Notes From the Bench
Kathy Stilling’s time as a judge informs her new approach in private practice
Published in 2021 Wisconsin Super Lawyers magazine
By Kellie MacDonald Freeze on November 16, 2021
Kathy Stilling was a third-year law student at Madison when she was assigned a client through the legal defense project. When she met him in his jail cell, she says, “He was stark naked, and had been involved in art projects in his cell with his own bodily waste, and was just floridly psychotic.”
Four decades later, Stilling is still proud as she shares, “We got a really successful outcome. The case got dismissed, my client got stabilized on medication, and he got to go home.”
Stilling worked as a public defender before moving into private practice. Six years in, she joined a firm with her husband, Jerome Buting, whom she met on their first day in the Milwaukee office of the Wisconsin State Public Defender. “They made us partners in-kind and we got to be really good friends. I second-chaired his first trial, he second-chaired my second trial,” Stilling says. “Eight years later, we got married.”
In 2010, then-Gov. Jim Doyle appointed Stilling to fill a vacancy in the Waukesha County Courts. When she returned to her practice at the end of 2011, she had gained invaluable insight into how courts are run. Stilling shares her experience with others—explaining the unseen pressures on circuit court judges and how lawyers can help judges do a better job—and encourages more defense attorneys to seek the bench.
“The public doesn’t necessarily understand that judges really should come from a variety of experiences—civil, criminal, prosecution, defense, and diversity in terms of your past experiences—all of those things come into play when you’re a judge and you’re making decisions,” Stilling says.
She points to three major constraints facing judges: calendar, volume and public perception.
“Judges have a very busy calendar and face pressure to get cases done and to not keep people waiting all day long. Together with that is a huge volume of paperwork. Every time I came off the bench, there was a stack of things on my desk that I had to review and sign,” she says. On top of that, she says, judges are often perceived as political positions, especially in Wisconsin. “Judges are always aware of the public perception of the decisions they make, because they are elected officials.”
Now Stilling advises fellow attorneys on how to present their arguments in a way that helps their clients as well as the judges. “If I’m going to ask a judge to do something controversial, I have to help the judge make a good record about their decision so it can be explained to the public,” she says.
In terms of argument, she recommends clarity and brevity. For example, Stilling might present a cover sheet that reads, This case is about an unconstitutional search of the defendant’s home in which the following items were seized. “I put it in bite-sized pieces so the judge knows exactly what I want, and where the argument is going,” she says.
Judges are not walking law books, Stilling adds. When citing a specific ruling, she encourages attorneys to share those points in advance of trial. “Give the judge some direction,” she says. “Don’t just come in and expect them to start reading statute books while they’re sitting on the bench.”
Stilling says she’s winding down her cases and pondering retirement. Reflecting on her career, she’s proud she chose her practice area.
“Criminal defense is not about money. It’s about the human condition,” she says. “What are people’s motivations? What is their background? What’s driving all the various participants in an event? It’s about such a basic thing as liberty. It’s about, are you put in a cage or do you live your life?
“Looking forward, I think it’s going to be less about what I do than who I am,” Stilling continues. “I don’t really feel like I need to accomplish anything in particular anymore. My career was more satisfying and more successful than I ever hoped it would be.”
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