches to how legal services are provided.

You’d be wrong.

If there’s one thing the law is, it’s traditional. To give you an idea, community property law – the law that divides assets in divorce – was invented by the Visigoths. For those who missed that history lesson, they’re the ones who brought Ancient Rome to its knees. So, change happens slowly.

Why? Lot’s of reasons. Lawyer regulations discourage change – we couldn’t take credit cards for most services two years ago. Lawyers by nature are a conservative lot – we’re afraid you won’t come to us if we don’t have expensive, traditional offices. Lawyers aren’t risk takers – it’s our job to worry about what would happen if everything went wrong, and that gets to you after awhile. Lawyers just don’t do change – our whole system is based on the law of stare decisis, legalese for “if it ain’t broke.”

But, the world is changing, and somebody has to be the first to jump. There ought to be ways to offer legal services with fee structures more friendly to the everyday person. If you, the prospective client, can accept a non-traditional (read: cheaper) office, the savings can be passed along. If lawyers could find a way to do what doctors already do – charge for specific services (e.g., an x-ray, a strep test) – instead of signing on for the whole case or not at all, you could buy only the legal services you needed.

In fairness, law is different from medicine or other professions. The law can ruin lives, like illness, but the law will let you represent yourself – try asking a surgeon to pass the scalpel. The law rarely offers a clear answer – “gray area” is our favorite word. It makes sense to have a lawyer for the whole case, most of the time, but it also makes sense, to me at least, to have a lawyer for just part of your case if that’s all you can afford. Isn’t some better than none? I don’t pretend to have all the answers, but I think we should start the discussion. Please join me and weigh in with your thoughts.

Okay, that’s a misleading title. This is not a post by some old guy ranting about how all you young folks are too loud all the time. No, the Badger is just fine with that.

What I hate is the disorderly conduct statute. The law that makes it a crime to engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to provoke a disturbance.

Perhaps you read this and wonder, what’s not to like?

Lots of things. This is a criminal statute. There are a lot of serious ramifications. Upon conviction, you can go to jail for 90 days and get a $1000 fine. If you get three of them, the penalties for most any additional criminal charge go through the roof (think, two years for a noise disturbance). If you get convicted, you’re a criminal and you’ll have to explain that on every job and professional license application for the rest of your life. Your name will appear on CCAP and everyone can read all about it. If you are going through a divorce or child custody issue, you’re a criminal, and also irresponsible, right? Couldn’t control your behavior and got all disorderly? And heaven help you if it was a domestic DC. Even a minor conviction for disorderly can haunt you in many ways.

But disorderly is also the least serious crime out there. If you represent yourself, very likely you went to visit the DA and were offered a fine if you pled guilty. That probably sounded good. After all, you did do what they said, and your behavior certainly fit into list above .. boisterous, profane, or if nothing else “otherwise disorderly conduct.”

And there’s why I hate this statute. Anything, and I mean just about anything, can fit within the definition of disorderly conduct. If you yell at someone, or grab something out of their hand, or whoop it up, or drop an F bomb in the wrong place, you could catch this charge. That gives an awful lot of power to the police — power they aren’t supposed to have — to pick on certain people they don’t like. And the statute to me makes it really hard to figure out what you can and can’t do. Maybe you want to stand outside the courthouse and yell about the bad job you think some judge is doing. That’s called protesting, but it’s also disorderly conduct. Knowing you might get arrested, are you still going to go tell the world what you think, or maybe are you going to let it ride?

I think the DC statute is unconstitutional, and I am sad that the Wisconsin Supreme Court disagrees with me. I believe in our right to free speech, press and association, and I don’t think we should be arrested for speaking our mind, even if there is an F-bomb in there. And I also believe the police should not have the subtle power to single out groups or individuals they don’t like and arrest them at random on some “otherwise disorderly conduct.” And the thing is, the Wisconsin Supreme Court agrees with me. They say well, people in prosecutor’s offices are sensitive to the Bill of Rights, so certainly those cases where the disorderly conduct is actually an exercise of free speech won’t be charged.

If only that were true. I see case after case where someone should not be charged with a crime but the DA and the police don’t want to let him go. So they throw a DC on him. And worse than that, I see lots of cases where people, including some with lawyers, plead out to the charges without ever challenging the constitutionality of their particular case. After all, it’s only a DC, right?

And that’s where I think the Wisconsin Supreme Court ought to reconsider the issue. While it is true that the courts are there to weed out the bad cases, the reality is that people can’t usually afford to hire some big gun lawyer to fight a lowly disorderly conduct. So people plead and get a fine. And prosecutors know that. And cops know that. So the fact is, it doesn’t matter what the learned Supreme Court has said about the way the law ought to be used, because that’s not the way it is used in practice. You can’t have a law so broad that anyone is a criminal and leave it up to the enforcers to decide. The law has to set the limits itself. Otherwise, we might all be too afraid to raise or voices in protest. And that’s why I hate disorderly conduct. The law needs to be re-written to make it clear what is criminal disorderly conduct, and what is us acting free.

At BadgerLawyer, we’re all about empowerment. Making available to you information about the law that you can use to help yourself in the event you have to go it alone. That does not mean we advocate representing yourself. Far from it. The information on this website is only a tiny fraction of what a good lawyer knows, and your skill in the courtroom, no insult intended, isn’t close to that of an experienced trial attorney.

But doing your own divorce is easy, right? You just go to court, file some forms, fill out financial statements, and then four months later voila, you’re divorced. Why pay someone to do that? Well, kind of the same reason you pay someone to cut your hair. Sure, you can do it yourself (the Badger confesses he cut his own hair frequently in middle school to irritate his mother). And yep, it’s going to look terrible. But it will be out of your eyes, off your neck, and over your ears. Functional, but don’t go on any job interviews. It’s the same with DIY law, except that given a little time, hair grows back. Mistakes made in court — and there’s lots of room for error — often can’t be fixed. Not to mention that bad court rulings tend to hurt a lot more than a bad haircut.

So here are a couple specific, good reasons to hire an attorney to help with your divorce. What’s going to surprise you is a good divorce lawyer can pay for himself.

Ongoing Financial Obligations
In all likelihood there will be continuing financial obligations between you and your spouse after the divorce, whether in the form or child support or spousal maintenance. You will either be receiving payments or paying them. The decision about who, and how much, will be decided by a judge. The judge may be fair, but he is not going to research and investigate your case for you. The decision is really going to be made based on what is presented to the court and how the case is argued.

You are up against your ex. Someone who obviously does not have your best interests at heart anymore. Someone who may be thinking very selfish thoughts about the money divisions right about now.

You don’t know the law. You don’t know everything you are entitled to. You don’t know all the things that might be exceptions to your obligations. The chances of you not getting the best result for you are pretty significant. If your ex hires a lawyer, the chances are close to 100%.

If you hire a lawyer, you get the best result possible for you and your children. Think of it this way. If a lawyer gets you even $100 per month better result, that extra cash is going to pay for the lawyer within a few short years. And that’s just $100.

The Wise Man Builds His House on a Rock
Not all court orders can be changed. Those that can be changed sometimes have long waiting periods before changes can be made. That the law. There’s also reality. Judges are human, and once they have reviewed a case and rendered a decision, they aren’t going to want to revisit it. They are trained legal specialists with confidence in their ability. The very first thing they will think is “If I made the right decision three months ago, why would I make a different decision now?”

What I’m getting it, is once an order is issued, it becomes the king of the hill, and if you want it changed, you have to come up with a pretty good reason for changing it.

The DIY problem is that you aren’t trained to think about all the little legal issues that could come up later, and you may agree to something now that sounds fine, only to realize that you signed a custody sharing agreement that has the kids with your ex for your mom’s next four birthdays, and she’s not happy with you. Or that you need to change jobs but your support payments have you so cash strapped you can’t get on with your life. Or your ex is getting remarried and the new spouse wants to go to a different church, and that isn’t mentioned in the decree.

If you do it yourself, you are going to end up back in court more often, fighting more, and get less of what you want. It may cost more up front to hire a lawyer, but it will save you money, headaches and time in the long run.

It’s easy to be in favor of being “tough on crime.” No one likes criminal behavior, and being victimized can range from annoying to life ending. So why not “lock ‘em up” ? But society also recognizes that we should have limits on what we do to those convicted of crimes. We don’t cut off the hands of thieves like in some countries, publicly torture people like in the Middle Ages, or execute people like in some other states. Criminal behavior, our society recognizes, doesn’t justify unlimited punishment. We have to stop somewhere. The question is where.

To make the question more complicated, there’s also the expense of punishing people convicted of crime. Your tax dollars keep the prisons open, and the more people courts put in prison, the more it costs. More and more people today are ending up on probation, which isn’t the get out of jail free ticket a lot of people think. Any violation of probation can result in revocation, and that means off to prison. That might sound easy, but probation has dozens of rules, including things like checking in regularly in person and random drug testing. For most people, that means having a car. Given that crime and poverty go hand in hand, it is no surprise that many probationers just can’t always get a ride. An it is usually a condition of probation that the offender have a job. In this bad economy, losing your job can equal a violation of the rules and off to the big house. In an ideal world, probation officers would be sympathetic people who understood the many problems faced by their clients, but POs are overworked, underpaid, and have too many cases to give much individual attention. What it comes down to is either you follow the rules or you don’t, and that isn’t always in your control.

In this tough economy, these kind of revocations, where no new crime has been committed, are increasingly common. We’re spending millions of dollars to put people in prison for not being able get a job or a car. I think it is time for us to re-evaluate our sentencing system thoughtfully, with an eye toward what we can do to save tax dollars while maximizing the rehabilitation of offenders. While it may feel good to get “pay back” by putting someone in prison for what they did, in the end that doesn’t do any good. It doesn’t help them learn how to lead a law-abiding life, it locks them up with hardened criminals, and it is the most expensive option available to the public. If a politician came up to you and said let’s spend the most money possible for the least possible payoff, you’d vote for the other guy. For three decades now, that’s what we’ve been doing, and it’s not working.

Related: Too many probationers sent back to prison

Chris