Wisconsin Civil Procedure: A Short History
Who Makes Wisconsin Laws?

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

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

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.