Everybody Likes Don
Plaintiff’s lawyer Don Prachthauser is true and prepared
Published in 2010 Wisconsin Super Lawyers Magazine on November 15, 2010
Ask most trial attorneys to name their strengths, and you’ve got a sure conversation starter.
Ask the same thing of Don Prachthauser—the silver-haired, 59-year-old Milwaukee plaintiff’s attorney, and name partner at Murphy & Prachthauser—and he gives you a long, thoughtful look, followed by an equally long silence. You get the feeling the question has made him uncomfortable.
When the silence ends, Prachthauser tells you there are any number of attorneys in Milwaukee who are better than he is at the various components of trying a case. Then he describes how he feels after a winning verdict.
“The emotion I experience is relief,” he says. “I know that I must have done my job reasonably well. But I still don’t know that I’m good at it.”
This doesn’t come off as false modesty. Prachthauser isn’t slick or brash. Instead, he seems to be that rarity: a man without artifice.
“Don is very trustworthy,” says Kevin Kukor, a partner in Prachthauser’s firm and one of his law school classmates. “If Don says something to another lawyer, they trust that his word is good. That comes across in front of a jury.”
Todd Weir, a partner at Otjen, Van Ert & Weir, who has known Prachthauser for more than 25 years and has tried at least three cases against him, agrees. “He is as nice a man inside and outside the courtroom as you could ever meet. What you see is what you get.”
That’s one part of the answer Prachthauser can’t answer: why he’s good at what he does.
“Everybody likes Don,” Kukor says. “He’s very true.”
Prachthauser is the only child of World War II Army veterans who were 40 when he was born. Their shared military background (his father was a private, his mom was a captain) was a source of humor in the Prachthauser home in Milwaukee’s Sherman Park neighborhood. “Go ask your mother,” Prachthauser’s father would often say. “She was an officer.”
A salesman with a food company, Prachthauser’s father, like so many of his generation, wanted his son to have a better life. Thus the only piece of career advice Prachthauser ever received from his father was: “Don’t be a salesman.”
He didn’t want to be. He wanted to be an attorney because the Founding Fathers fascinated him in grade school, and because he was inspired by Atticus Finch after reading To Kill a Mockingbird in eighth grade.
At the University of Wisconsin-Madison, Prachthauser double-majored in psychology and political science, and graduated with distinction in 1972. Madison is also where he met his wife, whom he married shortly after getting his degree.
Out of college and planning to attend law school, Prachthauser took an interim job as an insurance claims adjuster, and for the first time he found himself interacting with lawyers on a professional level. It was less inspiring than Atticus Finch.
“Then I wasn’t so sure [about the law],” he says. “There were a few months in the wilderness.”
After briefly considering the alternatives, including medical school, he enrolled at Marquette University Law School, where things didn’t get better. The freewheeling intellectual discourse of Madison in the late 1960s was replaced by a Jesuit institution and the decidedly less exciting rigors of legal education. During one class, the professor called on Prachthauser, who said that he didn’t have much to add to the conversation. He was asked to speak anyway. Afterward the instructor told him: “You were right to feel as if you had nothing to add to the discussion.”
However, after graduation, when Prachthauser took an in-house position with an insurance company, he won a few cases, continued to learn new things, and concluded that he’d made a good career choice. This was also the job that put him before a jury for the first time. As he addressed the jurors, Prachthauser had the following epiphany: He was selling. Exactly what his father told him not to do.
“I slowly came to realize that I had more in common with my father than I ever [thought],” he says.
The turning point in Prachthauser’s career wasn’t a single trial or a big verdict. It was another lawyer.
In 1980, Jim Murphy, a plaintiff’s attorney 18 years his senior, approached Prachthauser about joining his firm. Prachthauser did, and won the first case he worked on under Murphy.
“He really believed in me,” Prachthauser says. Even when he lost, Prachthauser remembers, Murphy would come to him and say, “Nobody could have won that case.”
“Left to my own devices, I might have stayed in the background,” Prachthauser adds. “He was the guy who pushed me. My life would have been different without him.”
Despite their age difference, the two men became close friends. They had lunch together nearly every day and even went on some golf trips together. (Prachthauser has a 10 handicap.) When Murphy died three years ago, Prachthauser was left with a void. “You were the most important person he ever met,” Prachthauser says. “That’s how he approached life.”
That lesson has been passed on. In conversation, Prachthauser would much rather talk about you than himself.
If you were to compare Prachthauser’s formula for success to anybody in golf—which Prachthauser played in high school—it would be Ben Hogan, the soft-spoken Texan whose swing was technically perfect and eerily repeatable. When asked about the secret to that swing, Hogan used to reply, cryptically, that he “dug it out of the dirt.” What he meant was that he’d practiced until it was perfect.
With Prachthauser, the common refrain you hear from colleagues and opponents is just how prepared he is for each trial. “He’s always prepared on every issue in his client’s case,” Weir says.
That, however, doesn’t capture the way in which he digs his cases out of the dirt.
One Saturday morning in the early 1990s, for example, an elderly man came into Prachthauser’s office. The man explained that he had lost nearly all of his vision because of untreated glaucoma and that his eye doctor of 20 years had never recommended surgery. The ophthalmologist, however, showed Prachthauser several years worth of 3x5 note cards on which he’d recorded the details of every visit. On several of them, there was a notation explaining that the patient didn’t want surgery.
Prachthauser took those cards to a document examiner, who said that the notes about surgery were written more carefully than the rest of the notes. She then advised him to have an ink chemist in Janesville look at them, which he did. A lab in California makes roughly 80 percent of the ink used in American pens, and, like wine, each year is distinct, and contains a chemical marker so it can be identified at a later date. The ink chemist in Janesville was able to determine that all of the doctor’s notes indicating the patient’s reluctance to have surgery were written with the same ink, and from a batch of ink manufactured after the client had seen the ophthalmologist.
The case was settled out of court and the physician ultimately surrendered his license.
In another medical malpractice case, Prachthauser represented the family of a man who was admitted to the hospital because of a bowel obstruction. He died there while the doctor was determining whether or not to use surgery. The central question was whether the doctor should have inserted a nasal gastric tube during that interim—which he hadn’t.
The defense brought to the stand a renowned surgeon, who had written the surgical manual on this type of case, to explain that a nasal gastric tube wasn’t required under the circumstances. On cross, Prachthauser pulled out the expert’s surgical manual, in which the surgeon made it clear that a nasal gastric tube was, in fact, essential.
The surgeon tried to recover. “That’s an old book,” he said. “I’m glad to see that people are still reading it.”
Prachthauser won a verdict of just over $2 million, a portion of which was reduced on appeal.
“Their expert’s body of work was huge, he had a résumé that was 40 pages long with all of his articles,” says Michael End, a plaintiff’s attorney and partner at End, Hierseman & Crain. “But Don … just blew him out of the water.”
Prachthauser’s ability to cross-examine witnesses also includes a skill rarely associated with trial lawyers. “He knows when to just shut up,” Kukor says. “Some lawyers go on and on and beat a dead horse. When Don gets a golden nugget from a witness, he doesn’t give them room to wiggle out or go on for days and bury that nugget.”
At one trial, involving an incident in which his client had been injured after tripping over broken concrete left in his yard by a contractor, Prachthauser found himself cross-examining the very likeable defense witness who had failed to clean up the debris.
After suggesting that the man seemed very conscientious and not at all like someone who would fail to take care of such a mess, the witness agreed and said he’d been racking his brain for reasons why he hadn’t picked up the concrete right away.
Realizing this was very close to an admission of negligence, Prachthauser stopped. “Thanks,” he said. “That’ll be all.”
Above all, when Prachthauser steps into the courtroom, he’s calm. He’s rational. He lays out the case in very clear terms. And when he wins, there is one thing he rarely does.
“He’s had opportunities to call press conferences or call reporters, but that doesn’t do the client any good,” Kukor says. “The fact that it might help him or the firm takes second place to what’s best for the client.”
According to Prachthauser, that’s because he thinks most of his clients aren’t looking for money. Instead, he says, they are seeking “answers and accountability.”
On Perry Mason, Prachthauser remembers, there was always that moment when someone would run into the courtroom with a document that would win the case and save the day. In the real world, however, he knows that nobody will run in with that document. It is his job to dig it up.
“You don’t have a choice. You need to find that document before trial,” he says. “You need to work hard. Because if you do the work, it’s a lot easier to present a good case.”
Which brings us back to his original answer to our original question. Prachthauser may not know that he’s good at what he does, but others know.
“If something happened to me or a member of my family,” Michael End says, “Don is the first guy I’d go to.”