John Barsness Oral History 10-19-06

Interviewer, Sarah White

MS. WHITE: It is October 19, 2006. My name is Sarah White, and I'm here for the Dane County Bar Association interviewing John Barsness.

ATTORNEY BARSNESS: John G. Barsness.

MS. WHITE: Go ahead and spell your last name for us.

ATTORNEY BARSNESS: B as in "boy," A-R-S as in "sugar," and E-S-S as in "super shyster."

MS. WHITE: You've used that line before, I think. Okay. I have before me a set of interview questions, topics developed by the Bar for the history committee for this project, which is collecting oral histories of lawyers who are advanced in their career, shall we say.

ATTORNEY BARSNESS: Old lawyers is fine.

MS. WHITE: We'll begin at the beginning with pre-law school experience; seems like the wrong title for something that starts with when and where were you born, but the story begins there.

ATTORNEY BARSNESS: I was born in the village of Black Earth, Dane County, Wisconsin, on December 21, 1923. I had one sibling, and my father was 45 years old when I was born, and my mother, who came from a long tradition of teachers, was, I think, 38. There were no other brothers or sisters in my family.

MS. WHITE: And did you say what you father did in life?

ATTORNEY BARSNESS: My father was originally an inventor and a manufacturer. Unfortunately, his inventions involved equipment to install in barns. And in 1929 when The Depression first started, farm income fell so that the business that he was involved went bankrupt. And from that point on, our living was basically mouth-to-mouth. We grew up, although previously in affluent surroundings, during my early youth up through high school, we lived a very, very modest existence and money was very, very scarce.

MS. WHITE: Throughout The Depression, I'm sure.

ATTORNEY BARSNESS: That's correct. We were not the only ones, the whole community of Black Earth, which was comprised at that time of about 400 people, there were very, very few people in the community who were doing anything other than eking out an existence. There were a few people, such as the banker or the one who ran the store, but -- both of whom, out of their charity, also weren't doing that well economically because, in their sympathy for the neighbors and friends in the community, they were extending credit probably beyond what sensibility should have been, but their care and concern resulted in that.

MS. WHITE: Hard times all around, I suppose.

ATTORNEY BARSNESS: That's correct.

MS. WHITE: So what influenced you towards law school? What made you choose law as a career coming from that background?

ATTORNEY BARSNESS: My mother's family, of which there were six, all were teachers at various levels. My mother's grandfather was one of the few in their community, which was a rural farm life, was one of the few who subscribed to a newspaper. And being interested in reading and in education, he influenced his children, as well as my grandfather who became a town chairman, to indicate his degree of sophistication and interest in his fellow man. They all chose to be altruistic in their pursuit of their occupations.

MS. WHITE: So it was the ability to serve others through a law career that appealed to you?

ATTORNEY BARSNESS: That was my thought.

MS. WHITE: What sort of training, education, job experience did you have before law school?

ATTORNEY BARSNESS: A job meant income. we took delivering newspapers; mowing lawns; doing any of those little things that young people could do; splitting wood, I remember, for an elderly lady in town for several seasons. We then earned a small amount of money which we could use as spending money. The big purchase of our lives was the purchase of a bicycle.

MS. WHITE: You and your brother

ATTORNEY BARSNESS: That's correct.

MS. WHITE: A very useful thing to have in the countryside.

ATTORNEY BARSNESS: In those days it was, certainly.

MS. WHITE: Your high school then was in did Black Earth have a high school?

ATTORNEY BARSNESS: Black Earth had a high school. I believe the entire high school was probably a population of the four years of freshman, sophomore, junior, and senior. I think there were some 60 or so in the high school.  Our particular graduating class had more than any previous class. That was comprised of 21 students, most of whom were boys.

MS. WHITE: Did you go directly to college from high school?

ATTORNEY BARSNESS: Yes, I had a scholarship and was able to. I first was going to go to the University of Wisconsin for which I did have a scholarship, but then my brother, who waited a year and graduating from high school before going on to school, decided he wanted to go to St. Olaf College in Northfield, Minnesota. And when we took him there to enroll, I liked the campus and the I liked the experience well enough so that a decision was made that I transferred my first-year college to St. Olaf College.

MS. WHITE: So you actually started at St. Olaf instead of the UW?

ATTORNEY BARSNESS: That's correct.

MS. WHITE: Okay. And went ahead and graduated, etc.?

ATTORNEY BARSNESS: No, I switched from St. Olaf College to the University of Wisconsin primarily because I featured myself as an athlete, and wanted to see if I could become a member of the University of Wisconsin football team, which I attempted to do but I really wasn't good enough in the long run.

MS. WHITE: But it sounds like it was an interest of yours.

ATTORNEY BARSNESS: Well, my theory was that, better to have tried that and failed than to have stayed at St. Olaf and done a good job with athletics and wondering if I ever would have had the proficiency and the talent to become a member of a larger type of athletic program.

MS. WHITE: So did you have law and post-graduate study in mind as an undergraduate?

ATTORNEY BARSNESS: I was influenced to become a lawyer by a freshman English teacher who, on one occasion when we were studying Pope's essay on man, was dealing with the phrase "whatever is - is right," and she asked us to each give a presentation as to what our thoughts were in that regard. And it occurred to me, in reading that phrase, that you could answer that question, as to the propriety of that statement, both ways depending upon the viewpoint from which you viewed the issue.  And so I made two presentations, one pro and one con.

And after that experience the English teacher asked me to come talk to her one time in its regard; and at that interview she said, “Have you ever thought of becoming a lawyer”, and I said “No, I hadn't.” I had previously thought of becoming possibly an architect. And she said, “Well, if you're interested, there's a book called Country Lawyer, which you might be interested in reading”, which I did; and that then was about a small town lawyer working in a community, a small community similar to what I grew up in, and of his experiences. And he was a, appeared to me, a good influence in the welfare of that community.

MS. WHITE: Interesting.

ATTORNEY BARSNESS: So from that point on I had for some reason, my focus then became totally directed towards that objective. And although I spent a couple of years in the military, intervening, that I never ever lost that focus. And it was of interest to me that my own family and those that I talked to really didn't understand the fact that once I had made up my mind that that's what I was going to do, I had mental and psychological blinders, so there was no other alternative but to pursue that course of action.

MS. WHITE: Where did your military service fit in there? Did you finish the undergrad degree?

ATTORNEY BARSNESS: I was at St. Olaf, I went to the University of Wisconsin, and Pearl Harbor Day occurred at St. Olaf. But in the spring then of or in the fall and Christmas of 1942, I then had, by that time, transferred to the University of Wisconsin and I was on the football team. And a group of those of us who then, at that time because of our ages, became eligible for the draft had to do something about possible military career. And the coaches at the University at that time made available to us the Naval Aviation Program. And as I recall, there were five of us who decided that that's the military career that we wanted to pursue, and we were then taken down to Chicago and signed up. And I think it was, if I recall correctly, December 7, 1942, that we were sworn into the Navy Air Corps.

We expected to leave for training within a month or two; however, that didn't happen. And later on I found that there had been what appears to be an arrangement between the recruiters down at Chicago, the commander of which was an ex-football player from Notre Dame, who was familiar with Stuhldreher, and as a result, apparently our enlistments became "lost."

MS. WHITE: Interesting.

ATTORNEY BARSNESS: And with hindsight, they weren't found again until the football season was more than half over in the fall of 1943, when it became apparent that the University of Wisconsin, by a loss of the five of us players, our schedule wouldn't make any difference. So then we were called up. And interestingly, the other two Big Ten teams, of which other players showed up, were also at the bottom of the Big Ten. At least I know the schedule that year: Northwestern was one of them and Indiana was the other one. And as a result, the football players from those three schools all appeared on the scene at the same time, and we went to DePaul University for our initial training. And now that I'm more sophisticated, there's not any doubt in my mind what happened.

MS. WHITE: Yep, that's interesting. There's a whole other story there, I'm sure. So when did you get out of the service?

ATTORNEY BARSNESS: I got out in January of 1946, and immediately then entered the University of Wisconsin in that spring semester which started, I think, just a week or so after I got out.

MS. WHITE: To finish up the undergrad?

ATTORNEY BARSNESS: That was the undergraduate work. And then at that time to enable veterans to accelerate the program, they telescoped some of the courses in undergraduate school are mid-substituted courses in law school from some of the necessary courses in the undergraduate school. And therefore, I telescoped a year about time. And rather than seven years, in effect, to get through undergraduate in law school, it telescoped into a six-year program.

MS. WHITE: Okay. Well, let's spend a little time on that law school experience. So you were at the UW Madison here, what was the law program here like? What did you think of it? What did you think of your professors?

ATTORNEY BARSNESS: It turned out that, unknown to me, I had food allergies which I had been able to cope with previously, but the allergies interfered with the ability to read. And as a result, it's difficult to be successful in law school without being able to read and comprehend. I ran into difficulty as a result, and I ended up then having to take medical treatment to try to solve the problem of food allergies to clear up the ability to think and to read.  So, I went and spent time sort of bumming around in various places during the course of that year. I spent many months out in Fort Collins, I mean -- Boulder, at the University of Colorado, because the fraternity that I was in offered the opportunity to associate with the fellows there. And then I came back home again and then re-entered the Law School in the fall of 1948. And the food allergy problem got under control sufficiently so that I was able to read well enough to at least survive in law school. I didn't do very well scholastically, except that I found it very challenging and I loved to philosophize and just plain think. Thinking is fun to me.

MS. WHITE: It's a bit of a digression, but what was the state of medical knowledge around food allergies at that time? I would think it might have been difficult to get a proper understanding of how to care for yourself.

ATTORNEY BARSNESS: This was really at the forefront of this medical enlightenment. There was a Dr. Randolph down at one of the hospitals on the north side of Chicago who initially discovered that a client of his became completely psychotic when exposed to beet sugar. And she was from Michigan where they had nothing but beet sugar. And it was investigated and they discovered that apparently what happened was the body was such that it made the red blood cells stick together, so that in their attempt to get through the smaller capillaries, which they could observe mechanically in the eyes, it was apparently happening in the brain; and that you then were basically lacking in sufficient oxygen in the brain to make it function right.

When we then recognized that and recognized the allergens to which we were particularly sensitive, in my case it was pork fat and milk, and then by eliminating those from the diet, one was able to cope fairly well with that problem.

MS. WHITE: Very interesting. so back to law school. we've got you back there. Towards the end of your law school experience then, once you had gotten the physical issues under control, what would a typical day be like back in those times?

ATTORNEY BARSNESS: I financed my way through law school by setting pins at a bowling alley. So my day consisted at the end of started at 6:00 and we would set double alleys and finish up maybe 9:30, 10:00; and that, of course, was somewhat physically fatiguing. Go home and go to bed. Get up in the morning and go to law school. And most of the time that I spent was in the law school itself, either in class or in the library, doing and reading and what one had to do in order to process oneself through the law school. It was a rather uneventful career.

MS. WHITE: Did you have a favorite course or professor? Was there any particular relationship like that that stood out for you?

ATTORNEY BARSNESS: I think Law and Society by Willard Hurst, which suited my own thinking, to try to relate law and its effect upon the interaction of human beings and how our culture is influenced by what happens through judicial efforts and understandings.

The other course I liked was Contracts because it was rather specific and also involved what I think is the basis that all lawyers need to look at, the ontology of what is going on in the interrelationships of people and their contingence with each other as to what really should be the basis for determination of what should or shouldn't be or how a case should be finally adjudicated. And it was interesting to me that, in looking back through contract law, you could see how the subjective concepts of fair play, as balanced against cultural practicality, had to be balanced out and how the law basically evolved in a balance between the two.

MS. WHITE: So law school concluded for you with admittance to the Bar. When? Where? How did that happen for you?

ATTORNEY BARSNESS: I finished in 1951, and at that time it was necessary to have practical experience of having actually interned or practiced law with an older attorney. But to accelerate and to accommodate this requirement, a course was developed called, I believe, Practice Methods whereby older lawyers made presentations in law school dealing with the practical nuts and bolts of how do you fill out the necessary forms and the practical day-to-day administration of an application of the law practiced as one would get if one actually were a neophyte in a larger office.

MS. WHITE: Thank you. So rather than you going out on site as an intern somewhere, professors came and talked about the practical things.

ATTORNEY BARSNESS: Yes, that was a course that took most of the summer. And then in the fall, at the late summer and early fall, after the course was completed, we then were eligible to be admitted to the Bar, which then occurred by everybody in the law class who was in that category as I recall there were a couple of dozen or so then got together at the State Supreme Court and also at the Federal Court and were admitted en masse.

MS. WHITE: Were there tests involved then as there is today?

ATTORNEY BARSNESS: No, no tests were required at that time for admission to the Bar. If you graduated from the University of Wisconsin Law School and, if I remember right, the University of Marquette, that you were admitted automatically and given a license to practice law.

MS. WHITE: That's interesting. And there you were licensed to practice. Where did you -- what was the search for that first job like?

ATTORNEY BARSNESS: Well, I'm reminded of a little story: There was a play that was making the rounds just about this time. It had to do with the four military generals and admirals who were stationed in Washington at the time during the war. And they were doing quite well socializing with the young girls because all the eligible, proper-aged guys were gone off to war. So the basic of the play was dealing with those types of relationships and the problems that arose when typically the four services of young good-looking lieutenants or pilots or whatever it is came on the scene and took over the socializing of the girlfriends of these generals and admirals. And the line that stuck with me, because it was sort of indicative of graduating from law school, was that the general was fuming around because he was taking second bids to access to the girlfriends up to the young lieutenants and his great remark was fuming on the stage and says, "Here I am a four-star general and nobody gives a goddamn."

And I think most of us at that time, because lawyers were really a dime a dozen, basically we're in that category. Here we're a University of Wisconsin law graduate and nobody gives a damn. As a result, many of us were actually taking pretty peonistic jobs. I remember that even claims adjusting was one of the aspects of it. We weren't worth anything; we couldn't get any money. The first year I practiced law, I grossed $500 for the entire year; but friends of mine who then went to larger firms who got jobs started out at pretty minimal amounts of money. A friend of mine worked for one of the larger firms in town, and in doing so he encountered a very, very experienced what now is referred to a paralegal secretary, who had been on the job for probably 30, 40 years and probably knew more than the lawyers she was working, for practical matters anyway, but he was having difficulty in getting her to do and type letters for him and so forth. And although he was a nice guy, but sort of precipitated a confrontation that was unpleasant between him and the secretary. So he felt the sensible way to do it was to solve the problem and talk to the head attorney for the firm; and in stating his case, the head attorney for the firm turned to him and said, “Listen young man, good legal secretaries are a hell of a lot harder to come by than young law graduates.” So I think that reflected the status of young law graduates in 1951.

MS. WHITE: I didn't realize it was so tight. I would of thought post-war would have been a boom for all, including your profession. So where was your first lowly $500 a-year job?

ATTORNEY BARSNESS: Well, having grown up in a small community in Black Earth, it was possible to basically hang up a shingle out there. The local bank had talked to me about possibly using one of their offices and then setting up a practice there. Just about the time that that possibility jelled, I heard about an empty office in a two-man law firm Art May and Woodward. So I went and talked to them and they were glad to have that extra office occupied. And the arrangement then that I had with them was that I would set up a branch office at Black Earth and be there a couple of days a week. The rest of the week that I would spend in the office, their offices at what was then the insurance building, which I know now, just this morning I found is now the Johnson Bank building.  It's 119 Monona Avenue or Martin Luther Boulevard.

MS. WHITE: Okay. Let me get the name of that firm from you.

ATTORNEY BARSNESS: Woodward & May. Woodward at that time was a year-old practitioner who was practicing for another four years. Art May was a speaker of the assembly not speaker of the assembly, a clerk of the assembly.

MS. WHITE: That's M-A-Y?

ATTORNEY BARSNESS: M-A-Y.

MS. WHITE: Okay.

ATTORNEY BARSNESS: The arrangement was is that what, if any, work they had that they could spin off, I would get one-third of any fee that was generated and they would keep the balance; and any work that was generated by my own clients coming to me directly, I would get the reverse. I would get the two-thirds of the fee; they would get one-third of the fee. But that first year I generated a gross $500.

MS. WHITE: It seems they trusted you quite a bit not to have worked with you before sending you off to open a branch office in a way. It means they thought highly of you it would appear to me. Tell me more about the sort of practice that it was.

ATTORNEY BARSNESS: Well, let me answer your other question because it's interesting. It probably in those days, this was 1951 -- word of mouth and personal reputation was easy to assess because the people were open about their acquaintanceships and what they knew about you. And I think I had a reasonable reputation for integrity. And as a result, that concern that you addressed there really wasn't a problem, wasn't a concern because it was easy to solve. If I'd been other than what I was which most of the law graduates were decent guys it would have surfaced and they would of said hey.

They would have made two, three telephone calls. In fact, they called the president of the bank of Black Earth and said, “What kind of guy is this.” They would have solved the problem in a hurry. So those were the days when now they can't do it because if you picked up the phone and called their guy at the bank at Black Earth, he would say, “Well, who are you”; and “I really can't give you that information.” That's a total change in culture.  So basically that's the answer to your question.

MS. WHITE: Yeah. Interesting to realize that. Are there names that come to mind of lawyers you admired or people who were practicing or were helpful to you?  What was the community of law like that you found yourself in?

ATTORNEY BARSNESS: Well, what my first task was, through Woodward & May, they had a subrogation referrals. By that I mean if there was a small automobile accident, a fender bender, and the insurance company which carried the insurance on the owner of the vehicle had to pay off on the collision coverage, that then meant, in those days, a fender bender, a big one would be maybe $1,500 to $2,000. But small claims court in those days were a jurisdictional limit of $500; and so any claim less than $500 was passed along to me. And I had gotten a lot of experience then initially in the preparation and processing of trials as to how you persuade, usually it was the judge; juries were not used -- as to what result should come about as a result of the situation that occurred. In the course of doing that, I ran across an attorney probably two or three times my age -- he was probably in those days in his 40s or 50s -- in the prime of his career. But he was one of the highly talented lawyers, I mean, trial lawyers in town. And I crossed paths with him in the course of one these small accidents. And apparently, he thought that I had some talent as a trial lawyer, and so he pulled me aside one time and told me to come into his office. I went in and we discussed lawyering and all that stuff. But the most interesting and important thing that suited my thinking at the time was that he said it was his experience that all legal controversies can be and he didn't use this word [undecipherable] but if you want to [undecipherable] look at it and if you think about them long enough, it would distill themselves down to a basic fundamental issue.

One of the stories attributed to Abraham Lincoln, which demonstrates the point, was that he was hired to, I guess, represent the railroad company which was fighting with the steam -- I mean, the steamboat ships going up and down the Mississippi. And he was quoted as saying is that the real issue here is whether it's more important to go back and forth across the river rather than up and down.

Now that's the point I think that Beckwith was making is that controversies can be distilled down to basically a fundamental issue which ought to be related to the relationship and the decency and the fairness between human beings. And that's what we're getting away from and it should be.

MS. WHITE: What a marvelous career you've had then. So Beckwith was the name?

ATTORNEY BARSNESS: David Beckwith. He had a son who went to law school sometime after I did. And the son then decided to practice law in one of the big law firms in Milwaukee. And so Dave then continued basically as a sole practitioner. He had a fellow with him by the name of John Herrington, but the two of them maintained their offices until John Herrington retired, and I think Dave Beckwith died. But he was the -- because he had decency and honesty and integrity and he had, to me -- the aspect of trying to analyze and philosophize as to what really is going on when people are in contention with each other.

MS. WHITE: That's interesting. Very helpful to you at that stage.

ATTORNEY BARSNESS: It was.

MS. WHITE: Your first case or near the beginning. What do recall? Anyone stand out? And did you win or lose?

ATTORNEY BARSNESS: I don't recall the first case that I had. One of the early cases that I had which was very interesting with a collateral story, and which indicates why a general practice is basically an awful lot more fun than a specialized practice, is that a gentleman in Black Earth, who had two boys, all of sudden he disappeared. He had been running a small electrical contracting business and basically can be described as a pillar in the community. His wife was a teacher and the boys were, I think, were eight and nine, something like that. And so it was a great puzzle as to why he should up and disappear. I was contacted by the wife, and we made effort to try to chase him down. And through various resources we were able to do so and we found him down in Searcy, Arkansas. He had left his automobile, I think, at the bus and taken the bus, I think, the best we know to Chicago. And why he went to Searcy I never ever come to find out. But we found him at Searcy, and I went down there to talk to him, and I thought discretion would be wise before I actually confronted him because I did not know what his circumstances was. And the more I knew then, of course, I thought the better it would be about him and what he was doing and so forth because, for all I knew, if I went up to his front door and said, “Hey, Don, here I am, what's cooking”, he may well have, you know, left again. So in the process of trying to learn about him, Searcy was a community, I think, of about 2,000 -- 3,000 people.

MS. WHITE: Spell that name.

ATTORNEY BARSNESS: S-E-A-R-C-Y. I think that's it. You might want to check it. This was in 1952 or '53, somewhere early '50s anyway. It was in the heart of the Deep South. And this story probably may startle you, but it reflects the reality of what was going on in those days which were relatively recent, 50 years ago. And the process of finding about him entailed going to the -- because Searcy was the county seat, and I went to the District Attorney to talk to him to find out how he might be of assistance to me. I told him my story. He was very helpful basically. But in the course of talking to him, he related a story to me that he was a young graduate from law school, about a peer of mine graduating the same way, and I can't remember why, maybe it was because he had met and was interested in a girlfriend or something, but he had come to Searcy. And there was a vacuum then of lawyers and so forth, so he became the County Attorney. And it was a pretty unpopulated county. And he said the most troublesome case that he had up to that point, having been there only a year, couple years, was that on one occasion there was a homicide and that there was a black citizen in the community who walked up to the front door was living in his house with his wife and his family, and a kin of a white girl who had felt offended by him and, apparently, the encounter was simply very, very innocuous, like saying how are you or maybe bumped into her in the grocery store or something like that anyway. But the kin then went up to the front door and asked him to come to the door and pulled out a gun and shot him dead. And the District Attorney then, of course, was charged with the problem; and he said he discovered very quickly there was absolutely nothing that he could do about that. He said I just had to tell the black family that, “Sorry, that's just the way life is.” Because it was a company-owned town. There were one or two families that owned the town, and the guy who did the shooting was one of the town members and so shot him dead. But that sort of startled me because, growing up in a community that I did, but I came to a realization that we weren't as civilized in this country at that point that we were. And it helped when the black people started revolting down South.

MS. WHITE: That was the kind of community he lived in. Let me stop you there and turn the tape over.

ATTORNEY BARSNESS: But that was the end, basically the end of the story of Searcy. It turned out of interest was that the gentleman, whose first name was Don, had gone to Searcy and, apparently, quickly met either a divorced or widowed gal about the same age as his wife who had two boys exactly duplicates of the sons that he had. I talked with the wife and she said he was a wonderful man and he basically took over as father of the two boys. He did electrical work; and every time he went somewhere, when it was convenient he took the two boys along. And he duplicated the lifestyle that he had been pursuing in Black Earth. And it was almost like he transported himself from one familial situation to another. But it turned out that then after talking with him and then his wife got in touch with him and I don't know who else talked to him, but he then voluntarily returned to Black Earth and took up where he left off and lived and he died only a few years ago. He eventually, well, a small electrical shop and business in Black Earth wasn't that profitable, so he in a few years he left that and went to Madison and took a job and, I think, he ended up as head maintenance man up here in some big building for the county someplace.

MS. WHITE: How strange, now what kind of legal case was it?

ATTORNEY BARSNESS: Well, as you can see, basically there wasn't much law that was involved other than it was necessary to appoint a referee to stand in his stead to conduct his business affairs, his bank account. And an interesting anecdote that arose out of it, now that it comes to mind, was that he was a sportsman and had a very valuable gun of some sort; and his wife knew about it, and it had some value; and so in inventorying his assets for the referee inventory -- and that was the legal aspect of it wondered what about the gun, why couldn't they find it. And it was known that he had loaned it to another gentleman in Black Earth occasionally, and so this gentleman was approached and of course, “Oh no, I gave that gun back to him.” One of the interesting little stories then was that when Don returned to Black Earth, he went looking for their gun; and he said, “Did so-and-so ever bring that back again.” So, so-and-so had the gun and, of course, had to surrender it. But it was an aspect of human nature that you run across practicing law and basically I made reference to this book about The Country Lawyer, and those are the little anecdotes that that book reflected which then duplicated itself in various little incidences that occurred while I was practicing law in Black Earth the first, oh, 10, 15, 20 years.

MS. WHITE: So I think I want to wrap this interview with this section and come back to your career evolution next time, but just to sort of come to closure on this.

ATTORNEY BARSNESS: I'm telling you more than you want to know.

MS. WHITE: Oh, no. So you were practicing in Black Earth, having the "country lawyer" experience a couple of days a week and then in, you know, Madison, comparatively larger capital of the state and so forth. Was this like two different worlds, or were they similar?

ATTORNEY BARSNESS: Not in those days, but gradually it evolved into what you might describe it at that way. And an interesting fact was that after about 25 years, and gradually I built a practice in Madison so I was spending less time going to Black Earth, but the real point of change between Black Earth in practice and Madison practice was when it got to be a local telephone call between Black Earth and Madison. And strangely, I noticed that once it became a local call, the Black Earth office really became a redundancy because people then would be calling on the telephone and transacting Black Earth business through the telephone and then would coordinate other activities in Madison with an appointment at the office. So that the extension of the telephone system to a local call interestingly had that social dynamic to it, and it changed it. And I think the same dynamic is going now with the, you know, on a vastly greater scale, on an international level because of computers.

MS. WHITE: That's interesting. I mean the expense of a long-distance call must have been great.

ATTORNEY BARSNESS: Well, what you would recognize, I think, is that as growing up as a kid, particularly because we were really in dire economic straits, that we had cousins in Madison, and my mother had a sister and my dad had brothers, but a telephone call to Madison was, maybe you might do it once a year, was an enormously big deal, and it would be done only under the most dire of circumstances, maybe somebody died and you'd have to call. But to call just to say, “How are you”, that just didn't happen. And that culture then, I suppose, carried over and calling a lawyer in Madison would be too expensive, so particularly if he's going to appear on Monday nights or Fridays at Black Earth and they would avoid the expense of a telephone call and talk to him then.

MS. WHITE: Was it really so very expensive or was it more the culture around

ATTORNEYBARSNESS: well, if it cost 25 cents to call Madison for three minutes, and you could buy a loaf of bread for 5 cents; in fact, you could for 25 cents feed your family for a day.

MS. WHITE: That's what I'm looking to understand. Thank you.

ATTORNEY BARSNESS: It would be difficult, I think, in your experience to comprehend that.

MS. WHITE: That's exactly why these interviews are important, I think.

ATTORNEY BARSNESS: To see the relativity of it, yeah. And that culture carried through, you see, and once it became less and less of that income differential, the psychology involved would still be part of the conditioned response that people would have. You may have heard, and this is maybe something you can put into your noodle, was that one of the psychological phenomenon that was discovered after the war was that veterans, particularly those who served overseas, would react very anxiously and particularly if the telephone rang and said, “It's for you.” They would have an anxiety attack, many of them, because going for, some of them, several years not having any call to a telephone except tha, “Hey, Charlie, you're wanted on the phone” and you get to the phone and say, “Hey, your mom just died.” That became an interesting and I think the same condition, the psychological response.

MS. WHITE: Yes, yes. One of the many ways our world has changed. Does that feel like a good place to close this conversation?

ATTORNEY BARSNESS: sure, sure.

MS. WHITE: Okay. Thank you.

MS. WHITE: Today is October 27, 2006, and I'm in the office with John Barsness, and we are continuing our conversation about law school experience. So far on this tape we've talked about first job as a lawyer and some pre-experience up into the -- something in May. What was the firm that you started with?

ATTORNEY BARSNESS: Woodward.

MS. WHITE: Woodward and May.

ATTORNEY BARSNESS: And May.

MS. WHITE: Yes. Okay. And we sort of finished with the transition from keeping an office in Black Earth to doing more business in Madison when Middleton, Black Earth, so on became local telephone call. Interesting social history, intersecting the story of the legal career here.

So now we're going to talk about the evolution of your career from that point forward. How long did you stay with Woodward and May?

ATTORNEY BARSNESS: Eight years, because it was in 1959 that a gentleman by the name of Ostby and I got together. Not that it's particularly relevant, I like to kid with my ethnic peers by contending that we are professional Norwegians by having a couple of organizations which are limited in membership to those who have that ethnic heritage. But Byron was in that group, and he and I became acquainted. We were in law school together, but we hadn't become particularly good friends. And he was primarily a lobbyist, and he and I then shared an office space as Ostby and Barsness.

MS. WHITE: Can you spell that name for me.

ATTORNEY BARSNESS: O-S-T-B-Y. And that, I think, endured for four or five years; and being a lobbyist, he was invited to become the head of the Railroad Association and that was a full-time job; and we amicably terminated the partnership, and he then moved over to what is the now the Anchor building and I remained in this building.

MS. WHITE: Were your offices here in the Tenney building then?

ATTORNEY BARSNESS: Correct.

MS. WHITE: For heaven's sake.

ATTORNEY BARSNESS: We were then on the sixth floor. And from 1959 until current time, I've been in this building, in three different suites but the same building.

MS. WHITE: You had other partners over the years?

ATTORNEY BARSNESS: A little while later a fellow by the name of Arthur Kiser.

MS. WHITE: Spell it.

ATTORNEY BARSNESS: K-I-S-E-R. Art Kiser.

MS. WHITE: That's an unusual spelling.

ATTORNEY BARSNESS: He and I then were partners for several years; and after that, we amicably split our joint partnership. And then I've been since then alone with an office of my own with sometimes up to three other lawyers as employees. And currently I have one other lawyer that I'm working with at the moment, but it's been a sole proprietorship from the time that Mr. Kiser and I amicably parted ways.

MS. WHITE: This is interesting to me because I've been in business with a partner and had to buy out her share of the business and so forth, so I'd be interested to hear you talk about your experience, you know, in partnership versus as a sole owner with the others being your employees.

ATTORNEY BARSNESS: It's a -- in a partnership, it's of value to have a companion in some way who has mutual self-interests as your own, so you can share problems; and facetiously, it's somewhat easier on Friday afternoons, when everybody's got to be paid, you've got somebody else to help out, but you miss that if you're on your own. But the sole practitioner, having a sole practice of your own, enables you to be a lot more freelancing. And I like the aspect of being solely responsible for what happens.

And I guess all my life I've been a loner, for whatever reason that's caused by, I don't know, but I had fellows working for me and had been on the lookout for somebody who had my own philosophies and would want to join with me in establishing a larger firm. And there were two fellows for whom that may have been a possibility, but one of the them was in the Air National Guard, and he was flying aircraft and had a crash out at Truax and stepped onto the wing and apparently he had never been trained to, if you're in an aircraft fire with gasoline, to hold your breath because you can do so for a minute or two minutes very easily, and you can do an awful lot within that period of time. But one of the other pilots who was with him, and there was just two of them, got out of the aircraft and apparently understood that it was a gasoline fire that attended the crash. And it ran out off the end of the runway, so there wasn't an awful lot of material damage to the aircraft, but the gasoline tanks were ruptured and exploded, but the other pilot said that he yelled for Dave to get out, and Dave did and got out and was standing on the wing for a few seconds and so forth; and it looked like he would be capable of jumping off the wing and walking away, as the other pilot did, but he said all of a sudden he just caved over. So the only rational thing is that it's likely he forgot and took a deep breath and took hot gasoline fumes into his lungs and my understanding is that this is a very quick death. And to digress a moment, it always bothered me about people being burned at the stake, and thinking that that would be a pretty agonizing death, but with the training information that I've learned, apparently, once the lungs get seared, there is an immediate unconsciousness and that's the end of it.

Ms. WHITE: What a tragic story.

ATTORNEY BARSNESS: But the other one, he was also independently minded, and he then took the deal, “Well, Barsness if you can establish a practice on your own and make it go, then I can too.” And so he then moved to a place up around Wisconsin Rapids and opened up an office and then practiced for several years until he suddenly died, I forget, of a heart or something like that.

MS. WHITE: That's interesting, the independence. That's a theme then.

ATTORNEY BARSNESS: So that has been, I suppose, it's an asset and also a great liability.

MS. WHITE: Yes, I understand. Tell me about the kind of casework that you were doing then. You said that you were really had a general practice.

ATTORNEY BARSNESS: Yes, pretty much a general practice, which appealed to me because of the various challenges which would not be very routine. A friend of mine who became an insurance defense lawyer, who I have and still maintain contact with, Bill Clark up in Ashland, did defense work for many years; and he reported that it finally was nice to be sort of a master of his practice and know exactly what to do and always be comfortable, that he really wasn't making any serious mistakes, but he said that eventually it got boring because he said he'd finish up a case and go home and celebrate over the weekend or commiserate with your wife or boss and then on Monday morning it's the same damn thing all over again. And with the general practice, this is not the case. You never know from one day to the next what kind of a challenge you'll be faced with. I recall in law school they had older attorneys talking to the lawyers, and one of the lecturers came up with the viewpoint of the general practice and that he said.”You never know from one day to the next whether you'll be in Timbuktu or whether you'll be doing the same thing you did the day before”; and he said, “That particular changes -- you didn't get bored”, and my friend did get bored.

MS. WHITE: I think one of the most significant aspects of work is whether it holds your interest or leaves you with that general sense of boredom, and it's a lucky person who can find work that is continually interesting.

ATTORNEY BARSNESS: Yes, and that is certainly true.

MS. WHITE: So let's talk about the interesting, unusual cases that came your way.

ATTORNEY BARSNESS: Probably the most interesting, from a success standpoint, was a lady had gone to a local department store and on sale were a bunch of shoes that were fastened together by plastic thongs of some sort. So it was next to impossible to separate the shoes. The shoes were adjoined so they could be apart only a few inches. And she tried on a pair that were appealing to her and put both shoes on, and as a result of being her feet being basically manacled together, fell over and broke her hip rather seriously.

MS. WHITE: Goodness.

ATTORNEY BARSNESS: And the issue was whether or not there was negligence involved on the part of the store.

MS. WHITE: Do you recall what store it was?

ATTORNEY BARSNESS: It was one of the local department stores and that was when we had more local department stores. This was probably about thirty years ago. And we succeeded in persuading the jury that this was true, to the astonishment of the judge and the defense attorneys. And that relates to what I indicated before is that there is a key point or key consideration in most fact situations which will determine the ultimate outcome. And this, I felt, that it was true that, for whatever reasons, that no woman would ever buy a pair of shoes without trying both on at the same time. What's your reaction? Would you?

MS. WHITE: I would have to agree.

ATTORNEY BARSNESS: And then it naturally followed that the store would have been aware of this particular fact; and so, by tying the shoes together and making them impossible to take apart, then they basically invited her to enter into a dangerous situation. And the negligence on the part of the store, of course, there was foreseeability, but the negligence on the part of the store was to not provide a scissors or a knife by which the shoes could be taken apart and warrant a scissors to cut the thong or a stool to sit on. And when the jury granted 80 percent negligence against the store and 20 percent against her. And at the time I was laughed at for bringing the case in the first place, but I was convinced that women don't put shoes on -- I mean don't buy a pair of shoes without trying them on together.

MS. WHITE: Well, this goes back somewhat to what you were saying at the overall philosophy of law about a client who wants to escape the consequences of actions.

ATTORNEY BARSNESS: And so in this case she wanted to escape the consequences of foolishly putting on the shoes together at the same time; however, as in negligence situations, it's balanced off against other considerations, and that is that the store had an interest in trying to sell these shoes and they had a profit objective and really she didn't have nearly as much motivation to enter into that circumstance as did the store. And the store would operate to its economic advantage and there wasn't any advantage to her other than getting a pair of shoes which she wouldn't necessarily need but, you know, people have to have shoes, but you weigh off the needing shoes, for probably part analogy reasons, against a store creating a hazard for people to promote themselves, because the reason for tying them together, obviously, was that it would be inconvenient for the store to match them back up again at the end of the day. So they had a selfish reason to expose, but that was just the analysis of the case. As it turned out, it was right.

MS. WHITE: Well, that's interesting. Very interesting. Now I want to follow what you said that you were laughed at. Tell me about the community of law. How do you experience the feedback of your peers? Are you in clubs? At rotary meetings?

ATTORNEY BARSNESS: Well, there are groups of lawyers that meet, somewhat periodically or occasionally, to discuss mutual problems in a given particular area. The one group that I was in for many years, that meeting every Thursday at noon, was a real estate lawyers' group, who then met to discuss title problems. One of the problems in purchasing a real estate is that a piece of real estate may carry with it blatant problems of liability for a simple thing, of course, which I think most people are familiar with is that there's a mortgage against the property. And if you buy the real estate, under the law as it exist, the buyer is always responsible for what is in the public record, so that he can't buy a piece of property which has a mortgage on it and then argue, gee, I didn't know about it, because there's constructive notice of those in the paper. Now, obviously, mortgages are very simple and easy to comprehend, but you end up with some rather complex situations. Suppose that there's a property out in the woods and in order to access it you have to cross other people's property.

MS. WHITE: And that's fairly common.

ATTORNEY BARSNESS: So that it could be that a knowledgeable person buying the property never occurred to him that he may have problems accessing it, so that you then end up with a let's hypothesize that the person buying it had no trouble walking into the property and out and nobody restricted it; and in that situation, there might or might not be an established right under certain conditions where they have access easement to it. These are the kinds of problems that are not self-evident, and occasionally we end up to pretty close issues as to whether it's more important to go up and down the Mississippi or back and forth across. And this group then would establish, I mean, we'd discuss this to be helpful. And those were the days when property transfers were -- mostly involved a so-called abstract, which was a list of all of the documents that would pertain to that particular parcel of land which were in the public records; and so your responsibility in representing a buyer was to examine that document and determine whether or not it was safe to buy it and whether it would be clear. And because there would be sometimes difficult issues involved, whether or not the attorney representing the buyer is getting too nitpicking, which was a phrase that was used about what could or could not be a problem on the title, and so this group was partly an attempt to help determine whether the examining attorney was being too concerned about remote possibilities as problems. And that was the group and it was very amicable, a bunch of guys. The reason and justification for the group now is no longer existent because a phenomenon arose whereby companies would sell insurance so that you then get, what you probably are familiar with, title insurance. So that when you buy a piece of property, an insurance company tells you we have looked at it and for the premium we guarantee you that you don't have to worry about a problem.

I don't know whether previously I brought up a little cartoon about a beautiful, lovely house in a nice setting; and a young couple, who obviously were the owners of the house, talking to some other person and there was a railroad track and a tunnel running right through the house. And the caption was "And then we found out what the word 'easement' meant." And that was one of the metaphorical representations of what might or might not happen.

MS. WHITE: Was Real Estate Law a fair part of what you were doing then? I know you didn't specialize in any one kind of law.

ATTORNEY BARSNESS: I would say about one-third of my work was at Woodward & May. Woodward & May did a lot of property work and that was a lot of plaintiffs work was in the real estate realm. But one interesting phenomena is that gradually insurance took over and the reason, I think, that insurance companies were willing to get into the game was that over the decades, because lawyers were looking into chains of title and remedying any possible problems, blatant problems or defects, it became feasible for an insurance company to say, okay, for a premium I'll guarantee it's okay, knowing pretty well that it would be okay. And one of the fun things, towards the end of the career of this real estate group, was that one of the representatives of the insurance company appeared, or he was a regular member, but he was laughing about the fact was that, “Any of you guys have a real problem that we can insure because we want to have somebody make a claim because over the last year no claims have been filed, and we're afraid that the insurance commission will take the view that the premiums are too high because you aren't subjecting yourself to any risk.” And it sort of worked that way because they wouldn't issue the title policy if there were a problem until it was cured. So actually they were insuring the fact that the seller would not change the color of his eyes on you after you bought the property.

MS. WHITE: That interesting. That's interesting. That seems like an answer to one of the questions that's on the list. And I'm going to read the question and see if you had any thoughts on that. What were the most significant changes within the current social context, the substance of law that affected your particular practice? Now that's a wordy question.

ATTORNEY BARSNESS: No, I think that the evolvement --

MS. WHITE: The insurance.

ATTORNEY BARSNESS: -- of substituting insurance for guaranteeing the safety of a piece of real estate against possible liens that were not correctly handled previously. And that has completely changed the legal profession in the area of real estate work. And I would suppose that the percentage it used to be, I would suppose that unless somebody was very unknowledgeable, 95 percent of real estate transactions involved an attorney. Now, I would estimate, I haven't seen any statistics, but I would estimate it's completely reversed. It's at probably no more than 5 percent real estate transactions involving an attorney, either for a buyer or seller.

MS. WHITE: That is a major change. If real estate was about a third of your practice and the other two-thirds, were there other similar evolutions?

ATTORNEY BARSNESS: Oh, what you might call 20 percent family law, 20 percent was transfers of property upon death, probate work; and the other would be litigation, which could or could not end up as a trial, a bona fide trial with a jury.

MS. WHITE: That would be defense work?

ATTORNEY BARSNESS: No, plaintiffs work.

MS. WHITE: Plaintiffs work.

ATTORNEY BARSNESS: As you may or may not be aware is that pretty much the Bar divides into, as least in the areas of litigation and even outside, attorneys who do more either plaintiffs work or do more defense work. So that you're either on one side or the other. And pretty generally you can say that the Bar breaks down into defense lawyers and plaintiffs lawyers, with the exception of the area where you are really a glorified clerk. You are truly an attorney doing for people something which they don't have the time or the expertise to read the necessary rules and regulations, so they read it for you. But that's not an area that's has ever been of particular interest to me because it's simply doing reading and interpreting for somebody what you read. I like the aspect of the law where you actually interfaced with contending interests to try to get the result.

MS. WHITE: How did you happen to go towards the plaintiff work as opposed to defense?

ATTORNEY BARSNESS: I hate to say it because it sort of -- but I grew up and I think within my nature is basic altruism; and I grew up in a very Christian home and I spent an awful lot of time trying to figure out the purpose to life. And it's my conviction that one should, for whatever reasons, be more concerned with the benefit of somebody else than one's self. And doing plaintiffs work, I think you're in a position to take on the difficulties and problems that people -- sometimes you don't even get paid for it but at least you're doing something to be of value to them. And doing defense work, which is valid work, but you're guaranteed that you're going to get paid because usually the defense involves an entity that has money that somebody wanting to get, like an insurance company, and of course, they've got the money to pay you. So I would suppose that those lawyers who are pretty much plaintiffs lawyers are fundamentally altruists as against those who are practicing law as an occupation.

MS. WHITE: Okay. I had a feeling you could provide thoughts on that. We're almost to the end of this tape, so I want to think of a question that has a short answer and then I'll change the tape and go on. But think about those areas that you mentioned -- family law, probate, litigation -- were there other social changes that really fundamentally changed how the law was practiced in those areas?

ATTORNEY BARSNESS: well, in the area of Family Law, the changes in the basic concepts of a no-fault divorce, for example, made a great change. And Probate, there was a very dramatic change when they switched from a percentage fee basis for the work that you did to a hourly basis that has had a very, very dramatic effect on the transfer of property at that -- very adverse to the small people. I could elaborate on that because I feel strongly about it.

The big change in the Probate Law was the change from a percentage basis to determine fees to an hourly basis. And I think that came about by well-intentioned do-gooders who really didn't understand what was going on. Young lawyers starting out would see that if an estate was very large and there was a percentage determination of fee that the fee would be enormous. And for the younger lawyers, they hadn't acquired the acquaintanceships and the reputation so that they then would be involved with death transfers with relatively small amounts of money involved. The fees were then therefore quite small and sometimes really didn't pay for the amount of work that was involved to get from the death of the individual to finally resolving all the tax problems and the transfer problems and so forth.

There was a young lawyer who came from modest circumstances who eventually became a judge, and he became a judge because he was advocating a view which had been propounded by some others, that the fees in the estate were -- should be determined on the basis on the time that was expended rather than the amount of assets in the estate. And it was propounded at the time that was the difference between the Robin Hood Theory and the Plumber's Theory, because the Robin Hood Theory was a percentage basis where the large estates then would entail a very large fee which would enable the legal profession then to do the work necessary on a small estate to accomplish the results that you want. What the community that we're trying to promote, the Plumber Theory, charging on a hourly basis, didn't understand was that there would be considerable support for the elimination of the Robin Hood Theory by the very people who could control society -- the community, what went on, the newspapers and so forth because all of the them then, most of them, had large estates. And if it were put on a percentage basis, they then -- I mean, if it were put on an hourly basis, they would be paying considerably less in fees than would be the case if they had a percentage basis. Now that meant, to be fair, you had to use the same procedure on both big estates and small estates. And because of the nature of the law, it is often the case that the amount of legal work involved, although it bears some relationship, doesn't bear a true and variable relationship to the amount of money on the table; therefore, in a small estate you might get the very serious problems involving enormous amounts of time required to resolve the problems. And if you charge on a per-hour basis, then sometimes the amount of time that it would take to resolve the problem, if you paid the total fee on a per-hour basis would exceed the economic practicality of what you're doing. And the ones who were advocating this change were not people coming out of modest circumstances, I mean lawyers, and not realizing that this would be the long-term effect of it. And of course, the people with the large estates, and in this particular instance, locally was one of the newspaper persons, and so he and a spouse then promoted the view of this one lawyer and helped him get to be a probate judge. And so that he was one of the focal points about which this change eventually came about.

MS. WHITE: Should I ask you the name of that judge?

ATTORNEY BARSNESS: I would prefer not to.

MS. WHITE: Okay.

ATTORNEY BARSNESS: Most lawyers would know who I'm talking about. But also there's another prominent lawyer, who was a do-gooder type of person, who's gotten into the judicial system. She was helping to promote the idea as well, only her tangent was in another area that I'll mention in a minute. But what had happened is that the small estates are having to pay a much larger, on the average, percentage than the big estates. And the basic theory is that somebody who is a Rockefeller, why not have him subsidize John Smith, who is a modest person, who has a very difficult problem in transferring assets after death. So that's one of the enormous changes that took place in the probate system.

And now the other area, whether it's been a dramatic change, a really dramatic change, and it's operated enormously to the adverse interests, from a professional standpoint, is the permission of advertising for professional people, doctors are doing, dentists are doing what, I think, the legal profession started first. And the original idea by do-gooders was that, well, gee, somebody out of law school, he ought to allow himself to be known, and so they allowed him to advertise. The reason in the world of practicality that it doesn't work is that the little guy doesn't have enough money to buy a full page in the telephone book or the newspaper, but the big firms who really don't need to advertise, they are the ones who have the money to advertise. And once you get into the race, then in order to maintain your profile, you are almost required to advertise just because everybody else is doing it. And I don't believe that the number of people who walk into a law office are very great whose decision to go to this office or the other office is influenced by what they read in the yellow pages or the telephone book.

MS. WHITE: That is interesting. I hadn't thought about that.

ATTORNEY BARSNESS: And it had a very, very detrimental effect to professionalism because it has now gotten so bad that, in my own instance, a few years ago, my wife had a fender-bender accident and, apparently, there are those formerly known as “ambulance chasers” who then are screening the police reports and have form letters and send them out as a matter of routine to people who are involved in accidents suggesting that they can do all kinds of wonderful things for them. And what has always occurred to me is that the only advertising that should be permitted, which excludes itself, is that this is an office that does not need to advertise, because if you are proficient in your profession, word of mouth and success of what you do should be the means by which you advertise. And just because you're the new kid on the block out of law school, you don't have a reputation yet and it's your responsibility to establish it. And you do that by actually hands-on effort rather than a phony proclamation in the telephone book that you are probably the best lawyer that's ever come along out of law school. That's wrong, because it damages the profession of the law and also it's created much more competition among lawyers themselves. It reduced professionalism among lawyers. To me, that is probably the worst thing I've seen that has happened in my career as a lawyer.

It's done more damage to the law and professionalism than any other thing.

MS. WHITE: That's very interesting to hear. And as I complete other of these interviews, I'll be interested to see if this theme comes up for other people after you. That's very interesting. I'm going to move the topic a little bit now to peers and mentors and colleagues. What lawyers, judges, professors were of particular help to you in improving your ability to practice law? Now I'm talking post-law school, but who mentored you, who helped you improve?

ATTORNEY BARSNESS: The one man that I had mentioned was David Beckwith, who was a criminal trial lawyer. And I crossed paths with him on a minor case, and he was interested enough being a mentor and felt that I could understand what he was talking about. And then the Bar itself has created services where those lawyers who are more experienced in a particular area are willing to have their name listed, so that if somebody has a question they could pick up the phone and say what do you think. That's a very, very good program.

MS. WHITE: And you've taken advantage of that?

ATTORNEY BARSNESS: Occasionally, yeah.

MS. WHITE: So you would encourage the bar to continue that

ATTORNEY BARSNESS: Oh, yeah, without question.

MS. WHITE: -- and increase that program. Is it difficult to get people to put their name forward to take those phone calls, do you think?

ATTORNEY BARSNESS: I don't think so because I think there are a awful lot of guys who went to law school for the reasons that I did and that is if we could be of value to the community and hopefully the community's a little bit better off because we're in it than otherwise. I think an awful lot of lawyers go to law school with that view in mind, but very quickly become disillusioned because of the effort to convert law into a business where you make money rather than serve the best interest of people at your own expense as a lawyer.

MS. WHITE: That does sort of come up as theme in our conversation, doesn't it, all that about the advertising and about the business of law versus the

ATTORNEY BARSNESS: Well, I think the same thing is in both the other two professions as well, where we have evolved as a society where the viewpoint is that if you have a degree of some sort, that that has value and that becomes an end in and of itself as if here I am a four-star general and I should be recognized for that rather than here I am a person living in society and I would like to make my fellow man better off than I am. I think we could divide all of the community into people two ways. You wouldn't be here if you were a selfish person, would you?

MS. WHITE: Ah, there would have to be more money in it. No, but that's interesting. That's interesting. In terms of mentors and influences now, have you ever volunteered your name to the Bar for expertise in that role yourself?

ATTORNEY BARSNESS: Yes, I have, but I haven't attained sufficient reputation. Others have asked me questions occasionally, but it's not as if you were a premier attorney.

MS. WHITE: It's the general versus specialist thing.

ATTORNEY BARSNESS: Yeah. I would think that the ones that you seek consultation with are the ones who have actually specialized in a particular area and that tends to be not general practitioners but those fellows in larger law firms where they are specialized in a particular area.

MS. WHITE: That makes sense now that I think about it. Before we leave the topic of lawyers helping lawyers and whatever, where you member of any professional organizations?

ATTORNEY BARSNESS: Well, the usual Dane County and State of Wisconsin Bar Associations. And for a while I was a member of the American Bar Association, but

I dropped that because it wasn't --

MS. WHITE: I didn't realize there were associations at all those different levels.

ATTORNEY BARSNESS: Well, it's the Dane County and the State Bar that have a value because one of the things that is evolved during my career is that I think the law schools have been reaching out and also been attempting to have seminars by those attorneys who are specialized in a particular area. And there would be a meeting at which you can attend the lectures, they hand out materials for you to look at and study. And this has been, I think, nurtured by the Bar Association itself. And I think it's been a very successful program.

MS. WHITE: Yes, excellent. I want to get back to the work you were doing here and ask what do you consider your most significant case, either the best, or worst, or simply its role in your career, in your opinion, to be. What was your most significant case and why?

ATTORNEY BARSNESS: There was a circumstance where the issue arose whether or not, in bankruptcy proceedings, the prevailing party would be a bank or an institution of significant economic capacities as against the right of a farmer who had, innocently and with some degree of care, purchased a piece of property, and there was a problem which, because of his lack of sophistication, created a confrontation between him and the major bank. The bank was going to obviously insist on their way regardless of what was going to happen to him economically, and there was a foreclosure sale that was established. And in the bankruptcy proceedings there is a means by which you can forestall the foreclosure sale. And the particular issue arose as to just when you would give notice of your bankruptcy. And the real issue, as I saw it, is to whose interest is it more important, the institution or the farmer, and it was possible to analyze the issue down to one: who is better able to protect themselves from a possible loss, a modest farmer or a bank. And from a social standpoint, the U.S. I mean, the State Supreme Court held our way that in the future, under those circumstances, the decision will fall in favor of the little guy, so to speak, who is less sophisticated and less capable of protecting himself when he gets into a circumstance. Now just because you're naive and unsophisticated doesn't mean you can override some fundamental rights. But in this particular case that was the issue and I felt it was important that a precedent exist in a very small, limited area.

MS. WHITE: And that one, I presume, there was not the ridicule from your peers as compared to the shoe incident?

ATTORNEY BARSNESS: No, that was a bona fide issue of merit.

MS. WHITE: The other question in this section is what did you most enjoy about being a lawyer and what was most distasteful to you about it? Now, we've sort of woven in the answer to that one through everything we've talked about, but dwell on that for me if you would. What did you enjoy most and what was most distasteful?

ATTORNEY BARSNESS: Well, generalization would be that what is most enjoyable for you actually feel it because of your attitudes and philosophies of some people are better off than they would otherwise have been. I know in one circumstance there's a family that today are still living on their farms, the whole family, and they've been around long enough so the guy is my peer age-wise, and so now it's his grandchildren who are benefitting by the fact that I was willing to go to bat for him under circumstances where few other people would have. And I think the whole family's better off, and they really truly are good people. His difficulty, if I digress a moment, was that he was a highly intelligent guy, and I think a fellow with a good degree of morality because I first started working with his father, and I know what his father's attitudes were. But he was always getting into trouble because he lacked not intelligence but he lacked fluency. He was not able to articulate adequately what it was that he was driving at, what he was going to do. And as a result, in his dealings he was a farmer and he dealt with farm implement people and other people in the farm community, and he was assessed by a lot of the fellows who went into business to deal with farmers that they felt they were a little smarter than he was, and basically they were not. But because he was unable to make himself clear, obviously, difficulties arose. Pretty generally, it was able to be successful for him over the years because his position was always basically solid pretty much and equitable and fair. And because he was assessed by these people who wanted to deal with farmers, and they were doing it because they felt they could make more money than they could make at if they were milking cows, and so it eventually evolved, they went through the period when the farm depression took place and he was going to lose his five farms and so forth, but we were able to keep and maintain that so he and his boys and grandchildren now are still able to live on the land that they had. And I think, my view, is the most satisfying thing that I've done.

Now you wanted the reverse situation?

MS. WHITE: What was the most distasteful? Which one made it hard to face yourself in the mirror and say that you did?

ATTORNEY BARSNESS: Well, this is sort of personal I guess. I tend to be a self-righteous person. When I see wrongdoing, I want to put a stop to it. That's probably one of the reasons why I became a lawyer in the first place. But occasionally it seems that in the nature of things adversities are going to occur and it's beyond your control; and in evaluating one's own performance in those circumstances, it's discouraging and distasteful to look back and say, gee, if I had just done this differently or had been a little bit more one way or the other. Losing and seeing the loss to people and the consequences is the distasteful part of it.

MS. WHITE: So you don't win every case.

ATTORNEY BARSNESS: No, no, no way. It has to do with the concept of esoteric is the concept of karma. I think there are -- all of its circumstances that occur, no matter what you do, you're not going to be able to avoid them simply because there are forces at play from other circumstances which you cannot overcome.

MS. WHITE: That's very well put. One small section question I want to ask you is about the technological change that you've seen. When you started practicing law there probably wasn't a photocopier, and today there's a computer behind your shoulder there. How have you rolled with that? How has it affected your practice, and what did you do to keep up?

ATTORNEY BARSNESS: Well, I tend to be an old dog with new tricks. But being practical, it certainly in one facet alone is the processing of getting your thoughts and arguments into the printed page. It was always amazing to me that when, before even typewriters, that they were able to get something drafted and then get the necessary paperwork. But then I originated as a lawyer while the simple typewriter was still the means by which you then would convert words and arguments into the printed page. And in those days if you needed duplicates, you had to do it with carbon copies. This is probably before your time. That was a horrible, horrible challenge because if you made a mistake with a word or something, the carbon copies, that was a nightmare. And then the copy machines came along which helped a lot. And I think the greatest single help was the typewriters where it would type a sentence, for example, and edit it by viewing it and then not losing what you don't want to lose and changing just the word with a letter and so forth. Then, of course, from there that possibility has been more and more refined.

MS. WHITE: Have you seen a change in the support staff that it takes, you know, from transcription to --

ATTORNEY BARSNESS: It's a lot cheaper because you don't need that support staff. In other words, I suppose one or two secretaries. One secretary can now do what a busy office used to be able to do, I mean, needed two or three secretaries to do.

MS. WHITE: So especially as a solo practitioner this make a big difference to you, how much support staff you have to pay.

ATTORNEY BARSNESS: Well, that's correct.

MS. WHITE: Is there anything that we've lost in that tradeoff, do you think? Do you miss having a pool secretary?

ATTORNEY BARSNESS: Probably the only thing that we have lost and maybe it's not a loss, but I think it probably is -- is the magnitude of the amount of stuff that is produced for a judge to look at. And I think it used to be, I think, you had to spend a lot more time thinking through exactly what it was that was important to express; and now there's an awful lot of additional basically garbage and rather than a succinct, well thought through thought-line through a printed page is a lot of embellishment. But this is something you would know a lot better than I, because I know that I mentioned that one of the most valuable courses I took in school was creative writing. He dwelled upon the concept of denotative and connotative rigging. And one of his examples of denotative writing was a little phrase of "powder puff breezes," and his idea being is that you then stimulated the affectation and exposure to those words to an expanding concept of visualization. Now in law you want to do exactly the opposite, you want to try to do as much connotative writing as you can to restrict the reader's train of thought to that particular train of thought that you were trying to bring about to an ultimate…

MS. WHITE: That's very interesting.

ATTORNEY BARSNESS: …to a irrefutable conclusion.

MS. WHITE: Right.

ATTORNEY BARSNESS: Therefore! I have

MS. WHITE: Control. Control that path. Very interesting.

ATTORNEY BARSNESS: And I'm sure that whether you're aware of those two descriptive words that you yourself, as a writer, you know, sometimes you're trying to make a beautiful bouquet and other times you're trying to just get to the point.

MS. WHITE: I've never heard it put that way and that's very helpful to me actually, denotative and connotative.

We're now moving on to just general observations about law practice. And I think I want to start with a specific in the sense of are there any anecdotes about judges, notable attorneys who are Dane County figures that you've observed over the years and that you admire?

ATTORNEY BARSNESS: One of the anecdotes I've often recalled was that back when I started practicing law, we had two circuit judges and one superior court judge, and there were some justices of the peace and then they developed, when I came on the scene, small claims court. But the two superior court judges and the I mean, the two circuit court judges and the superior court judges, one of the circuit court judges liked to imbibe, and the attorney that I started working with, Mr. Woodward, was one, I think, in charge of the ethics committee in the Bar Association. And he was called occasionally that this particular judge was on the bench under circumstances where probably he should not have been. And how they were able to solve those problems, it was interesting. And I would suspect that in today's climate such a judge would not survive very long at all, partly related to a more subjective viewpoint of everything in the whole community of law. And as is evidenced by the superior court judge who also at lunch hour will have his martinis and so forth and oftentimes in the afternoon, would be probably a little more intoxicated than he should of been.

But as a demonstration of how the culture would be more tolerant of the various frailties of people in leaving and sitting on the bench, that kind of a circumstances, I think is demonstrated by what I like to think should be so, and that is that the superior court dealt with the police having picked up somebody who was drunk on the street, a public drunkenness that was when that was against the law then they would bring them in and the judge would then have to do whatever he thought was appropriate, and the judge had a lot of leniencies to what he did. And if somebody was drunk in public too frequently, then maybe he'd put him in jail two to three days or something like that. But there was a local attorney who was a pillar of his church and a member of the various Bar associations and also very active from a public legal standpoint, really a good man, but he had the difficulty that on occasion he would drink too much at noon or whatever, and on one occasion he got bad enough, the police had actually arrested him and taken him and they brought him over the Superior Court. He was pretty, you know, he and his wife were pretty unhappy about it. Not angry, but sad about it, embarrassed about it. But he came up before this Judge Proctor and the fellow ahead of him, who was a oft repeater, was sent to jail. And then this guy came up next and the story was told, he apologized, and the judge said “Dismissed, case dismissed.” The prior guy who was sent to jail was still in the courtroom because they kept everybody in the court room at that time, and he said, “Hey, Judge, Judge.” He said, “How come this guy gets his cased dismissed for exactly the same thing that I did and he was just as drunk as I was?” And the judge looked at him and said, “Listen, fella, when you've got the track record and do for your community as much as George has done”, he said, “I'll dismiss your case too.” I always thought that that was a little vignette reflecting a fact that collateral conduct back in those days had a lot more to do with a judicial determination, and what is evolved in the legal community now is that an attempt to be more and more objective, and the effort that's being made by those who take this view that it's totally irrelevant as to whether or not you were the worst character in the world as to whether or not you should or should not suffer the consequences of a given charge to which you're being subject. And I disagree with that. We should change our system where judges are given more and more subjective capacities; however, to do so, the judges should be a lot more carefully selected than is our current practice, and I refer to the Mormon system as a good example. But lawyers and judges and law professors make more money with the system the way it is, what it evolved into.

MS. WHITE: I going to ask you a few close-ended questions. These are close-ended, as in more of a yes/no structure.

ATTORNEY BARSNESS: How many times have you stopped beating your wife.

MS. WHITE: Is there now a greater or smaller amount of legal specializations?

ATTORNEY BARSNESS: Greater amount.

MS. WHITE: Have law firms tended to become larger or smaller?

ATTORNEY BARSNESS: Strong tendency to become larger and larger. The small practitioner is doomed.

MS. WHITE: Is this related to the specialization, do you think?

ATTORNEY BARSNESS: I think there are a lot of specialization is a result of it rather than the cause of it.

MS. WHITE: So what is causing this sort of gravity towards larger firms, the economics?

ATTORNEY BARSNESS: Strangely, you could make an awful good case for a major contributing factor are student loans. Because I had one lad in law school who was with me for a while, he wanted to do what I did, and we were very compatible. He wanted to go to work for me and establish a practice on his own and share his future with me because we got along very well and he was a premier type of guy, but he couldn't go to work for me because, being a small firm, I could not afford to pay him what was necessary for him to even pay the amounts he had to pay every month to pay off his student loans. So his future was completely controlled by the student loan, and I would suspect that he was the kind of a person who, had there been no student loans for easy access, he would have gotten through law anyway, and he would have come out without any big burden of debt, but the little vignette which infuriated me with my own son, when he went to college, by virtue of the fact that he could get student loans, he was able to have a very expensive hi-fi system in his dorm room to match the hi-fi systems in the other rooms in his dormitory. Now that, I think, that's a little vignette that helps to show that the student loans are being used to not just get an education but to make life a little  -- in any event, it's misused.

MS. WHITE: Well, what we consider an impoverished student way of life has changed considerably from your days at law school.

ATTORNEY BARSNESS: And then I think the second thing, at least in the legal community, in order to enhance their own stature, the law professors nurtured the idea that when you get out of law school because of what we have been able to do for you and train you and cultivate your minds and so forth, you are a very valuable commodity and, therefore, you are worth $50,000 to $100,000 out of law school. And when I got out of law school, you expected to live on crackers and cheese for four to five years.

MS. WHITE: That is a huge change, isn't it?

ATTORNEY BARSNESS: Yeah, and it's operating to be a detriment of society because it is eliminating legal services from the, certainly, from the economic lower class, almost completely no availability, and it's climbing up into the middle economic class where they cannot afford to have a lawyer handle their problems.

MS. WHITE: The whole system is going to snap at some point.

ATTORNEY BARSNESS: Well, there's beginning to surface some efforts to alternative dispute resolution, but I think that's two or three decades down the road because in order for that to work you have to get back to the subjectivity of getting more support to the subjectivity of power, of an adjudicator. And are now having a mediation system which is not particularly successful because the mediators tend to be guys who are not that dedicated to what they’re doing -- a few of them are and they're great but the difficulty, I think, is that they don't have any muscle. But there ought to be consequences, and I have a good example is that there is established in medicalmalpractice a panel of a doctor and the public person and, I think, an insurance person, four or five people on the panel, and all medical malpractice cases have to be screened before them, and they make a recommendation. But it's a joke really because it has become the practice of the medical malpractice defendants is to a scorched earth policy where just no way are we going to pay you anything. If you really want to get some money out of medical malpractice, you're going to have to go in front of a jury whether you like it or not. And the net process is so expensive that it doesn't warrant a gamble unless the possible payoff is a six-figure possibility. And so people are no longer if you get a medical malpractice problem, you might just has well grin and bear it.

MS. WHITE: Interesting. I'm going to turn the tape over because we're almost at the end.

This is side 2 of tape 2, and we're reflecting on general observations on law practice and your advice for those to come along. How has continuing legal education changed?

ATTORNEY BARSNESS: There's a lot more of it and it has value certainly. I think it's as simple as that.

MS. WHITE: Yeah. Are clients more or less demanding of their lawyers? I could ask you the next one.

ATTORNEY BARSNESS: No, no, no.

MS. WHITE: What do clients want from their lawyers?

ATTORNEY BARSNESS: I want to answer, but it has two answers. From one viewpoint, I would answer the question as probably not; but on another viewpoint, I would answer that they probably are in terms of what they are willing to pay for what they have received, and that involves what we've talked about before and that is young lawyers are insisting on making $50,000 to $100,000 a year, and we've gotten rid of the Robin Hood system to a Plumber Theory of compensation. So that if you have a person of modest means in the lower middle class, if you have no other means of compensation other than a hourly rate, which seems to be the foolish way to be going, if their particular problem is complicated and difficult, it is prohibitively expensive to do anything about it.

And the dilemma for the lawyer then is that if he doesn't do the thorough job that's necessary, he then would be probably brought in to the Board of Professional Responsibility because he didn't do a proper and adequate job, and his argument can't be, well, I wasn't going to be paid; because the old view, which I think is great, is that once you tell a client that, “I will represent you”, you have to do it the bitter end.

MS. WHITE: Oh, really.

ATTORNEY BARSNESS: As a result, knowing that, more and more cases that if you see is too complicated and you see they don't have money to pay it, you say, “I'm sorry I really can't do anything for you, unless you want to put $10,000 in trust”, in which case most people don't have it. And there was another thing that I forgot. But the but that's the -- I guess the alternative was if there were a Robin Hood Theory, then if you did a very, very effective job for someone on a very difficult case, you then could augment, take a bigger fee, than would otherwise be the case on a per-hour basis, particularly maybe the case was quite simple and you did a very enormously good job and somebody got a handsome result from what you did. You could then make up for the little cases where you couldn't make it. So the getting away from -- I mean, introduction into the legal profession of per-hour basis is eliminating legal services for the smaller people.

MS. WHITE: That's very interesting, in that there isn't a one-to-one relationship between the complexity of a case…

ATTORNEY BARSNESS: No, that's the difficulty.

MS. WHITE: …and the client's ability to pay. What do you think, in essence, clients do want from their lawyers?

ATTORNEY BARSNESS: I divide all of humanity into two categories: those people who, to a greater or lesser degree, are willing to live with the consequences of their own actions and the ones who do not. And in the former category, those people want a sensible, reasonable resolution of their difficulties and try to get it resolved as quickly a possible. And an enormous number of those never even show up in a law office because they get it resolved themselves just because of their philosophy. Now of the latter category, I suppose that the vast majority of them would never be satisfied no matter what the results are, to a greater or lesser degree.

MS. WHITE: Yes, that interesting that as lawyers you end of getting half the population not the whole, not the ones who can resolve their problems and take responsibility.

ATTORNEY BARSNESS: You tend to get the ones who don't want to live with the consequences of their actions.

MS. WHITE: It goes back to plaintiff versus defense. Okay, we're down to our last couple of questions here. What attributes are particularly desirable for a lawyer and what advice would you give to new lawyers. Let's start with what attributes, such as legal knowledge or common sense, are particularly desirable for a lawyer to present.

ATTORNEY BARSNESS: Common sense, good judgment, and compassion.  And I suppose, incorporated in compassion is the altruism.

MS. WHITE: Altruism is another good word to put in there.

ATTORNEY BARSNESS: I believe that, as far as I know, there is no official agreed-upon definition of the terms, but I would define an Attorney as to whom law is a business, a professional. I mean that a Lawyer, as distinguished from an attorney, is one to whom the practice of law is indeed a profession where, and I like that little anecdote, is that in the latter case, as contrasted to the first case, is that those to whom lawyering is a business, more than likely if a person doesn't have a problem when he walks into the door, he's got one when he walks out.

MS. WHITE: That's pretty good. I haven't heard that one yet.

ATTORNEY BARSNESS: But basically it's true, and I've seen it happen. Back when I started practicing law, a friend of mine whose philosophy was fine but he had an associate who was laughing about the fact that some people would come into the office and they had a land contract problem of some sort, and he just plain lied to them as to the difficulties that they had and were facing them and got them all frightened and so forth and demanded that they retain him. And, of course, the people didn't know any difference and, of course, the resolution to the problem was very simple. So he made it appear that it was a big difficult problem and then finally resolved the problem and, of course, they walked off just happy as a lark that this enormous problem had been solved, but basically it demonstrated what a banker friend of mine had to say, who was a little more cynical in observing what contact he had with lawyers, that you guys have a license to steal. And that's an attorney, not the lawyer.

MS. WHITE: Now in closing, what advice would you give to a new lawyer? I have a nephew who's just taken the Bar…

ATTORNEY BARSNESS: Stay out of it.

MS. WHITE: Stay out of it.

ATTORNEY BARSNESS: No, I'm kidding. I'm kidding.

MS. WHITE: Well, but it sounds like you have some concerns about the future of the field and that it may not be as satisfying a career for the next guy as what you've been through over your life.

ATTORNEY BARSNESS: Well, I see increasingly so that lawyers in the larger firms, it's been reported, they are increasingly dissatisfied with their lifestyle and their profession and increasingly so they are then either leading the practice of the law or actually going out and trying to establish themselves as a practitioner in a smaller environment of other lawyers.

MS. WHITE: Do you think there might be a resurgence of the small firm?

ATTORNEY BARSNESS: I haven't thought about it enough to really, I think the -- I'm guessing now, but I think it's so profound that to shift back to a Robin Hood Theory of compensation for lawyers would help to bring that about. And because if you are an altruist, you actually would go ahead and take a small case where it's a real loser economically, knowing that you could still make up for the difference and feed your family and kids because your first loyalty, of course, is to feed your family and your kids unless you're a bachelor, but that doesn't happen.

MS. WHITE: No, this kind of brings me back to at the beginning of our last conversation when you were to talking about the book, "The Country Lawyer." How that described a lifestyle and type of work that seemed appealing and bring you toward it. What would that book be like today? What would the fellow writing the something lawyer it would be a very different book today, wouldn't it? The suburban life, I suppose.

ATTORNEY BARSNESS: I would suppose that such a book couldn't honestly be written, other than maybe hopefully. I don't know whether my viewpoints that I've expressed to you are valid, but that may be an expression of the new frustrated country lawyer.

MS. WHITE: That's great. Is there anything else you would like to say in closing?

ATTORNEY BARSNESS: No, other than thank you for your effort, not in relationship to me, but I think in doing what you're doing, if you go through enough lawyers, you may be helpful. And I would be interested whether or not others or are really professional people at heart would agree with me. There are some who are businessmen and you would get, I would think, an entirely different story. But I'm thinking you would get the ones of my peers who I respect, you would probably get pretty much the same viewpoint, I hope, unless I'm a real nut.

MS. WHITE: Well, I'm excited to find out.

ATTORNEY BARSNESS: Don't know where I'm at or what I'm doing.

MS. WHITE: Well, thank you very much for your time, John.

ATTORNEY BARSNESS: Well, thank you.