Glowacki, Thomas Oral History 04162015
Glowacki, Thomas, Oral History 4/16/15 Interviewer: Kris Anderson
Location: Hill, Glowacki, Jaeger & Hughes, S.C. 2010 Eastwood Drive, #301 Madison, WI 53704
Transcribed by: Ann M. Albert
MS. ANDERSON: Today is April 16th and this is Kris Anderson. I'm at the office of Glowacki, Jaeger, Hughes and --
MR. GLOWACKI: Hill, Glowacki, Jaeger & Hughes.
MS. ANDERSON: -- Hill, Glowacki, Jaeger & Hughes to interview Mr. Tom Glowacki as part of the Dane County Bar Association Oral History Project. This interview will be recorded and transcribed and made available for people interested in the evolution and development of the practice of law in Dane County. Mr. Glowacki, do I have your permission to record you and have a transcript of the interview prepared?
MR. GLOWACKI: Yes, you do.
MS. ANDERSON: Okay. I just hope it's working. I think we're good. We're gonna keep going.
Q So they ask for your full name. But where do you live?
A Mailing address is Sauk City, Wisconsin. It's in rural Roxbury, still in Dane County.
Q And do you want to give me any of your family information? Are you comfortable with that?
A Sure. My wife's name is Martha. She just retired as curator of the Watrous Gallery over at the Overture Center where she ran it with Randall Berndt for the Wisconsin Academy of Arts, Sciences, and Letters. Been married since -- oh, boy -- 1972 after we graduated from the UW. And we don't have any kids.
Q You don't have any kids. That's interesting. Okay. So she was a curator at the -- I'm sorry. The museum?
A The Watrous, W-a-t-r-o-u-s.
Q The Watrous. Okay. That's named after somebody.
A James Watrous.
Q I mean, the name's familiar. I don't know who he was. But that sounds like a cool job. And so did you graduate here from the University of Wisconsin?
A Undergrad Poly Sci in 1972.
Q Oh, wow. So you were there during the campus riots?
A Yes.
Q So was I, actually. But I was only 15 at the time. I was there actually for 1970, from then on, from the Cambodia riots on, but -- although things were kind of -- that was on the downside, but --
A Uh-huh (affirmative).
Q Did you participate in the riots?
A Um, basically, no. There was one or two candlelit marches I remember doing, but got a scary lesson in how you don't hang around at those things 'cause I remember being on lower State Street opposite the Library Mall, and we were watching marchers come down the street surrounded by, you know, heavily padded and helmeted cops carrying billy clubs, and there was some radical character running around behind the people watching throwing rocks at the cops. So there you were, you know, if some rock hit a cop or went whizzing by him, he was gonna turn around and see you standing there. So after that I didn't hang around.
Q So did you -- I mean, do you remember when this was exactly?
A Probably it was the Cambodian spring. I don't remember for sure.
Q Did you consider yourself -- I mean, you don't have to answer any of these questions, but I'm curious, so I'll ask. Did you consider yourself, um, at least politically aligned with the leftist vote?
A Leaning in that direction, yeah. But, you know, not horribly aligned, at least. You know, the farther left you got, the less I was aligned.
Q Okay. So then -- okay. So graduation from undergrad or law school?
A Undergrad '72.
Q Okay. And so then did you go straight to law school?
A Straight to law school, right.
Q And I'm sorry. Did you say you graduated here from this law school?
A Yeah. 1975.
Q So what kind of work did you do? Did you do any work during law school?
A Yeah. Um, later in my first year I went to the placement office to get some advice on finding a summer clerkship, and I remember it was Mary Staley was the placement lady at the time, and her advice was that everybody went to law firms that are on the Square looking for clerkships, so they were pretty competitive, and she suggested I go elsewhere. We were living on the east side at the time right across from East High School, so I basically knocked on the east side doors and wound up clerking half-time for this firm Harris & Hill, Warren Harris and Harry Hill. And then I was also half-time for a solo practitioner in Waunakee, Reggie Schleck.
Q And that was your first summer?
A Right.
Q Okay. So then what happened?
A The second summer I didn't go back with Reggie Schleck. I stayed with Harry and Warren and once I finished law school stayed on as an associate here.
Q Okay. So have you been with this firm your whole career?
A The whole time, yeah.
Q Wow! Where was your firm when you first got attached?
A 2037 Winnebago. So it's basically a block and a half from here.
Q Oh. Okay. So 2037 was -- would that be, like, where R.A. Week -- or what's his name -- Reek, the Reek Chiropractic is on Winnebago?
A Cynthia Rose, yeah. Doreen Giles is the tenant now.
Q Okay. Well, that's -- you were on Atwood for a while.
A Right. 2158, which has been torn down. That's where they're building that new building now.
Q Okay.
A Yeah. So I was at Winnebago from the summer of '73 to 1982. ‘82 we moved over to the Atwood address. I'm sorry. I'm ten years off. '92. We moved to the Atwood in '92, and then to here in 2002. We were on the third floor at the time. Now we're on the second.
Q Okay. All right. And so had you specialized in or had you, like, known what you wanted -- what kind of law you wanted to work in when you were in law school, or did this kind of turn out to be what happened?
A Yeah. It kind of turned out to be what happened. Harry and Warren had a real general practice. Warren was pretty much exclusively estate planning, probate, and some residential real estate. Harry did the same, practiced in the same areas, but he also did some family law, a little bit of personal injury work, some trial work. And so I started out doing all of that, small claims, collections, that sort of thing. I did a little bit of criminal work and just had a run of about three cases where I represented blatantly guilty people, and --
Q Was that enough to --
A Yes.
Q That satisfied your --
A Yeah. That took care of that little piece of my curiosity, and so quickly got out of what limited criminal law I did. And so for a long, long time, it was a real general practice. Probably by about the mid-eighties, it had narrowed to family law, bankruptcy, personal real estate, probate, lighter estate planning work. And that just kept kind of getting more and more focused.
I can't remember exactly when it was, but late eighties, another round of revisions in the Bankruptcy Code, um, a problem competing with the people who specialized in doing the debtor side of bankruptcy work, and so they were cranking bankruptcy cases out at a fee that, you know, I couldn't handle, and –
Q I'm sorry. Can you explain that to me?
A Yeah. It was too cheap. I mean, there was no way that --
Q Oh, that you could make money?
A -- yeah, I could make money at it compared to somebody that was churning them out and probably was using a paralegal to grind through all that stuff. And I did a little bit of creditor work, but not enough to keep going. So, yeah, it was give or take 1980.
My last case was kind of involved, a Western District case that got transferred to Milwaukee 'cause Judge Martin had been in practice or associated with almost everybody on the case, so he had conflicts all over the case, so it went to Judge Clevert in Milwaukee.
Q So was it -- were any of the cases you had in those first ten years memorable? I mean, you talked about the criminal cases that were blatantly guilty. But did any of those go to trial or --
A Um, no. There was a federal case that was, for reasons nobody ever understood, in front of the Grand Jury. There were about five or six guys who tried to escape from Oxford, so they each got separate counsel. They were before the Grand Jury. There was one other character who wasn't in on the plot to escape, but took advantage of the confusion and went over the opposite wall. They were all caught in short order. And we were -- met with our clients, all five or six of us, and basically told them to take the Fifth Amendment before the Grand Jury, and that was it. But along the way, Frank Tuerkheimer, who was the U.S. Attorney at the time fresh back from Watergate, called each of us in the office separately. And I remember he had his feet up on the desk, and he looked at me and he said, "I know you're excited, this is your first federal appointment." He said, "Before you do anything crazy, just understand we've got your guy on videotape trying to go over the wall." So that's, like I said, blatantly guilty.
Q Right.
A So there was that one. I had a strange paternity case with -- it was in front of Judge DeChambeau, and it was the weirdest couple you'd ever want to meet. The guy was just a creep, the kind of person that just made your –
Q -- skin crawl?
A -- skin crawl. And there it was, they had this kid together. And he was -- he was a strange character. And he had very limited placement time with the child, and it was supervised at the mother's sister's house. And this guy snuck a camera into a diaper bag and videotaped all of his placements with the child. And they were -- the guy was so out of it, the videos that we did sit through were just -- the guy was clueless, but --
Q Wait. So what do you mean he was clueless? He was the one that was doing the camera?
A Yeah. He had the camera going, must have been a remote control. And so there he is, he's reading a story to this, I don't know, the child was, like, four at the time. And it was like reading bedtime – a speed reader reading bedtime stories to the kid. He just whipped through them at this incredible speed, and the kid wasn't paying attention. And it was just a horrible thing. And he had a whole -- literally had a tableful of videotapes.
Q But why?
A Because he was gonna show what a great dad he was. So on the -- early in the first tape I objected. I mean, I didn't expect this, and it wasn't a very good objection. Judge DeChambeau overruled me, and we proceeded to spend, I don't know, the next hour, hour and a half watching these idiot videotapes. And then right before noon, all of a sudden the TV went out.
Q You were all, like, yay.
A Yeah, we were all happy. While I'm sitting there watching these idiot videos, Judge DeChambeau's up on the bench, and he's got a couple of Wisconsin Reports in front of him, and he's writing down notes, and I'm thinking, great, he's deciding some criminal suppression hearing --
Q Right.
A -- motion or something while I'm sitting there.
Q So this is just a way to -- yeah. Okay.
A Yeah. So the TV goes out. This guy jumps up, pushes buttons, nothing works, and goes running out of the courtroom saying he's gonna go get Family Court Counseling's TV and he'll be back. Well, he doesn't ask to adjourn, and it's, like, five to noon or something like that, and so we're still in court without this guy who just went running out the back door.
Q Without the respondent.
A Yeah.
Q Okay.
A And so Judge DeChambeau kind of looks up at the ceiling and says, "It seems to me that the making of these videotapes violates the provision of the Wisconsin Anti-Wiretap Act," and he cites the statute number. And so that's what he'd been doing. He was researching the issue all this time. And so I start writing down as best I can everything he's saying. I'm writing down the case citations and the page numbers and the statute and everything. I look at the court reporter and she is literally sitting on her hands, so none of this is on the record. And this guy's not in the courtroom, and so Judge DeChambeau is going on about how we can't do this, after having denied my motion.
So I go to the law library -- this is the old courthouse. I look up all the cases that he's cited, get the full quotes, get the statute and everything.
Q Uh-huh (affirmative).
A And so we get back on the record, and I ask the judge if I could voir dire the witness on how he made the tapes. And the judge kind of gives me this surprised look. And I asked the guy if he'd gotten my permission. No. He hadn't gotten the mother's permission. He hadn't gotten the sister's permission. So I looked at Judge DeChambeau and I said, "It seems to me that the making of these videotapes violates the provisions of Wisconsin." So I basically recited everything he said. And Judge DeChambeau looks at me and says, "Motion granted."
The guy says, "Wait a minute. Don't I get to speak to this motion?" And Judge DeChambeau looks at him and says, "No, you don't. The guardian ad litem has stated the law in such a crystal clear and forceful fashion that there's no possible counterargument." He said, "All the years I've been in the DA's Office and now on the bench, I've never been able to reconcile the holding of the Supreme Court of Wisconsin in that clear -- with the clear wording of the statute until the guardian ad litem has just totally crystalized and recognized it for me." And that was it.
So everybody in the courtroom except dad knew that all I had done was replayed the judge's own comments. And so that was the end of that one. And then, I don't know, it was about two months later I get a phone call from Tom George.
Q Who's he?
A He was a lawyer at the time, a very colorful guy, former city alderman. The guy could wear one pattern of plaid pants, a different pattern of plaid sport coat, polka dot tie and striped shirt.
Q Just for kicks?
A And he had been pointed in my direction by Judge Moeser because he represented the Badger Candy Kitchen, and they had had a guy bomb in there at the noon hour one day saying he was an attorney from out of town and his TV had broken down in the middle of a trial and he needed to borrow their TV for court that afternoon.
Q Oh, my God.
A So they let him go with the TV. And Moeser, um, was the Chief Judge at the time, and he'd eventually gotten to Moeser, probably with all the judges in the courthouse laughing about it, and Moeser told him to call me because I probably would know what had happened to the TV. And he, Tom George, told me that his client didn't want to report it to his insurance company because he'd helped carry the TV out of the Badger Candy Kitchen and it would look bad.
Q So, wait. There's two different -- his client is a different guy than --
A Sure. Tom George's client is Badger Candy Kitchen --
Q Right.
A -- and they had helped the dad in my case carry the TV out of the store.
Q What was the problem? Had he not returned it?
A Right. It was still hanging around the courthouse. So I had to tell him Judge DeChambeau knew where it was and go get it from him.
Q Oh, my God. That is too much. It's crazy.
A Yeah, it was.
Q So when was that? Was that before -- that had to have been after the creation of the Circuit Courts, or was it still then county?
A Right. Yeah. We were all just down to circuit courts at the time. So that would have been probably early eighties.
Q Oh, my God. That is a great story. So why were they testing -- why was the paternity at issue if he was the --
A The paternity wasn't at issue. It was his placement time with the child.
Q Oh. But they weren't married?
A Right.
Q So it was a paternity kind of --
A Yeah. He was a real strange dude. He was upset with one of my recommendations, and he had a son from a prior relationship who was probably about eight or ten at the time, and they picketed my office.
Q The kid did?
A The kid and the dad.
Q Oh, my God.
A And one of my divorce clients saw it, and he called me up, and he was just rolling on the floor laughing, going on about how much I was paying the guy 'cause it was great advertising and all that. And so the guy -- the kid at the time was, um, in school not too far from my office, grade school, and the parents were allowed to come to class. And the guy became so intrusive that they eventually called the cops and had him removed. And so I got a restraining order on him, which Judge DeChambeau extended to a two-mile radius of --
Q Wow!
A -- Emerson School over on Johnson Street. And at the hearing a little bit later, I was talking to the mother, and she said, "Well, you know, the big problem with that two-mile radius of Emerson School, don't you?" And I said, "No, I don't." And she said, "Your office is in a two-mile radius of Emerson School. He can't picket you anymore."
Q Oh, perfect. Serendipity. It sure sounds like synchronicity. you know, I worked for Judge DeChambeau from 2000 until he retired, and I just -- I love the guy.
A Yeah. He's not a wild and crazy guy.
Q He's never -- he's just so, you know, like, no BS, essentially.
A Yeah.
Q I mean, he's just -- you know, he doesn't mess around.
A Okay. With that in mind, one more story from that case. The mother is on the witness stand and the dad's cross-examining her. And he wants to ask her about her teddy bear. And I object.
Q Wait. Her teddy bear?
A Her teddy bear.
Q Not the kid's?
A Not the kid's.
Q Okay.
A The mom's teddy bear.
Q Okay.
A And I'd object, and Judge DeChambeau would sustain the objection. He'd ask another question. I'd object. I'd get sustained. And this happened, like, four or five times in a row. And finally, Judge DeChambeau slams his pencil down on the bench, looks at the guy and says, "You've asked a series of questions about the mother's teddy bear. The guardian ad litem has objected to every one. I sustained his objections every time. Stop with the questions about the teddy bear. There's nothing wrong with her having a teddy bear." The guy said, "But you don't understand. It's her relationship with the teddy bear."
Q Oh, my God. Oh, my God.
A And DeChambeau looks at him and he says –
Q I could see Judge DeChambeau's expression.
A Yeah. He said, "Well, I have a relationship with my teddy bear, and I had this teddy bear when I was a child, and my mother, bless her heart, saved it for me, and it's in a box in my attic. And I'm not saying that I visit my teddy bear a lot, but now and then I'm in the attic looking for something else, and I'll see the box with my teddy bear in it, and I'll open the box, and it reminds me of simpler, happier times. So I'm telling you there's nothing wrong with her having a relationship with her teddy bear. Move on."
Q Oh, my God. That is a fabulous story. Do other people remember that?
A Probably not.
Q Oh, my God. I'm so glad we've got this down. It's just -- that's the best story. God, I love him. I could tell you some stories too, but that's not why we're here. So, okay. And so the criminal trials you had -- I'm a freak for criminal stuff. I mean, I am just curious about it.
A Well, I never -- none of 'em ever got to trial. The great federal escape on videotape.
Q Oh, right.
A I had another one, clients I had represented buying a house or something. The guy was a night janitor. They'd had a problem with the petty cash drawer being stolen. So they -- the police powdered the money that was in the drawer one night. My guy steals it. He gets this powder all over his pants. And this was a part-time night job for him, so the police suspected it was him. They went to the house. He was at his day job. His wife let them in, let 'em get the pants that he had. So, yeah, this powder was all over 'em, so that was pretty guilty.
And then the other one was the, um, a woman friend of a male client, she was involved in a paternity case, and the corp. counsel thought she had perjured herself at a paternity hearing, so they filed paternity charges on her.
Q Wait. They filed --
A Sorry. Perjury charges on her. And what had happened was that at the paternity hearing, she had a very fuzzy story about being drunk and it was a one-night stand and she could only remember the guy's first name 'cause she hadn't seen him since -- or hadn't seen him before. And so it was all very vague. And somehow the assistant corp. counsel, Arnie Rusky, knew that her divorce case had gone up on appeal, and so there's a transcript of it. And he looks up the transcript, and in the divorce trial, she gave a very concise, coherent version of how the guy who had brought her into my office was the father of this kid. And it turned out that the divorce trial testimony was a lie. She didn't want to get on the stand and talk about being drunk and a one-night stand and everything. So my guy basically volunteered to be the named father at the divorce. And so the paternity hearing story about the vague one-night stand was the truth, so there's my defense to the perjury charge. She was lying the first time under oath, not the second time.
Q So -- but she -- the lying -- the first time she said that he was definitely the father?
A Yeah.
Q Oh, I see. But she didn't actually know?
A She knew at the time it was the one-night stand, but my guy volunteered to make it look good for her.
Q Oh. So in the paternity case, she was, like, trying to --
A Yeah.
Q -- keep liability from him, off of him.
A Right. So they thought on the second go-round she was trying to get her friend off the hook –
Q I see.
A -- whereas he volunteered to be on the hook. So they reduced that to misdemeanor false swearing. But after that, those three cases, I didn't see the future.
Q Okay. So did you have a passion for any of the work you were doing, or was this, I mean, was this -- like, why did you go into law and -- I mean, was it a childhood thing that you were into law as a kid or –
A Sort of grew up on the south side of Milwaukee. And on one side the neighbor was an engineer on a Lake Michigan ore boat and on the other side the neighbor was an attorney for an insurance company, and he was just an older, easier-going guy who was around a lot whereas the –
Q -- engineer.
A -- ore boat engineer was gone half the time on the ore boat.
Q I don't know what an ore boat is.
A These big, long freighters that bring taconite ore down from the Mesabi range.
Q Ore! I'm sorry. I'm thinking o-a-r.
A O-r-e.
Q Now I understand.
A So yeah, I think that probably nudged me in the direction of law school 'cause it seemed like I always wanted to go and wanted to, you know, just get out there and help people. And once I got out, it eventually followed down to family law.
Q Um, so -- okay. So you grew up on the south side of Milwaukee. Do you mind telling me what your folks did, I mean, what your parents were?
A Well, this is the 1950s, so my mother was a housewife. My dad was what was called a setup man. He worked at Allen-Bradley. And his job was -- he had his own machine. Allen-Bradley made resistors and transistors and whatnot, electronic stuff. And so there were different kinds of resistors, so you needed different kinds of wire that came on spools and needed different kinds of power for the transistors. And so his job as a setup man was to change from one kind of job to another, set up four or five machines that were run by women, and so he was responsible for changing the machinery over to the appropriate job, keeping the wire going into it, getting the power in there. When he had a spare moment, he had his own machine to run. But basically, it was to keep these four or five women going.
Q So did you have siblings?
A One brother.
Q And were you the older or younger?
A I was the younger. I'm sorry. He's the younger. I'm the older.
Q And so had your parents been to college?
A No. I was -- my cousin and I, we saw ourselves an older generation. You know, my brother's basically only about not quite 22 months younger than I am. We were the first to go to college. My brother has also gone since. He got his degree.
Q Oh. Okay. I thought you meant gone, like passed away.
A Yeah. This wasn't a family on either side that got very far in higher education until my generation.
Q Uh-huh (affirmative). Well, good for you. So are your parents still alive?
A No.
Q But were they around to see your graduation?
A My mother was. My dad died when I was in high school.
Q Oh. I'm sorry. That's -- that was hard. So were you just, like, "I can't wait to get out of Milwaukee to go to college" or --
A Yeah. That's about right.
Q Did you know what was going on on campus here at that time?
A Yeah. And it didn't bother me. So we're talking graduating from high school in 1968. So yeah, fall of '68, you know, it's, like, crazy up here, and it didn't bother me at all.
Q My brother, my older brother, was in college right around the same time.
A And by that time I'd already met Martha. We were dating. And so it comes to Thanksgiving of 1968. We go to my grandmother's for Thanksgiving. And so here we are with my mother's side of the family.
Q And are they grilling you?
A Well, yeah. It's kind of like, okay, they're back from Moscow on Lake Mendota and --
Q Right.
A And so everybody is asking us about this. And in the middle of the whole conversation, which is getting more and more uneasy, my grandmother, bless her heart, out of nowhere said, "In Madison they screw like mink."
Q Oh, my God!
A Which sort of endeared her to Martha, and there's just been a good relationship after that. But it was just the funniest thing. She just came out of nowhere.
Q No kidding. Please don't non sequitur.
A Yeah.
Q Yeah. I remember in 1980 being with a partner whose grandparents, especially -- well, I mean, she came from a really, really Republican family, and, oh, actually, maybe -- yeah, her grandmother said, "So what do you think about our President Reagan?" I was about to launch into it, and my partner just saved me 'cause I thought she was serious, I mean, or I thought she was kidding or something, like, I didn't remember, but she wasn't. But, um, so how did you actually meet your wife? Was it in class?
A It was senior year of high school. We both, different schools, so we never would have met. Just happened to go to a dance at, it was a teen-age nightclub.
Q Oh, cool.
A We met there.
Q In Milwaukee?
A Yeah.
Q So, like, a nonalcoholic nightclub?
A Right, yeah. This was back when 21 --
Q Oh, that's so cute. That's -- I mean, I never -- I don't know if they had any here, but if they did, I was -- I grew up here, I wouldn't have -- I didn't know about 'em.
Q But -- so did you go there, like, to meet girls?
A Yeah.
Q Uh-huh. So did you end up -- and did you go there by yourself, or did you go with some other guys?
A Yeah, I want by myself.
Q Oh. That's brave.
A Yeah.
Q Wow. And so -- and then she happened to be coming to Madison too?
A Yeah.
Q Or -- yeah. Cool. That's a great story. All right. So then farther along after the early practice years, did you notice -- I mean, when you were telling that whole story about that weirdo with the paternity case, I just found myself thinking, you know, I just don't really hear about stuff like that really happening anymore. I mean, I don't know. suppose it does and I'm just not in touch with it. But I was with the circuit court for ten years clerking --
A Uh-huh (affirmative).
Q -- I mean, and there were crazy things that would happen, but that story just sounds so colloquial.
A Yeah.
Q You know, it's just hard to imagine that sort of thing, just things being sort of that informal and nutty. But what do you think?
A I think I've had not much criminal law experience, but yeah, in family law there's always strange things happening at least frequently enough to keep everybody interested.
Q Have you got some other stories like that?
A Well, that's probably --
Q What a great story.
A -- the most out there one I had. Another one was with Judge Nowakowski.
Q Oh, yeah.
A And the mother in that case had been pretty outrageous, hiding the child, leaving the state with him and everything, and just one thing after another.
Q And you're –
A I'm the guardian ad litem.
Q Oh.
A And so either I or dad's attorney had filed the contempt motion on her. And so I remember walking into the courtroom with dad's attorney -- and this is, again, as you know, the old courthouse, you never had bailiffs up there except if the judge asked for one. And so this was more or less a continued hearing, and we're walking into the courtroom, and there's two sheriffs deputies sitting in the public seating area. The attorney and I looked at each other and said, "Oh, I guess she's going down." And then she did. She spent a weekend in jail for that one.
Q So she was there?
A Yeah.
Q And was the kid there?
A No. And yeah, so she got taken out of the courtroom by the two deputies when it was all done, which kind of shook her pretty badly.
Q So then what happened? I mean, how did the case resolve?
A Well, yeah. She comes back from Texas with the kid, and it settled down after that. And of course, as soon as she got, you know, a weekend in jail, it more or less settled down, the husband started acting up. So it was a crazy case that probably went on for about a year or so.
Q So did you generally do the guardian ad litem thing, or did you represent any parents?
A I always represent parents and did guardian ad litem work at the same time.
Q Not for the same people.
A Not for the same people, no. But it was -- I was in family law dealing with some stuff, and it was a much smaller Bar, smaller bench at the time, so in different, whatever you want to call it, ethos about how to practice.
Q That's what I'm talking about, like, the difference between back then and, like, whatever.
A Yeah. With the old courthouse, you know, you could always just walk in the chambers and, you know, I spent time schmoozing the judges' clerks just so I'm on their good side if I need to get a hearing scheduled. And of course, now that's never going to happen. But that's the way it was then. So if you started showing up and representing parties in a family court case and some judge might think you did a good job, and so you'd get appointed as guardian ad litem.
I think it was probably Judge Byrne that gave me my first appointment, at least the first one I can remember. And so, yeah, after that, you know, the judges talk, and so I'd pick up more appointments and get more and more guardian ad litem work.
Q Right. So the things -- everything changed after the '91 thing with -- oh, I've forgotten his name even, the guy that came in with the gun and shot the coroner.
A Right.
Q Was that Schmelzer? Or was he named Schmelzer?
A I can't remember his name, but, yeah. He killed Clyde Chamberlain. He killed his receptionist, I think she was. And I remember Judge Krueger was worried 'cause they thought he was gonna come after them because she had been the juvenile court judge for the guy. Yeah, I think that took some of the fun out of it. And then the new courthouse, the way it's set up, just you never have that informal contact with judges anymore.
Q Right. That's really too bad. And I actually think some of them feel the same way.
A Yeah, the one's I've talked to.
Q Yeah, yeah. I think -- yeah. That's a whole 'nother thing. But there were 15 years between that shooting and when the courthouse -- when they moved into the new courthouse. So were things really kind of uptight for a while and then sort of settled?
A Well, what I remember is, yeah, you saw bailiffs around more often, and so all of a sudden you've got all these guys in their brown sport coats, their little clip-on badges and radio receiver in their ears walking around. So it wasn't that we had a bailiff in every courtroom all the time, but there would certainly be probably three or four of them prowling each courtroom floor of the courthouse. And, you know, you had panic buttons up there on the bench, and so --
Q Right, right. Oh, God. What a mess. All right. Let's see. You have to have more memorable war stories.
A Oh, yeah. Well, speaking of law enforcement, um, I had a case that went on for quite a while, went up to the Court of Appeals three times.
Q Oh, my God.
A And I lost every time in the Court of Appeals, but I won all the time at the trial court.
Q Weird.
A So it was strange. It was -- the case had been moved from Jefferson to Waukesha County, and it was a will contest, and the wife's children from her first marriage were convinced that my guy was an evildoer and unduly influenced her into making the will she did. And none of the judges in Waukesha County that ever heard the case agreed with them. But we had a hearing on one of my motions to dismiss, and the wife's children from the first marriage and, it turns out, the recently-divorced husband and one of the daughters were in court. And the hearing ended up in a decision going our way, kicking out their latest petition challenging the will.
My guy was a pretty feisty guy. Nice guy, but if you rub him the wrong way, look out. So the hearing's done. The judge has left the courtroom. I'm there with one of our associates. And I brought her along 'cause it's a probate case, this is how things work in probate court, and it's not crazy like family law. And so the hearing's done. The reporter and the judge's clerk are still there wrapping up and, as I said, the judge is gone. And the divorced husband of one of the daughters jumps up and starts yelling at my guy, "We know what you did. You know, we're gonna get you for this."
Q Why does he even care? He's divorced.
A Yeah. Why does he care? He was just kind of a bad-news character.
Q I mean, he wasn't going to get anything from it; was he?
A Not a nickel. So my guy starts yelling back at him. And so the judge's clerk's, you know, hitting the panic button. The family's attorney pulls his client out of there. Of course, the mad husband is not really his client. I'm telling him -- and the guy was a convicted felon -- get his convicted felon client out of here. And so he got 'em all out. And two minutes later, in come a couple of real live Waukesha County sheriffs deputies, not guys in brown blazers, and they've got the guns, the tear gas, the nightstick and everything. So my associate and I wound up giving statements to the Waukesha County sheriffs deputies. And driving back, I looked at her and I said, "You know, anybody can wind up having the cops brought into a family court hearing, but to do it in a probate court hearing, that's special."
Q That's great.
A So I became known as the fun guy to go to court with for a while after that one.
Q So did you ever have any clients that complained about you? Like, did you ever have any BAPR complaints?
A Yeah. There were a few. None of them ever resulted in discipline. But yeah, you get people who'd think it was unethical if you didn't win.
Q Right. Right. Wow. So you didn't have -- you didn't have anything that actually went to hearing or whatever?
A No.
Q Well, gosh. You're taking things too quick here. it's barely even 2:00. But do you have, like, favorite cases or cases that you remember with a lot of fondness or people that you've, I don't know, you've worked with for years and --
A Um, well, the case in Waukesha County, yeah, that went on for ten years. And it was memorable. As I said, I kept winning at the trial court and losing at the Court of Appeals.
Q Okay. Wait. Is that the same one you just described the hearing in?
A With the sheriffs deputies.
Q Yeah. So you won. So what happened in the Court of Appeals?
A It would get reversed. The motions I brought to dismiss were technical ones on the pleadings and procedural stuff, and 6basically they'd appeal it. The Court of Appeals would say, well, yeah, but, you know, you're entitled to have a hearing on the –
Q -- merits?
A -- on the merits of the case. And then the other side never pressed it. And the final hearing in front of I think by that time the fourth judge was on my motion to dismiss for failure to prosecute. And the judge granted that motion. That got appealed. And the Court of Appeals on I think that was the third one said -- if you read the decision, which is maybe ten pages long, for about eight pages you think I won, but then they said, well, you know, the earlier rulings of the trial court didn't warn these people that if they didn't stay at it that they could have it dismissed, so we're gonna send it back. And after that the case settled. So that one was a long -- around for a long time. The client basically was a good friend of mine as a result of the experience.
Q The guy that you said if you got on his bad side, look out?
A Yeah, yeah. He was a lawyer. And I had had one case against him, and I was -- he was a Jefferson County attorney and had a good reputation as being a tough litigator. And I was in Jefferson County representing the wife, and we were before a court commissioner, and this is back before we had all the various rules on child support where it's become so formulaic. Marc Dorfman was the court commissioner, and he was a great guy. And I'm making my arguments. The other guy is making his. And I'm sitting there thinking I don't believe this guy. He's straight out of the 19th century with these arguments he's making. I'm killing him. And so after some time, Commissioner Dorfman says he'd like to take a recess and he'd like to see counsel back in chambers.
Q So, wait. This is the guy that you're talking about you can't believe him, he's in the 19th century.
A Yeah. Later on I represent him in this probate.
Q Okay.
A So we go back in Dorfman's chambers, and I'm thinking great, he's gonna tell this guy to stop wasting his time and get this done. He looks at me and he said, "You know, before I took this job, I actually practiced a while in Dane County, and I was even a limited-term court commissioner covering a vacancy there, so," he says, "I know a good Dane County argument when I hear one." And he said, "You're making good Dane County arguments."
Q But they're not good for Jefferson County.
A "But you're in Jefferson County," exactly.
Q Wow.
A That changed my perspective on that one.
Q So when you say 19th century arguments, what do you mean?
A Um, as I said, it was before we were all tied up with the child support formulas, so it was more of a freewheeling thing when you go in there, and I think I was probably arguing for, um, some temporary maintenance for her.
Q Oh. Okay.
A Okay. Good Dane County argument, but I was in Jefferson County. And, um, after that, Commissioner Dorfman was on the Family Law Section Listserv, and we had this banter going on. He would -- he would reply to some of these Listserv questions, and then he'd send me a private e-mail about, "I suppose you think I should just shut up because I'm a county employee." And I'd send back, "Yeah, I think you should." So we had a fun relationship doing that. But the story got told at his memorial service.
Q That story?
A This story about, "Yes, but you're in Jefferson County now."
Q Uh-huh (affirmative). So are we talking, like, you were making sort of the feministic --
A Sort of the feminist, yeah –
Q -- woman deserves maintenance because she sacrificed her life for your --
A Yeah.
Q But he actually favored the husband in that?
A Yeah.
Q Wow! But -- and so it hadn't -- it wasn't the law then, I guess, or -- it was that kind of -- Was it a change in attitudes that --
A Well, it was a change in attitudes 'cause, yeah, you've got -- you know, the problem with family law is -- not problem, but I guess it's a fact, there's a fair amount of room for discretion.
Q But is that -- has the law changed a lot, or has it been really the attitudes?
A It's I think more the attitudes than anything. Even within what we have now with the formula and whatnot, yeah, there's still room for a good amount of just additional discretion, so --
Q I mean, but that's with respect to child support. As far as maintenance is concerned –
A Maintenance was -- yeah, maintenance is the great gray area. And I had -- you asked for another war story.
Q As many as you can remember.
A I represented an attorney who didn't do family law, and he was making a good income. His wife was making an even better income, but she had some emotional problems, and so she kept getting fired from six-figure-annual-income jobs.
Q Wow!
A And so he was worried about getting nailed for maintenance. And so he'd asked me about it, and I'd tell him, well, you got this factor goes for her, this factor goes for you. You know, judges have a lot of discretion. We'll just go in there and put in the best case we can and see what happens, but I feel okay about it.
So one Monday morning, he calls me and he said, “No offense, Tom, but over the weekend I thought, you know, I'm a lawyer too." And he was a big Badger football fan, and he said, "The Badgers were on the road, so I went down to the law library," and, he said, "I've read every case on maintenance in Wisconsin."
I said, "Oh, really? And what did you get from it?" And he said, "Holy shit, anything the judge does is okay as long as he explains it." And I said, "Yeah, that's what I've been telling you all along." So yeah, we finally got that one put away too.
Q So how did it go?
A No maintenance. It was a nice property division. And she -- I mean, things are always happening, you know, so people are moving on in their lives. And she had been fired from a very good job, which had the potential for being even better, and found another job out of state. So all of a sudden, she wasn't so interested in pushing this thing.
Q Do you think judges who were sitting, I don't know, I suppose who've probably retired by now, but who were sitting back then, do you think their attitudes changed? I mean, do you think they were able to evolve? Or did they -- did they just end up getting sort of drummed out?
A I guess the honest answer is yes. If you start back with the bench we had when I started practicing, 1975, yeah, I think if those guys were back now, seeing what happened, they'd be amazed. If you're talking about the judges that came in later, Nowakowski, Frankel, Schwartz, that generation, yeah, I think they started in a very different place, and they've evolved far beyond that by the time their careers were over.
Q I worked for Judge Schwartz too for a long time. I mean, when I think about -- I don't know, this is sort of on the same topic, but when I think about Judge Fiedler, for whom I also worked for many years, him overturning himself in some criminal case, it was a murder case. Armstong comes -- the name Armstrong.
A Dwight Armstrong?
Q Not Dwight.
A Or Carlton?
Q I don't think so. Maybe it was --
A Oh. Ted Armstrong.
Q Yeah. It was a homicide case. He had a twin or something crazy like that. Anyway, the judge actually reversed a ruling he had made, like, I don't know, years before. And I just remember how incredibly impressed with him I was for that and how courageous that was to be able to admit he was wrong. Did you encounter people and judges who could have done something like that or --
A Um --
Q -- what did you think about that?
A I didn't have this experience directly, but one of our associates did. She had a hearing with Judge Flanagan. It was a fight over whether the other side had, in essence, abandoned an easement, and she, I mean, she was trying it. She'd come and pick my brain on issues now and then. But it was basically her case. And so she goes in on the motion hearing in front of Flanagan and gets a ruling that was somewhere between a victory and a loss. It could have been worse, but she was certainly hoping for better. And so we were talking about how to make the most of it. After she came back, she was pretty disappointed. About three, four days later, she gets a new decision from Judge Flanagan saying, "You know, I've thought it over," and she was right.
Q Wow.
A And so, yeah.
Q So, wait. So which side was she representing?
A She was representing the neighbor, who was arguing that the other neighbor had basically abandoned this easement that they had. They'd built an addition on to the building, which if you read the easement, the easement would have allowed people to get to the back of the building, but the way the addition was built, it blocked the back off –
Q Oh, I see.
A -- from the easement, so --
Q Oh, I see. So had they gotten permission from –
A No. They didn't need permission. The addition was built on their own property and everything, but it sort of destroyed the easement.
Q Destroyed the easement. Okay.
A But they continued to use it in an obnoxious way that our client didn't like. And I've certainly had judges -- I suppose if you're a judge, you can't win on this -- who evolved over the course of a case and, you know, were going in one direction early on and then went in the other the other way. And, I mean, you can get carried away with that. And I've had some of that experience.
Q What do you mean? So they ended up changing their minds, like, 180 degrees or something?
A Not necessarily 180 degrees, but over time taking in who these people are and what's really going on and, you know, basically at some point saying, "You know, fella, I've given you the benefit of the doubt several times here, and every time I did, basically, you did something that made me wish I hadn't. So that's it." And yeah, that -- I think I respect that, if you can be up there on the bench, have all that power -and let's face it, you need an ego to be there telling people what's going to happen with their lives and whatnot. And to be able to step back and say, "Yeah, I got it wrong, I'm gonna do something different," yeah, you have to admire that.
Q It's so rare.
A The human tendency would be to either stick to your bad position or, you know, kind of --
Q Well, we're seeing that happen in so many cases of prosecutors who've put people away and put them on death row, and it's just (unintelligible).
A Yeah, it's, like, the game's over and I won and can't go back.
Q Even in the face of overwhelming evidence. But -- so that kind of thing I'm always interested in hearing about. So did you ever argue a case before the Supreme Court?
A State Supreme Court I did, yeah.
Q Yeah? What was that?
A That was a probate case. I represented the estate of a guy who owned a radio station that's long gone that was in Madison, and he had gotten into a contract with this company in Tennessee that would do little commercial jingles, station break things for them, that sort of stuff, make commercials for their customers. And in return, they got paid for it, but they also were given so many minutes of airtime so that they could sell the minutes to other –
Q A Tennessee firm?
A Right.
Q Okay.
A And so our guy dies. The probate statute at the time said you had to -- the notice you had to give to creditors was publication in a newspaper, period.
Q Okay.
A And so that's what we did. The estate was kind of involved. Warren Harris was handling it, so this was --
Q A long time ago?
A Yeah, very late seventies. And I think it was about a year or so after he died, this Tennessee company files a claim in his estate. And here I am, I don't know, what, six, seven years out of law school, not even that at that point, probably four or five, and the Tennessee company hires none other than Percy Julian to represent them. So I object to the claim because it was filed late. Judge Pekowsky ruled in my favor. I felt pretty good about that. Percy Julian, I think, tries to take some advantage of me being basically a baby lawyer at the time, and he said, "Well, this isn't over yet. We're going to the Court of Appeals." And I thought the Court of Appeals was a really exotic, never-to-be-seen thing. But he filed the appeal. So I get researching it, and I talked to the future Mayor Sensenbrenner's wife who was over at the Justice Department at the time.
Q Mary Ellen?
A Mary Ellen. And she said, "You need to know about this one case, Kenosha versus Dosemagen, which held that you need to serve the Attorney General on any appeal involving the constitutionality of a statute”, which is what Percy Julian was arguing.
Q Oh, the statute that said you only have to give notice through the newspaper.
A Through the newspaper.
Q Okay. Uh-huh (affirmative).
A And so when it came time to file my reply brief, I cited that and said this case should be dismissed, they didn't serve the Attorney General. The Court of Appeals agreed with me. And I thought that was the end of it. Then it was, well, we're going to the Wisconsin Supreme Court. And I thought, well, that's way, way unlikely. But they filed a petition for review and it was granted. And apparently, the Tennessee company was unhappy with the results at that time, and so they hired Louis R. Lucas, from Memphis, as their attorney. I looked him up on Martindale-Hubbell, and he'd been a U.S. attorney in the Northern District of Alabama during the Civil Rights Movement, so this guy was a big gun. And so he did the argument for them in front of the Wisconsin Supreme Court. And I won on that one.
Q Wow! So, okay. So are you telling more about that story? 'Cause I have questions for you.
A Yeah.
Q Okay. Go ahead.
A You have to remember, I mean, it was a such a big deal for me being in the Wisconsin Supreme Court.
Q Yeah. No kidding.
A Here I am maybe seven years out of law school.
Q Who wrote the decision?
A I want to say it was Chief Justice Beilfuss. I mean, I remember he was the most serious-looking guy I'd ever seen. He reminded me of Paper Chase with –
Q Oh, John Houseman?
A Yeah.
Q Yeah, yeah.
A Then it turned out later he had open heart surgery three or four days after my oral argument, so he was preoccupied. And then nearly-Justice Abrahamson was on the court too, and I had cited a case that she'd argued and won before she went on the bench. And so she asked me questions about that. But in the middle of all of this, the whole court for a minute or two seemed really distracted. And I was, like, "What did I do wrong?" I sit down and look, and I realize that there was some probably homeless character who had wandered in off the street. He had dropped his ice cream cone on the court's brand-new carpeting.
Q Oh, my God.
A So I won that one. And so that was my one Wisconsin Supreme Court case. And then ten or so years later, a case from Oklahoma on the same issue went to the U.S. Supreme Court, and so my case is cited in the footnote in the U.S. Supreme Court case as being one of the cases they're overruling.
Q Okay. So the overruling -- they overruled it.
A They overruled -- they overruled -- the Oklahoma statute was basically the same as Wisconsin's, and the U.S. Supreme Court said, “No, if you know of the existence of a creditor, advertising the notice isn't good enough. You gotta give personal notice of the deadline for filing the claim.” And, of course, our statutes have since been rewritten to comply with that.
Q Right. But so how does the notice -- I mean, our notice of claims statute, that's not the same thing. That would be from some kind of liability as opposed to now we're talking probate.
A Right.
Q Okay. Because, you know, things get thrown out if it's the notice of claims statute and people don't comply with that.
A Right.
Q But that involves a whole different -- yeah, okay. All right. That just came to my mind. But that's pretty exciting 'cause you were pretty, like you said --
A Yeah.
Q -- not long out of law school. And so did you -- did that have any benefit other than the fact that you won the case? Did that have any effect on your career?
A Not really, except anytime there was some probate with litigation in it, not till the last few years when my partner Anna Loess had been getting some gems, yeah, I wound up doing it.
Q Cool. So it sounds like you've generally been pretty successful in the things you've work on?
A I like to think so most of the time, yeah.
Q Yeah. Did you lose any big --
A Um, I had one case, it was a real long, involved case that wound up as a five-week-long jury trial in front of Judge Krueger.
Q Wow!
A And --
Q Wow! That's really rare.
A That's really rare. And I -- along the way they brought in more co-counsel, so it was Jim Herrick from Axley Brynelson, John Jenswold from the old Jenswold Studt firm, and so those guys were way at the end of their careers and had done tons of insurance defense work. And sitting there being on their side trying this case with them, 'cause we had multiple defendants, it was like going back to law school and taking a trial advocacy course. They were just, you know, you could see that, okay, they were old, but, boy, they still -- they still knew their stuff, and, you know --
Q What was the defendant? What was the case?
A Um, there was -- the essence of it was the plaintiff was claiming she was wrongfully discharged from her job. And that got us into all sorts of other issues. And so we're talking 1988 here, five-week jury trial.
Q That's incredible!
A And it wound up with a verdict in the plaintiff's favor of $125,000.
Q Which back then was a fair amount of money.
A Well, compared to what she was after, what all the allegations were that we didn't get into, it wasn't much. And I had told the clients that, you know, if they wanted to get rid of this thing, I think it was going to cost $100,000. And they weren't willing to pay it, so we went to trial.
And one of -- Paul Schwarzenbart, who was then with Axley Brynelson, who's one of the sharpest people I ever saw -- another story about him coming up afterwards -- he said, "You know," he said, "what the verdict shows is they didn't believe her when she said he did, and they didn't believe him when he said he didn't." And that's really --
Q They were splitting the difference, kind of?
A Right. It was sort of like a pox on both of your houses, 'cause, you know, for five weeks $125,000 wasn't much.
Q Did they have a lot of witnesses or --
A Yeah. Tons of witnesses. And they got all sorts of issues.
Q Wow!
A And there were -- one of the issues -- I'll spare you the gorier details –
Q Please don't, but –
A Don't?
Q No. It's all the better.
A Okay. There was a claim that the plaintiff had been raped by an employee.
Q Oh, boy. So there was -- it was respondent superior.
A Yeah. And so she pinned it down to a specific date and time. And that's -- you know, part of my education from Herrick and Jenswold, you know, they got after the phone records, and her husband was out of town on a business trip at the time, and the phone records didn't jibe with her description. And then the employee in question said, you know, who, of course, was denying that it ever happened, all of a sudden a light went on for him and he said, "Well, we were in this gourmet potluck club together with a bunch of other people," and he said, "We were still in it together after this supposed rape occurred." So over the weekend, or that night, he goes home and he finds -- this is pre-Internet days, so in all this stuff, mail, he still had the menu from one of these potluck gourmet get-togethers, which was a matter of a few weeks after the supposed rape, and she had handwritten -- I'll always remember this -- on the menu, "Make the dilly beans the night before so they can sit in the brine overnight."
And so I got to cross-exam her on that. And in the education from Herrick and Jenswold, they said you gotta do this the last thing on Friday, 'cause we want the jury to go home over the weekend with this in their minds that we nailed her with a lie. And so, yeah, I still have the transcript from the great dilly bean cross-examination.
Q Dilly bean. I don't even know what a dilly bean is.
A Just a dill bean. And so that's how we ended the day on Friday with, you know, my going through this gourmet potluck club and dilly bean recipe with her, which, you know, "That's what you're telling this guy, you're letting him back in his house, but he had to make sure to make the dilly beans the night before a couple weeks after he raped you, etc." And so the story we heard from somebody who knew her was that she had torn the house apart over the weekend looking for more of these recipe things 'cause she knew we had to be wrong. And we weren't. And the other thing that happened over the weekend was either Herrick or Jenswold said, "You know, she's gonna claim that this was a different year." And I think the problem was we didn't have a year on this thing. It just had the Saturday, August whatever. So over the weekend, we got the almanac, and sure enough, on Monday morning on redirect, she's claiming that we're a year off. And so we pulled out the almanac and pinned it down to the year that this supposedly happened.
Q And how did the almanac, what was the connection?
A Because it had a table, so you could look at whatever date it was, August 25th, and you could pin down what year it was.
Q By the day of the week?
A Yeah.
Q Oh, my goodness.
A The other story from that case --
Q Wow!
A -- is a deposition of -- here we go – her proctologist.
Q Oh, my goodness.
A And he had done a hemorrhoidectomy on her.
Q Wait. The proctologist had?
A Yeah, just before this rape. And so Paul Schwarzenbart, who was -- Paul and I had this real good working relationship divvying up who was responsible for what, 'cause the whole time we had this one pocketbook paying for all this. So he was supposed to depose the proctologist. And he put together just this brilliant series of questions for him. Schwarzenbart must have spent hours in medical books to put this together. The proctologist was Gordon Marlow, who my own doctor told me, "All us docs go to him for our hemorrhoidectomies. He's the best."
Q Okay.
A And Paul, I don't know, got behind in his work or something and didn't really give Marlow as much advance notice as he should have, and he gets a subpoena served on Marlow late on Friday, or maybe Thursday afternoon. And so we get to the deposition, and Marlow is growling at him, saying that, you know, "Your process server hit me with this just as I was backing my sailboat out of the driveway. My wife and I were about to go to Door County for a long weekend, and here I am Monday sitting in your deposition." And like I said, Schwarzenbart's questions were just real thorough and brilliant. But Marlow has been in court a million times and was way smart, and he was giving Schwarzenbart absolutely nothing in his answers. And so finally, Paul --
Q Wait. If this was before -- the hemorrhoidectomy was before the rape, why would it matter?
A Think about it.
Q Because -- oh, she wouldn't have been able to be sexual or --
A No. She claimed she had been anally raped.
Q After having a –
A Yeah. After, yeah.
Q Okay.
A And so Marlow is explaining all this, or --
Q So, in other words, she would have been in, like, supreme pain or --
A Yeah.
Q -- or, okay. It wouldn't have happened?
A Yeah. So Marlow was just a brilliant guy, but brilliantly unhelpful. And so Paul got nothing out of the deposition. Takes a break, and I thought, great, he's gonna go down the hallway, talk to, you know, Tim Fenner, John Mitby, and he'll get some pointers and we'll be okay, 'cause I wasn't prepared to do a deposition of a proctologist.
Q Right.
A So Paul comes back, and I'm saying, "Great, he'll get this fixed now." And he says, "No more questions." So everybody looks at me and says, "Do you have any questions?" And I thought, "Oh, God. We're screwed." So I come up with some half-baked, "Yeah, how do these hemorrhoidectomy things kind of work" question, and it's just, compared to Schwarzenbart's questions, really bad.
Q Right.
A But what had happened during the break, everybody left except for Marlow and I. And he is sitting there, and I notice he's got a copy of Naval History magazine with him.
Q Oh. So you chat him up?
A Yeah, I chat him up. And military history from World War II is a big interest of mine, and so I got a pretty good handle on World War II in the Pacific. So I start talking to him. It turns out he'd been a fighter pilot in the Navy in World War II. So we had this great conversation. And Schwarzenbart comes back, "No more questions." And so I come up with some half-baked thing, and he proceeds to deliver a medical school lecture that goes on for, like --
Q They're all looking at you, like, what?
A Yeah. And it goes on for, like, about five minutes, and it's just this brilliant discussion of the whole thing.
Q Oh, my God.
A So I'm feeling pretty good, and I ask another equally bad question, and I get another Nobel Prize lecture out of him. So there are three or four questions like that, and by the time he was done, the plaintiff's attorney was just totally depressed. He had been so happy after the first go-around.
Q Right.
A And so Paul looks at me and said, "How did you do that?" And I said, "You just have to know how to ask questions."
Q Oh, my God! Did you ever explain to him what happened?
A Well, yeah. I told him but for him, he'd be up in Door County on a sailboat right now.
Q Oh, my God! So did it help you?
A Yeah. It kind of -- yeah. That whole part of the case really didn't go anywhere, but it was part of the they didn't believe her when she said he did and didn't believe him when --
Q Right. Okay. Do you have -- I mean, what did you think? I mean, do you ever really think about whether or not your client in a situation like that –
A Well, he wasn't my client, but yeah, my client was gonna get stuck with it, essentially. And who knows? I'm inclined to say it didn't happen. But, yeah. Who knows?
Q I mean, you don't have to worry about saying that to me 'cause I'm -- you know, I'm not, like, you know, right, dumb or jaded like that.
A Yeah. On the other hand, you know, I can't look you in the eye and tell you it didn't either.
Q Right, right. Well, do you think she was trying to get something out of the whole situation?
A Yeah. She --
Q Oh. Because she had been fired?
A Yeah.
Q Okay.
A It's a whole long story behind that. But yeah, I think anybody would have fired her under the circumstances.
Q I just can't see five weeks of testimony, or five weeks of trial.
A It was gruesome.
Q I mean, that's almost never happened in Dane County.
A Yeah.
Q You know, even some of the bigger criminal trials wouldn't last more than two weeks. And you just never hear of the long -- I mean, when I hear these things, like about trials around the country and the ones that are doing the -- where Court TV gets involved and they go on for weeks. Weeks. And I'm, like, what's going on all that time?
A Aaron Hernandez's thing, that was what? A month long in Boston?
Q Was it a month?
A Yeah. At least, I think, yeah. Yeah, I have trouble with that too. Of course, I don't do criminal defense work.
Q Yeah. It's just mind-boggling. And when -- and just knowing what it's like to sit, I mean, I wasn't a juror for -- I've never actually been a juror, unfortunately. It's something I would like to do. But when I first started clerking, I sat in on a sexual predator prosecution, and this was back in 2000. It was fairly new, the law was pretty new at that point. And I listened to the State's medical expert, and he droned on for hours, it seemed like hours. And if I had been -- I mean, there really was no way I would have been able to stay awake unless I had taken notes. I mean, it was so boring. And I just thought, oh, my God, I can't believe they're sitting there and not falling asleep, you know. I mean, those were the kinds of -- I mean, all I wanted in the world was to lay down my head. So I just, you know, I think about five weeks of -- I don't know. Maybe that one wouldn't have been so boring 'cause it would have been, like, there would be a more interesting -- but you'd think a sex predator case would be interesting, but, you know, with the State's experts.
A Yeah. You got some expert on the stand talking about sliding fibers under the microscope.
A Well, or in this case it was about, you know, those studies, the -- I forgot what they're called, you know, the statistical studies about predicting future behavior based on previous and all that kind of thing, you know, and it's just --
Q Yeah.
A - boring as all hell.
Q This trial, of course, you had a five-week jury trial, the whole courthouse knows about it. And Judge Torphy stopped in because we had Leigh Roberts from the UW --
A Oh. Right.
Q -- Psychiatry Department testifying. Okay. And was this before or after he'd been --
A Long before his problems.
Q Okay. Uh-huh (affirmative).
A And so he was the greatest forensic psychiatrist -- right, right -- in the history of Dane County at that point. And I was talking with Judge Torphy during the break. It wasn't his case, but he just wanted to see Roberts. And he said, "Yeah, Roberts is the greatest." He said, "You know, but I had him in this one case where his report said one thing and his direct testimony said another." And he said, "He looked at it and the report said apples, his testimony said oranges." So, he said, "The defense attorney made the mistake of on cross-examination saying, “Dr. Roberts, how can you say in your report it was apples and how can you say on the stand in your testimony it was oranges and contradict yourself like that?'" And he said 45 minutes later, Roberts ended his answer by saying, "And that's why I didn't contradict myself."
Q Forty-five minutes later?
A He said the jury was sitting there spellbound during the whole thing.
Q Wow! Wow! Well, let's see. So I guess basically, the idea is the evolution and change in the practice of law. So over the years that you've been practicing, what things stand out in your mind as to changes you've seen just in the practice?
A Um, I think from the small firm perspective, more and more specialization. In the past 15 years or so I did almost exclusively family law. When I started out, I was out there doing probate, doing residential real estate, so you're going to closings, you're meeting people, you're going to probate court, getting to know the staff there, getting a guardian ad litem in on an estate, you know, many other people, and so you got to know a lot a lot of people. You got to get some background on many different areas. And you don't see that anymore.
Q Right.
A And I remember I think it was one of the court reporter companies had this legal-size sheet, it was, I don't know, four columns, names and phone numbers of every attorney in Dane County. You'd have it on your pull-out of your desk.
Q Yeah. They had it when I was there too.
A Yeah. And that was it. You couldn't do that anymore.
Q Right. Right.
A So you don't know as wide a range of people as you used to.
Q It's not as collegial.
A Yeah.
Q It's gotta have an effect.
A It's collegial, but a smaller group of people. There's probably about two dozen family law lawyers, and they're pretty collegial. There's obviously some personalities out there. That's one thing. I think when I started, judges had a lot more private practice background going on the bench and were, whatever you want to say, more rounded compared to now where we tend to get so many from the Justice Department or the DA's Office maybe, and so they've gotta ramp up -- you know, if it's a family law complaint here, you know, you get somebody that –
Q That doesn't know family law.
A -- that doesn't know family law, and there you are. You know, had you been back there in front of Stu Schwartz or Mike Nowakowski or Dan Moeser, they knew you, and they knew the other attorney, and they'd seen this kind of case before, and they knew what was going on and had a handle. But you get somebody who you never knew in private practice, never saw you before, doesn't know the area, and yeah, it becomes hard because --
Q It makes you have to work harder.
A You work harder. They don't know you, and they don't know the other attorney. And so there's – certainly I've had times where I've been in court with, you know, some of the older judges and attorneys I knew, and it was a lot going on, I guess, under the surface. We all understood each other. We knew what was going on. We knew what we were arguing, what we weren't arguing. And judges were tuned in to those nuances. And you don't have that anymore, and you don't have the, you know, walk down the hallway and bump into Dan Moeser who's going to tell you a couple of jokes situation. Or you don't go into the judge's chambers and schmooze the clerk and maybe the judge comes out. And so all that's gone, and so it's so sterile now and remote. And this figure in a robe comes in from the back of the room there behind a false wall and sits down, and there you are.
Q I'm trying to think if there are good things about that.
A Well, I think the good thing about it is I think the level of professionalism is higher.
Q Okay.
A There's ex parte stuff that, as I always, when I was doing presentations for the State Bar, especially the young lawyers in GAL stuff, I always warned them, "Yeah, I know you know what the rules say, but, you know, who's gonna get you in trouble? It's gonna be your judge." And yeah, you go back to the old days, the old courthouse, and yeah, there'd be ex parte stuff. And, I mean, it's not as sinister as it would be these days. But that sort of thing happened.
Q But when you say the judge isn't gonna -- is gonna be the one to get you, what do you mean by that?
A I got asked to do a guardian ad litem appointment on a post-judgment divorce, and I go up to the judge's chambers in the old courthouse. I'm sitting there with the file. And, you know, for one thing, the judge would call you and tell you, "I'd like you to take this case, here's what it's all about." So I think the judges, by and large, made the effort to be as objective as they could, but, you know, you could kind of pick up on some –
Q Well, they wouldn't have called you if they didn't think –
A Yeah. But yeah, you're maybe getting some insights in the judicial attitudes towards one side or the other or whatever. And so I'm sitting there looking at the file, and it was a situation where husband had legal custody and primary placement of a teen-age boy, mom's back asking to get sole legal custody and primary placement. And so I'm pawing through the file. The judge walks in and says, "Oh, good, you're taking the case," and proceeds to say, "That kid's 17 years old. He's been a real problem. Dad's done the best he can. I've seen him and the kid in juvenile court any number of times. Dad's trying hard. It's a difficult kid. Mom's nuts."
Q Oh, great.
A "So keep this case out of my courtroom."
Q Whoa! Oh, my God!
A And so I did.
Q Wow!
A Yeah.
Q Wow!
A So, yeah, that stuff's gone now, and it's on the whole a good thing. But, you know, there's --
Q Well, not necessarily.
A Not necessarily either. Yeah. You know, it's not like the judge was coming in saying, "Well, here's what you're supposed to do." Well, I guess in this case, that's the message I was getting. But it wasn't -- it was appropriate. This woman didn't have a prayer in this case, and it was a waste of time. Her motion was just insane.
Q Right. Why would she want to? Well, the thing -- okay. 'Cause when I did one of these other interviews with somebody who was much, I think, older than you are and of a different ilk, I mean, you're -- I think of you as my generation, essentially, because you are. You're like the age of my older brother, and he seemed like more, sort of more in line with not my parents, but a different generation, although he's only just now retiring. But -- and so he was talking about, like, for instance, when he started out it was more, like, in the sixties, I think, and so he just saw a level of collegiality.
He had clerked for the Supreme Court, for instance, or somebody on the Supreme Court, and he saw a level of collegially there that he knows isn't there anymore. And he would start talking about it, and I knew that he didn't mean it in a negative -- with a negative connotation, but he was talking about the good ol' days kind of thing. And I'm sitting there thinking about, you know, well, yeah, the good ol' days were -- there's a lot to be said for them, but -- but if you were a woman or you were a different color or, you know, you just didn't get to participate.
A Right.
Q And, you know, so some of the people who probably, you know, were some -- like the people that you worked with or that you saw making the right decisions maybe still didn't want to have full participation with other, you know, society, parts of the society. And so it's a real -- I don't know. I guess it's a real, um, balance or whatever.
A Yeah, 'cause it's stuff that, yeah, today would be, you know, sanctioned by the Judicial Commission and OLR. But those were different times. Things happened differently.
Q And if you've got people who are using their discretion wisely --
A Right.
Q -- then, you know, then those -- that flexibility is good.
A Right. That was sort of like going back to the Frank Tuerkheimer story, even though he wasn't a judge at the time, but he's basically telling you in a nice way, "Don't turn this," as he said, "into a federal case, there's nothing there," you know, and so –
Q He's giving you advice.
A Yeah. You know, within some parameters, it was okay.
Q Yeah, yeah. It's interesting. Okay. I don't know. I guess we're -- we can be done, unless you have anything you feel like adding.
A It's been an hour and a half on 40 years, so –
Q Yeah. So I'm supposed to say thank you for taking the time and sharing your experiences with me and future readers. We will have a transcript prepared of this interview and send it to you for proofing before it becomes part of our Oral History Project. And unless you have something to add, I'll note that the time - -I guess I was supposed to note the time earlier. It's 2:36, and I'll shut off the recording.