Practicing Law in 20th Century Wisconsin: Continuity and Change in
Everyday Legal Life, Part 2
Editor's Note: This is the 17th in a series of
articles on Wisconsin's legal history appearing in the Wisconsin
Lawyer. This article is part of a project in which the author and
others are undertaking to add to the work of Chief Justice John B.
Winslow in writing about and reviving interest in Wisconsin's legal
history.
By Joseph A. Ranney
The modern history of the practice of law in Wisconsin has been
largely shaped by the state's dramatic growth in the 20th century and
the corresponding growth of its legal community. The previous article in
this series examined the way in which Wisconsin's two major legal
institutions, the courts and the State Bar, reacted to that growth.
1 This article examines the effect which
20th century growth has had on the everyday life of lawyers.
An Era of Slow Change, 1900-1950
In 1900 the bar was overwhelmingly male and concentrated in private
practice. The vast majority of lawyers practiced alone or with one
or two colleagues; larger firms were rare. Only a handful of lawyers
worked as in-house counsel for corporations and government. The 19th
century tradition of lawyers as generalists was still strong. A few
lawyers in the larger firms in Milwaukee were beginning to specialize in
business counseling and other forms of "office law," but throughout the
rest of the state lawyers were expected to handle litigation, real
estate transactions, probate and any other type of business that came to
hand. Economically, most could not afford to do otherwise.
The dramatic growth of the state and the legal community in the 20th
century can be felt by attorneys in their everyday legal lives. Its
effects include the overhaul of Wisconsin's civil procedure, the shift
to legal "specialists," new legal fields, more medium and large firms,
the wave of baby boomers to the profession and the influx of women
lawyers, among others.
Areas of Practice. Did the vast changes in Wisconsin
and American government and society between 1900 and 1950 radically
change the practice of law? Only in part. The factual nature of
the problems lawyers were called upon to solve changed dramatically, and
several new areas of law including administrative law, tax law and labor
law arose out of the expansion of government regulation during the
Progressive era and the New Deal. But the basic legal nature of
most lawyers' work changed little.
For example, Prof. Emily Dodge of the U.W. Law School surveyed the
office work of a leading Milwaukee firm between 1908 and 1950 and found
that the business of the firm's major clients changed significantly
during that time. Railroad business counseling and litigation, a staple
of the firm's business in 1900, declined throughout the first half of
the 20th century but was replaced by work for automobile manufacturers
and insurers. Changes in the firm's commercial credit and finance work
also reflected changes in the economy: As private financing's role in
the market declined and financing through public stock offerings grew,
the firm's surety business declined and its securities work grew
correspondingly. Some types of business remained relatively constant:
Insurance, real estate and corporate transactions other than financing
all were important parts of the firm's business throughout the period.
2
However, the mix of legal skills that the firm needed to serve its
clients changed only modestly during the first half of the 20th century.
The only changes of any significance were a modest increase in
contract-related matters from roughly 10 percent to 20 percent of the
firm's workload and a corresponding decrease in real and personal
property matters from 20 percent to 10 percent. General business, tax
and regulatory counseling formed the bulk of the firm's work throughout
the first half of this period.
Because the Milwaukee firm was an elite large-city firm and had a
policy of not seeking out tort or family law matters, it might not have
been representative of Wisconsin lawyers as a whole. But a long-term
study of litigation in Chippewa County during the same period shows a
similar stability in the mix of work available to lawyers. The only
significant changes in Chippewa County from 1900 to 1950 were that, as
in Milwaukee, contract-related cases increased (from about 20 percent to
30 percent of the total caseload) and real and personal property matters
declined (from 30 percent to 10 percent). Tort cases also increased from
10 percent to 25 percent of the total caseload in Chippewa County during
the first half of the 20th century.3
In sum, the Milwaukee and Chippewa County surveys are as significant
for what did not change as for what did change. The
rise of the automobile had a major effect on lawyers' business during
the first half of the 20th century. Real and personal property law had
so matured by the end of the 19th century that they generated much less
controversy and litigation in the 20th century. But no traditional areas
of law disappeared. The new legal fields of the 20th century - labor,
tax and administrative law - significantly changed the landscape of the
law but played little or no part in the practice of most lawyers.
Contract, tort, property and business law were the staples of practice
for most 20th century lawyers, just as they had been for 19th century
lawyers.
Organization of Legal Practice. Solo and small-firm
lawyers remained dominant in Wisconsin throughout the first half of the
20th century. Corporate and government legal staffs grew more rapidly
than the solo and small-firm sectors from 1900 to 1950, but not
dramatically so. By 1955 half of all lawyers still practiced alone. Most
firms had six lawyers or less, and the largest firm in the state had
about 36 lawyers. (See
Figure 1. 4)
Income and Job Security. Throughout the 20th century
Wisconsin lawyers have alternated between optimism and anxiety about the
future economic prospects of their profession. For example, in 1934 Dean
Lloyd Garrison of the U.W. Law School acknowledged that the Depression
had hit lawyers hard but at the same time optimistically concluded that
in recent years "the volume of legal business and the opportunities for
lawyers have increased much more rapidly than the increase either of the
lawyers or the population." 5 Even in the
1960s, a time of prosperity for lawyers and the economy in general, bar
leaders bemoaned the lack of public respect for the profession and 30
percent of Wisconsin lawyers reported they did not have enough work -
twice as many as said they had too much. 6
Paradoxically, despite the bar's ongoing concern about economic
insecurity, periodic income surveys made by the U.W. Law School and the
State Bar since the 1930s show that lawyers' incomes adjusted for
inflation have remained remarkably stable. In 1929 the average income
for the profession consistently was about $50,000. Incomes dropped
temporarily during the Depression, but no more so than those of most
other occupations. There was a noticeable and widespread increase in
income during the 1960s and early 1970s, but incomes in all sectors of
the bar have largely leveled off since that time and are not
dramatically higher in the 1990s than they were in the 1920s. (See
Figure 2. 7)
Life in Court. The most important change in
courtroom life between 1900 and 1950 was a major reform of Wisconsin
civil procedure in the 1930s. At the turn of the century Wisconsin's
procedural rules, like those of many other jurisdictions, were riddled
with technical requirements. Failure to comply with arcane and obscure
rules for service of process, drafting pleadings and preserving trial
objections often led to the dismissal of otherwise meritorious lawsuits.
8
Shortly after 1900 a national movement arose to simplify these rules
and eliminate the injustices they often led to. The movement was
triggered in part by the complaints of many Progressive-era reformers
that the courts were unjustifiably obstructing needed social and
economic reforms. It reflected the concern of many bar leaders that if
the legal system did not reform itself, the Progressives would force it
to submit to more radical changes. Chief Justice John Winslow vigorously
promoted the procedural reform movement in Wisconsin:
"[T]here is always a certain fascination in the operation of a
beautiful and ingenious machine. ... The stationary engineer loves his
engine for its very intricacy, and the skilled legal logician loves his
complicated procedure for much the same reason; both are apt to forget
that their machines are only valuable in proportion as they accomplish
useful results. ..."
"The man who demands justice and whose most important interests are
hanging in the balance awaiting the action of the court is not likely to
become lost in admiration when his lawsuit is delayed for years while
brilliant intellectual combats over questions of procedure are fought
out by the lawyers. He does not want his lawsuit turned into a mere
chopping of logic. ... This is a serious indictment; one which cannot be
ignored or laughed away, nor can it be met by mere denials. The bench
and bar must take up this subject and take it up seriously." 9
Winslow argued that the Wisconsin Supreme Court was in a much better
position than the Legislature to decide what new rules would be most
effective, and he repeatedly urged the Legislature to give the court
rule-making powers. In 1929, several years after his death, the
Legislature finally gave the court the power "to regulate pleading,
practice and procedure ... for the purpose of simplifying the same and
of promoting the speedy determination of litigation upon its merits."
10
Francis McGovern, a leading Milwaukee lawyer and former governor,
challenged the law as an impermissible delegation of legislative power,
but in the Rules of Court Case (1931) the supreme court
rejected the challenge. The court pointed out that civil procedure
traditionally had been just as much a judicial as a legislative function
and emphasized that "there has been a demand for reform ... far too
insistent to indicate anything less than a corresponding need. The duty
of governmental bodies to respond to such demands is self-evident."
11
After issuing its decision the supreme court quickly made major
reforms. Among other things it provided for quicker and easier service
of process; allowed all claims arising out of a given accident to be
brought in one suit even where they involved different parties, so that
inconsistent outcomes could be avoided; and created a summary judgment
procedure for the first time.12 At first
summary judgment was limited to actions on debts, liquidated damages and
judgments, but it proved to be a popular and effective tool for reducing
caseloads and in 1941 the court expanded it to encompass all types of
actions. At about the same time the court authorized pretrial
conferences to simplify the issues and expedite discovery in civil
suits.13
These reforms led to the final demise of the 19th century style of
litigation. During the early 20th century, as during most of the 19th
century, the courtroom was a major source of public entertainment and
trial lawyers were appreciated as much for their oratory as for their
other legal skills. The fact that a case might be thrown out at any time
for failure to comply with a procedural technicality only added to the
excitement. Procedural reform was welcomed by most lawyers and judges,
but not without some nostalgia for the old system. Speaking in 1962
Ralph M. Hoyt, a prominent Milwaukee attorney whose career had begun in
1911, commented:
"These ... reforms ... produced a very substantial change ... in the
direction of minimizing the gamy character of a lawsuit and making it
more of a businesslike inquiry into facts and law. ... That this is a
distinct advance in the expediting of judicial work is not to be denied,
but to the lawyer whose experience in trial work dates back over several
decades, this mechanizing of the trial of a lawsuit may well bring a
twinge of regret. A good deal of the fun has been taken out of the
management of litigation." 14
The Pace of Change Accelerates, 1950-1995
The years from 1950 to 1970 were, at least economically, a golden era
for the legal profession in Wisconsin. The end of World War II brought a
large new generation of lawyers into the bar. Many of the new generation
probably never would have considered the profession if the federal
government had not chosen to encourage higher education after the war
through veterans benefits and other subsidies. The booming postwar
economy created enough demand for legal services to absorb the new
generation and raise lawyers' incomes as well.
Organization of Legal Practice. The 20th century has
been marked by the transaction of more and more activities through large
social institutions, and in the 1960s Wisconsin lawyers fully joined
this trend for the first time. There was a sharp movement away from solo
practice; more and more lawyers went into group practices, particularly
medium and large law firms. Government and corporate legal departments
also increased their share of legal employment, although not at quite as
fast a pace as private firms. (See
Figure 1.)
The movement to group practice was partly due to the sheer growth of
the bar and partly to economic factors. Solo practitioners couldn't
afford to be selective about the types of work they took, but with the
economy becoming increasingly complex it was much more difficult for
lawyers to make a living as generalists than it had been in the 19th and
early 20th centuries. Hoyt observed in 1962 that:
"[T]he time-honored method of plunging into the practice of law is
becoming ever more rare. The lawyer entering private practice who
aspires to the handling of more important and fruitful work than the
probating of small estates or the examining of abstracts of title or the
conduct of petty litigation is virtually forced to find employment with
an established firm, and when he does so, if the firm is a large one, he
is likely to find his work confined to a specialized type of
practice."15
By 1975 only 30 percent of all attorneys practiced alone, down from
50 percent in 1950. 16 Milwaukee lawyers in
particular turned to firm practice much more rapidly than the rest of
the state, and Milwaukee's proportion of firm lawyers is now
significantly higher than that of any other part of the state.
The 1960s also witnessed the start of a noticeable gravitation of
lawyers to large cities, particularly Milwaukee and Madison. The ratio
of lawyers to total population in those two cities (5.6 and 8.5 lawyers
per 1,000 people respectively as of 1995) is now significantly higher
than in the rest of the state (2.75 lawyers per 1,000 people), and
periodically since the 1960s there have been calls for lawyers to take a
closer look at the unfilled legal needs and economic opportunities in
small cities and rural areas. 17
The Baby Boom Generation of Lawyers. A second wave
of rapid growth took place in the bar from 1970 to 1985, as the "baby
boom" generation began to make its mark on the legal profession. Many
law students during this period were interested in social reform and
thought a legal career would be the best way to pursue their interests
as well as make a comfortable living. However, the baby boomers quickly
learned they were facing a somewhat weaker economy than their
predecessors. In the late 1960s the main concern of the U.W. Law
School's placement service was finding enough lawyers to fill demand and
persuading graduates not to leave the state. Ten years later, the
problem was the exact opposite: There were not enough jobs for
graduates. 18 The economy ultimately was
able to absorb most of the baby boomers, but its instability and the
sheer size of the bar put an end to the widespread income growth of the
1960s; incomes have largely leveled off since 1970. (See
Figure 2.)
The gap between the baby boomers' expectations and the increasingly
tight economy and conservative political climate of the 1980s and 1990s
have triggered noticeable unrest among Wisconsin lawyers. It is
difficult to say whether the level of discontent now is higher than it
traditionally has been for lawyers, but it certainly is discussed more
openly. In 1983 a State Bar survey revealed that 32 percent of Wisconsin
lawyers would "really debate about becoming a lawyer again" and another
9 percent would definitely leave the profession. In 1980 the State Bar
assisted in creating a private organization, Lawyers Concerned for
Lawyers, to help lawyers with alcohol, drug and other stress-related
problems. In the late 1980s the State Bar concluded that these problems
had become serious enough to warrant creating an official State Bar
committee to address them.19
Women at the Bar. The most dramatic change in the
bar since 1950 has been the influx of women lawyers. In the early 1970s
women began entering law schools in large numbers for the first time.
This was due partly to the resurgence of the women's rights movement in
the 1960s and 1970s and partly to the cachet that law schools then had
as a path to power and social reform. 20 As
recently as 1975 women made up only about 3 percent of the bar. Since
then, that figure has increased fivefold. Women currently make up about
half the enrollment at Wisconsin's two law schools, so the percentage of
women lawyers likely will continue to increase.
Women entering the legal profession after 1970 encountered little
blatant discrimination, but many older lawyers found it difficult to
adjust to their presence. The problem was sufficiently serious that in
1984 the State Bar created a committee, chaired by Christy Ann Brooks of
Milwaukee, to study its true extent and recommend solutions.
The committee found that more than half of all women and 20 percent
of men had observed instances of "disadvantageous treatment" of women
and minorities. The most commonly reported problems were judges and
lawyers challenging a woman lawyer's credibility and capability where
they would not challenge that of a man; treatment of women lawyers with
undue familiarity, ranging from the use of mildly sexist terms such as
"honey" and "sweetheart" to overt sexual harassment; and a generally
condescending attitude. Few lawyers of either sex, however, believed
that blatant sex discrimination in legal hiring or judicial
decision-making was a significant problem. 21
The survey also showed that newer women lawyers earned about 15
percent less and more experienced lawyers about 25 percent less than
their male counterparts. The issue of balancing family and job demands
was of much greater concern, and was a much more serious problem for
women than for men. Many women lawyers looked for jobs that would allow
them to take leave or adjust their work schedules to care for their
children and relatives, but few found such jobs. 22
Joseph A. Ranney, Yale 1978, is a trial lawyer with
DeWitt Ross & Stevens S.C., Madison. He is the author of several
articles on legal and historical topic
The depth of the problem was brought home to Court of Appeals Judge
William Eich and Circuit Judge Moria Krueger of Madison when they
presented their findings to the annual conference of state judges in
late 1984. They received a mixed reception. One judge went so far as to
proclaim: "I don't care what you say - women will always be sex objects
to me!" and was cheered, not entirely jokingly. The State Bar then
launched a campaign of articles and speeches to convince the more
tradition-minded members of the bar that many types of behavior toward
women which were considered normal at the beginning of their careers
simply were not acceptable in the 1980s. Eich warned that there was a
fundamental conflict between qualities traditionally prized by lawyers
and those most valued by women, and that lawyers of both sexes would
have to work hard to develop a workable synthesis:
"The law and its trappings have always had decidedly masculine
characteristics; it is an adversarial system, one that celebrates
intellectual, verbal and strategic combat. It prizes the stereotypical
'male' attributes of competitiveness, strength and rational thinking,
and it often puts the 'female' qualities of negotiation, conciliation
and fairness very much in the minus column." 23
As the 20th century draws to a close there are some encouraging signs
for women lawyers. Large firms, which traditionally provide the most
likely route to wealth and power, have assimilated women at a slightly
higher rate than other employers in recent years. 24 The fact that the income gap is smaller for new
women lawyers than older lawyers suggests that traditional barriers to
the advancement of women lawyers may be eroding somewhat as more and
more women enter the legal work force. The effort to achieve synthesis
between traditional legal values and the new perspective that many women
bring to the law continues today and likely will continue well into the
21st century. 25
Endnotes
1 Ranney, Practicing Law in
20th Century Wisconsin: The Courts and the Bar Grapple With Growth,
70 Wis. Law. 14 (March 1997).
2 Dodge, Evolution of a City
Law Office: Office Flow of Business, 1956 Wis. L. Rev. 35, 40-46
(1956); see also E.D. Langill, Foley & Lardner:
Attorneys at Law 126-37 (Madison, 1992).
3 Dodge, Evolution of a City
Law Office: Office Flow of Business, supra, 1956 Wis. L. Rev. at
41; F. Laurent, The Business of a Trial Court, passim (Madison,
1959).
4 P.S. Habermann, Organized Bar
in Wisconsin 30-32 (Madison, 1986); Membership Growth, 68
Wis. Law. 33 (Nov. 1995); survey of information in
Martindale-Hubbell Law Directory for 1935, 1955, 1975 and
1995.
5 Garrison, A Survey of the
Wisconsin Bar, 10 Wis. L. Rev. 129, 147 (1934).
6 Highlights of Economic Survey
of Wisconsin Lawyers, 35 Wis. B. Bull. 9 (June 1962) [hereinafter
1962 Economic Survey].
7 Garrison, A Survey of the
Wisconsin Bar, supra, 10 Wis. L. Rev. at 153-54; 1962 Economic
Survey, 35 Wis. B. Bull. at 11; Results of Economic
Survey, 49 Wis. B. Bull. 47, 49 (Aug. 1976); State Bar
Membership, 56 Wis. B. Bull. 24, 26 (Nov. 1983); Survey,
61 Wis. B. Bull. 14 (Jan. 1988); Wis. State Bar Newsletter,
Oct. 1993.
8 Hoyt, Changes and Trends in
the Law and Its Practice During the Past Fifty Years, 1963 Wis. L.
Rev. at 173, 177 (1963) [hereinafter Changes and Trends in the
Law] and authorities there cited.
9 Winslow, "President's Annual
Address" (July 1, 1919) in Proceedings of State Bar Ass'n of
Wisconsin for the Years 1919-1921, 71, 80-81 (Madison, 1921);
Winslow, "The Judicial Recall: Is It a Remedy or a Nostrum?," Address to
Kansas Conference on Charities and Correction (Pamphlet, undated, ca.
1914); Winslow, "The Twentieth Century Lawyer," Address to Northwestern
University Law School Alumni Ass'n, (pamphlet, April 25, 1912), all in
Winslow Papers, State Historical Society of Wisconsin.
10 L. 1929, c. 404.
11 204 Wis. 501, 513-14, 236 N.W.
717 (1931).
12 Court Rules, 204 Wis. v-viii
(1931); Wis. Stats. (1931) §§ 260.12, 260.13, 260.39,
260.635.
13 Court Rules, 232 Wis. vi
(1940) and 236 Wis. vi (1941); Wis. Stats. (1941) §§ 269.65,
270.635.
14 Changes and Trends in the
Law, 1963 Wis. L. Rev. at 180, 183.
15 Id. at 189.
16 See Ranney, The
Practice of Law in 19th Century Wisconsin, 67 Wis. Law. 10, 12
(April 1994) (proportion of solo to group practitioners relatively
constant from 1880 to 1935).
17 Survey of information in
Martindale-Hubbell Law Directory for 1935, 1955, 1975 and 1995;
Reisner, How Many Lawyers Can Dance on the Head of a Pin?, 51
Wis. B. Bull. 15, 17 (May 1978).
18 1962 Economic Survey,
supra, 35 Wis. B. Bull. at 9.
19 Mett, The Law Placement
Revolution, 41 Wis. B. Bull. 56 (June 1968); Reisner, How Many
Lawyers Can Dance on the Head of a Pin?, supra, 51 Wis. B. Bull. at
17; Walljasper, "I Quit!" Lawyers Leaving the Practice of Law,
60 Wis. Law. 13 (March 1990); Lawyers Concerned for Lawyers of
Wisconsin, 53 Wis. B. Bull. 34 (June 1980); Schreiner,
Profession Responds to Lawyers' Stress and Job Dissatisfaction,
60 Wis. Law. 17, 55 (March 1990).
20 See Ranney,
Wisconsin Women and the Law Since 1920, 69 Wis. Law. 23 (Feb.
1996).
21 Rentmeester and Jones,
Research Survey Report of the State Bar's Special Committee on the
Participation of Women in the Bar, 60 Wis. B. Bull. 8, 51 (March
1987) [hereinafter Report on Women in the Bar]; Eich,
Balancing the Scales: Gender Bias and Justice in Wisconsin, 60
Wis. B. Bull. 12, 43-44 (July 1987).
22 Report on Women in the
Bar, supra, 60 Wis. B. Bull. at 51, 153-55.
23 Eich, Balancing the
Scales: Gender Bias and Justice in Wisconsin, supra, 60 Wis. B.
Bull. at 14.
24 Survey of information in
Martindale-Hubbell Law Directory for 1975, 1985 and 1995.
25 Report on Women in the
Bar, supra, 60 Wis. B. Bull. at 553; Itkin, The Economics of
Practicing Law, 66 Wis. Law. 10, 13 (Oct. 1993); see Wisconsin
State Journal, March 6, 1994.
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