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    Book Reviews

    David Kuehner; Robert Kasieta; Thomas Heyn; Gregory Naples; Robert Misey Jr.; Michelle Hugghis

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    Wisconsin Lawyer
    Vol. 76, No. 6, June 2003

    Book Reviews

    Book: The Winning ArgumentInside the Minds: Leading Intellectual Property Lawyers

    By IP chairs/group leaders (Boston, MA: Aspatore Books, 2002). 242 pgs. $27.95. Order, www.aspatore.com.

    Reviewed by Gregory J. Naples

    Inside the Minds is a collection of essays intended to capsulize the grist of IP law by calling upon some of its leading practitioners to distill the precepts of art and science that comprise the challenge of IP practice. Although relatively brief, the essays quickly convey a breadth of experience that befits the authors' professional success. Although each essay addresses what its author believes to be the "secret" to a successful IP practice, the value of the book is more in the simple commonalities to which each author attributes his or her success. In the hubbub of professional practice we often need to be reminded that issues need to be framed in simple, concise, and understandable terms for both clients and juries; that litigational analogies must be carefully crafted so that juries can form comfortable frames of reference; that key issues must not only be accurately identified but must also be logically prioritized to avoid litigational confusion; that client concerns for cost containment are legitimate

    managerial issues and that we, as counsel, need to credibly relate such costs in the context of clearly defined litigational strategies and objectives; that we have a duty to provide our clients with reliable guidance respecting litigational alternatives, and to respect their judgment; and that thoroughly understanding the nature of a client's business, its business practices, and its industry standing is a matter of respect as well as a prerequisite for any engagement.

    Invariably, each of the authors attributes personal success to obvious, but often neglected, practices such as the absolute necessity to continually maintain an IP knowledge base that is both current and technically accurate; to sublimate ego when negotiating, and to foster candor, sincerity, and trust with clients; to approach each engagement with an open mind and to plan to win but prepare for loss. The authors conclude each essay by citing what each believes to be some of the more significant emerging IP issues including: the web of global infringement; the adaptability and usefulness of ADR methodologies; the approaching conflict between the ascendancy of societal rights over proprietary interests; the continuing truncation of the litigation process by the Internet; and the daunting perplexities of privacy in the context of increasingly sophisticated technologies.

    Collectively, the essays are useful, even instructive, as regards the nuggets of professional IP practice success. However, the real value of the authors' accrued experience lies in their respective views of the future of IP in both the context of the practice experience and the nature of the issues percolating to the forefront. Unfortunately, the future of IP is treated with considerably less emphasis than it deserves given the prominence of these authors. This is regrettable, especially since the authors' collective wisdom will most assuredly have a formative impact on both litigational strategy and the identification of emerging issues.

    Prof. Gregory J. Naples, Illinois 1973, LLM-DePaul 1982, teaches business law, tax, and international business law and tax in the College of Business Administration at Marquette University, Milwaukee.

    Wisdom, Tips, and Musings on Marketing and Public Relations

    By Jane E. Hosmanek Kaiser (Franklin, WI: Communicator for Hire Inc., 2002). 48 pgs. $20. Order, (414) 423-9127.

    Reviewed by David B. Kuehner

    This is a small book with a lot to say. Covering three topic areas - marketing, public relations, and media relations - it strikes a delicate balance. Not comprehensive enough for use as a "how-to" manual, its broad brush approach encourages discussion. For example, the author advises against operating without a marketing plan, creating a plan without initial market research, and ignoring a plan once it has been created. Obvious, right? But how many of us do just that? We purchase biographies on Martindale-Hubble, create expensive Web sites, and advertise to the extent we can afford in the local yellow pages. But do we ever really evaluate our return on these investments? Do we even know how?

    Atty. Kaiser's musings are varied. Topics include building a strong client base, prioritizing time, and evaluating all those pesky invitations to attend this or that event. She includes a checklist for organizing and conducting a seminar. The marketing section ends with a discussion on Web sites and the necessity of a client-oriented staff.

    Kaiser's discussion on philanthropy is interesting. Why do so many firms give a little bit to every "good" cause? Is it guilt? Ignorance? Fear? Just plain lack of thought? According to Kaiser, fewer and larger donations give the greatest payback. Gifts of less than 5 percent of the total fundraising goal render little lasting benefit. Do you act pursuant to a charitable giving policy or just fly by the seat of your pants?

    Other topics include focusing public relations efforts, creating disaster plans, honing employee communications, working with the media, and adjusting communication to a particular audience.

    Marketing and public relations cannot be adequately covered in 48 pages. Kaiser's work is succinct but thoughtful. Too often, we continue to do what we have always done simply because that is the way we have always done things. If your "slice of the pie" is shrinking or if you are hungry for more, I recommend this little book. Readers are challenged to reexamine their circumstances and consider alternate strategies. It is a quick read and worth your time.

    David B. Kuehner, SIU-Carbondale 1993, is a partner in Libera & Kuehner, Winona, Minn. The firm's practice emphases are probate and real estate.

    Winning Alternatives to the Billable Hour

    Edited by James A. Calloway & Mark A. Robertson (Chicago, IL: ABA Law Practice Management Section, 2002). 287 pgs, with disk. $149.95. Order, (800) 285-2221.

    Reviewed by Robert J. Misey Jr.

    As the title suggests, this book describes alternative approaches to billing, while building on prior ABA publications. The book's central theme is that bills should be based on value. Bills based on billable rates multiplied by hours worked represent costs and do not represent value. Tied to the central theme is the productivity paradox, whereby technology increases a lawyer's productivity, yet decreases the lawyer's bill, while value remains constant.

    The book aptly answers its own questions, providing a framework for numerous alternatives, most of which are value-based. The editors recognize that several of the chapters are geared to large-firm lawyers and suggest that small-firm lawyers and solo practitioners skip several enumerated chapters. Despite this suggestion, there are many types of firm structures (for example, the five-lawyer specialty boutique that has split off from a large firm) between those two poles that could benefit from similar guidance.

    The book provides interesting reading with respect to the history of billing. For example, under old English custom, the client, as a sole determinator of value, would slip money into the barrister's robe. I hope the next edition of the book attempts to use historical tidbits as a springboard to project the future of law practice and billing.

    Constantly returning to the central theme of bills based on value made this book easy to follow. The concept of a value curve _ determining value for different services across a wide array of client perceptions - makes intuitive and practical sense.

    The book offers a chapter containing numerous alternative billing methods for use after the attorney has determined the client's perception of value received. This chapter is useful, but would be better understood with examples. More specifically, examples could more aptly describe the difference between a flat fee and a task-based fee.

    This book does a good job dealing with the issue of billing alternatives, an issue that most lawyers would prefer to avoid. I learned enough that I anticipate reading another ABA Law Practice Management Section book, How to Draft Bills Clients Rush to Pay.

    Robert J. Misey Jr., Vanderbilt 1987, practices with Reinhart Boerner Van Deuren S.C. in Milwaukee. He also is a graduate of the Georgetown University law school and previously worked for the IRS Chief Counsel (International).

    Direct Examination: A Workbook for Lawyer Career Satisfaction

    By Kathy Morris & Jill Eckert (Chicago, IL: ABA Career Resource Center, 2001). 104 pgs. $29.95. Order, (800) 285-2221.

    Reviewed by Robert J. Kasieta

    Morris and Eckert have constructed a workbook designed to "help lawyers and law students appropriately adjust their career and job search plans, as it leads them through a wide range of exercises." The book is short and manageable. It prompts readers to ask themselves questions about their strengths, weaknesses, and aspirations. For someone considering a career change, this book might provide personal insight. It probably will not provide direction. The workbook would provide a better service to readers entering law school.

    The workbook's exercises compel the reader to reflect on hard questions. It gently brings the reader to a deeper understanding of his or her motivations, fears, and aspirations. It also aids with practical concerns, like updating one's resumé and interviewing.

    Direct Examination lacks organization. There is no rational flow through the 10 chapters. Rather, each chapter presents interesting observations that only loosely relate to those in preceding and following chapters. The authors would have greatly improved the book by providing an introduction that identified continuity. They would have done a great service to the reader by providing some meaningful progression to the chapters of the book.

    In a challenging and competitive legal environment, this book might actually do a disservice to practicing lawyers. The ABA sponsors the workbook, but it does not do enough to remind struggling attorneys considering career changes what brought them to the law initially. We all became lawyers for our own reasons. Common among us is the commitment to the practice. We all had it once. It is a big step to leave the practice of law or even to leave a firm or office. The book could have offered unhappy lawyers insight into the benefits of continuing in the practice. Instead, the exercises in the workbook seem to lead inexorably to change. Regrettably, it ignores the possibility that the reader might conclude that he or she should stay in the law, notwithstanding the rigors of the practice.

    Robert J. Kasieta , Marquette 1983, is the founder of Kasieta Legal Group LLC, Madison, where his practice focuses on plaintiff personal injury and employment law.

    Sarbanes-Oxley Act of 2002: Law and Explanation

    By James Hamilton & Ted Trautmann (Riverwoods, IL: CCH Inc., 2002). 235 pgs. $39. Order, (800) 248-3248.

    Reviewed by Michelle D. Hugghis

    The responsibilities and duties of those managing, auditing, and providing legal counsel to public companies were significantly increased when the Sarbanes-Oxley Act of 2002 (the "Act") was signed into law on July 30, 2002.

    The Sarbanes-Oxley Act of 2002: Law and Explanation is a useful reference tool for senior corporate management, members of audit committees, and CPAs and attorneys who audit and counsel public companies subject to federal securities laws.

    This book has three parts. Part I, the explanation, is a must-read for both corporate lawyers and nonlawyers, especially in light of the criminal penalties and fines imposed on CEOs and CFOs for failing to comply with the Act's disclosure requirements. The explanation portion is user-friendly, providing cross references to corresponding sections of the Act. The book also contains a table of statutes added or amended and a topical index referencing the paragraph numbers in Part I.

    Part II contains the Act's official text, and Part III contains selected portions of the Senate and House committee reports related to the Act. Senior in-house counsel responsible for SEC reports and senior corporate and securities attorneys may find it helpful to keep a copy on their desks for guidance as to their professional responsibilities and what one should do going forward as legal counsel to a public company post-Enron. This book serves as both a comprehensive overview of the Act and a quick reference guide.

    Michelle D. Hugghis is a 2000 graduate of the University of Illinois Law School.

    Who Knows What's Right Anymore? A Guide to Personal Decision-Making

    By Earle F. Zeigler (Victoria, B.C., Canada: Trafford Publishing, 2002). 274 pgs. $19.95. Order, www.trafford.com.

    Reviewed by Thomas Heyn

    Zeigler's book was my first experience with a "published-on-demand" book (Trafford Publishing). In this do-it-yourself approach, the author apparently does his own editing, proofreading, and typesetting. This book fails at all three.

    The typestyle uses a boldface sans serif font. Readability studies show that such a typestyle is difficult to read. I'll vouch for that! This book was a chore to pick up and read for more than a few minutes at a time. Spelling and grammatical mistakes were abundant. It appeared, at times, that the author had deleted part of a sentence on his computer and submitted the text without proofreading and finding the incomplete sentences.

    Although the author seemed to have impressive credentials for the subject matter, his material was neither clear nor concise. Discussions often wandered from topic to topic with no apparent direction. Parenthetical additions neither enhanced nor clarified the points under discussion. It is said that one shows his mastery of a subject by making the complex simple, and the difficult easy-to-understand. This book did neither.

    Zeigler begins by identifying a crisis in our world, the failure to train people how to think about and solve ethical dilemmas. He follows with a too brief history of ethical approaches, followed by an overly simplified review of current approaches.

    Finally, he presents an elaborate four-phase approach to ethical problem solving. The first two phases consist of seven separate steps. Phase three superimposes the results of phase one on the results of phase two. Then, in phase four, he adds a case method analysis to arrive at the ultimate decision.

    Zeigler does not present a simple process. Few would find it usable in everyday life, whether personal or professional. Perhaps a rewrite, good editing, and proper publishing would make this book more usable and Zeigler's solution more understandable.

    Thomas Heyn, U.W. 1998, practices estate planning, real estate, and business law in Cottage Grove.

    To Review a Book...

    The following books are available for review. Please request the book and writing guidelines from Karlé Lester at the State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, (608) 250-6127, org klester wisbar wisbar klester org.

    Publications and videos available for review

    • Attorney and Law Firm Guide to the Business of Law: Planning and Operating for Survival and Growth, 2nd ed., by Edward Poll (Chicago, IL: ABA General Practice, Solo & Small Firm Section, 2002). 642 pgs., with diskette of forms.
    • Collecting Your Fee: Getting Paid from Intake to Invoice, by Edward Poll (Chicago, IL: ABA Law Practice Management Section, 2003). 166 pgs., with diskette.
    • Democracy's Dilemma, by Robert C. Paehlke (Cambridge, MA: The MIT Press, 2003). 306 pgs.
    • Electronic Surveillance: Commentaries & Statutes, by James A. Adams & Daniel D. Blinka (Notre Dame, IN: National Institute for Trial Advocacy, 2003). 218 pgs.
    • Forensic Aspects of Communication Sciences & Disorders, by Dennis C. Tanner (Tucson, AZ: Lawyers & Judges Publishing, 2003). 393 pgs.
    • Forensic Aspects of Driver Perception & Response, 2nd ed., by Paul L. Olson & Eugene Farber (Tucson, AZ: Lawyers & Judges Publishing, 2003). 372 pgs.
    • The Good, The Bad & The Difference: How to Tell Right from Wrong in Everyday Situations, by Randy Cohen (New York, NY: Doubleday Broadway Publishing Group, 2002). 284 pgs.
    • Homeland Security Statutes, 2003 Ed., edited by Government Institutes Research Group (Rockville, MD: Government Institutes, 2003). 600 pgs.
    • International Franchising in Industrialized Markets: North America, the Pacific Rim, and Other Countries, edited by Dianne H.B. Welsh & Ilan Alon (Riverwoods, IL: CCH Inc., 2002). 368 pgs.
    • Law Partnership: Its Rights & Responsibilities, 2nd ed., by George H. Cain (Chicago, IL: ABA Senior Lawyers Division, 1999). 362 pgs., with diskette.
    • Medical-Legal Aspects of Drugs, by Marcelline Burns, Ph.D. (Tucson, AZ: Lawyers & Judges Publishing, 2003). 468 pgs.
    • Medical-Legal Aspects of Long-Term Care, edited by Jeffrey M. Levine, MD (Tucson, AZ: Lawyers & Judges Publishing, 2003).
    • The Nature of the Farm: Contracts, Risk, and Organization in Agriculture, by Douglas W. Allen & Dean Lueck (Cambridge, MA: The MIT Press, 2003). 280 pgs.
    • Paralegals, Profitability, and the Future of Your Law Practice, by Arthur G. Greene & Therese A. Cannon (Chicago, IL: ABA Law Practice Management Section, 2003). 174 pgs., with diskette.
    • Pre-Mortem Estate Planning Checklist, 2d ed., by Edward S. Schlesigner & Robert D. Howard (Philadelphia, PA: ALI-ABA., 2003). 468 pgs, loose-leaf binder, with CD-ROM.
    • Reporting Duties of Corporate Attorneys: SEC Rules & Explanation, edited by CCH Editorial Staff (Riverwoods, IL: CCH Inc., 2002). 68 pgs.
    • The Right to the Assistance of Counsel: A Reference Guide to the U.S. Constitution, by James J. Tomkovicz (Westport, CT: Greenwood Publishing Group Inc., 2002). 258 pgs.
    • State Public Construction Law Source Book, by Michael K. Love & Douglas L. Patin (Riverwoods, IL: CCH Inc., 2002). 1,616 pgs.
    • Taking Sides on Takings Issues: The Impact of Tahoe-Sierra, edited by Thomas E. Roberts (Chicago, IL: ABA State & Local Government Law Section, 2003). 109 pg



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