In law there’s a concept called “stare decisis” (“starry de-cy-sis”), more commonly known as “legal precedent”. To put this in very simplified terms, “legal precedent” is the relatively obvious idea that once a legal principle has been decided one way, it should be decided that way in the future. And the more it’s been decided that one way, the harder it should be to change.

This is generally good for people charged with crimes, because it means the rules of the game are known ahead of time. A defense attorney can know how similar cases were decided, how appeals from similar cases were handled, and develop the best possible case to help their client.

How does this work? As with many things involving people, there are two factors involved.

The first factor is what the law actually says. Circuit Courts in Wisconsin are the front lines of the criminal justice system, and they’re supposed to follow the law. But sometimes the law is unclear, or they don’t follow it properly. If the law is unclear, cases will be appealed to the Court of Appeals. If the Court of Appeals consistently rules a particular way, that helps the Circuit Court judges know how to handle those matters next time. If they outright ignore the law, the appeals courts are there to make sure that peoples’ rights are protected.

And in the case where a case gets escalated to the Wisconsin Supreme Court or the U.S. District Courts, those clarifications come with more legal weight. The Wisconsin Supreme Court sets precedent for all of Wisconsin, and if the U.S. Supreme Court rules on something, that’s the strongest clarification there is. Every court in the country will use a U.S. Supreme Court decision as precedent for deciding future cases.

But why? What keeps judges from just ignoring the precedent?

The other factor is the opinion of others – particularly other judges. To understand how this helps to ensure the law is followed, it helps to think of judges as employees. Most employees don’t want to do things that are going to cause their bosses to yell at them, so they’ll avoid doing those things unless they think there’s a very, very good reason.

When a judge’s decision is overturned on appeal, it’s like a boss calling in an employee to yell at them. Judges don’t want that to happen, and because this is all happening on the public record they definitely don’t want to be known as “that judge who keeps making bad decisions”. This means that lawyers can remind judges of the existing precedent if the judge is going off track – and it usually puts things back on course.

These things help protect the “rules of the game”, but they can also work against people trying to argue their case.

For example, an argument that seems obvious to a defendant may have already been tried – and been overturned on appeal – multiple times. Or a similar case may have been tried, which may come in as precedent on the defendant’s case. In such a case, the strategy for making that argument could potentially be that one would expect to lose at the Circuit Court level, but win on appeal once a higher court hears the case.

And that’s risky. Too risky for many people, both in terms of their liberties and in terms of what they can spend on legal fees. This can sometimes lead to more “safe” outcomes, including taking plea agreements in cases that may otherwise be winnable if pushed far enough.

In the most egregious cases of abuse we have organizations that step in to help with things like legal fees and appeals. The ACLU is one such organization, and there are other legal defense funds that step in for particular types of cases.

But this is all yet another reason you want a qualified lawyer in your corner. The outcome of your case isn’t just based on what the law says “as printed” – it’s based on the entire legal interpretation of that law, and the interpretation of similar, related laws on the state and federal levels.

This means that it’s crucially important that you have somebody on your sided who understands all of those decisions, how they impact your case, and the various arguments that will let you make the strongest case – with the highest likelihood of success.

If you ever need somebody like that in your corner, give me a call. I take great pride in helping my clients understand the complete situation, along with all the legal nuances, and finding the strategy to get them the best possible outcome!

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