“The times, they are a changing.”
And an attorney must change with them, or at least, he has to change his law practice sometimes to accommodate the changes. It is something Milwaukee attorney Curry First, of First, Albrecht & Blondis, S.C., has done several times over the years.
After graduating from law school in 1968, he practiced as a staff attorney for a Quaker peace group in Pennsylvania, representing conscientious objectors to the Vietnam War.
In 1970, he joined a private firm in Milwaukee, and continued representing conscientious objectors. The draft ended in 1973, but the criminal defense work representing those prosecuted under the draft laws continued for a couple more years.
After the war and draft ended, the country saw the heyday of civil rights litigation involving police brutality.
Milwaukee saw a great deal of it in the late 1970s and early 1980s: the murder of Daniel Bell back in the 1950s came to light; James Schomperlen was beaten by police with flashlights; and Ernest Lacy died of asphyxiation in police custody, all within a short period of time.
First was involved in those cases, as well as two Wisconsin cases that made it all the way to the U.S. Supreme Court: Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302 (1988)(federal civil rights cases are not subject to state notice of claim rules); and DeShaney v. Winnebago County, 489 U.S. 189, 109 S.Ct. 998 (1989)(a county is not liable for placing a foster child in abusive home).
Over time, however, police misconduct cases became increasingly difficult to prove to a jury, and plaintiffs’ attorneys had to become increasingly selective about which cases they took.
Fortunately, First had also developed a practice in employment law, and as the times changed, his employment practice grew to approximately 85 percent of his cases.
However, employment law is changing, too, according to First. Recently, he had a jury verdict reversed on appeal in the Seventh Circuit, which held that summary judgment should have been granted.
“The case is indicative. You can win in front of a jury, but can lose when the court of appeals says the case should not have gone to the jury,” First said.
First estimates that, in more than 50 percent of Title VII cases, summary judgment is granted in favor of the defendant.
“It makes it tough to sustain a practice, because the defendant has the upper hand,” First said. “The large likelihood of the defendant winning on summary judgment results in a discount in the offers during settlement negotiations. For any attorney, representing a plaintiff or a defendant, summary judgment is a huge issue in every case. The plaintiff can lose, without ever getting his day in court before a jury.”
First noticed changes in the judiciary during the first Bush administration. “It’s not that the Republican-appointed judges are anti-plaintiff,” he says, “but they have a pro-business ethos and outlook.”