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    Vol. 80, No. 10, October 2007

    Improvisational Negotiation: A Mediator's Stories of Conflict about Love, Money, Anger - and the Strategies that Resolved Them

    By Jeffrey Krivis (San Francisco, CA: Wile Professional/Trade Group, 2006). 324 pgs. $35. Order, (800) 225-5945.

    Reviewed by Barry J. Boline

    In this book, Jeffrey Krivis relays 30 stories of actual mediations facilitated by him or his colleagues. Serving as president of the International Academy of Mediators and the Southern California Mediation Association has certainly given him a wealth of material from which to draw.

    What is so interesting about this book is the insight Krivis gives into the back and forth between different caucus rooms in which mediators work out agreements on everything from $10,000 contract disputes to multi-million dollar whistleblower litigations. Krivis takes the reader from inside one caucus room to the other so that the reader can see the negotiations take shape. Likening mediation to a game of chess, Krivis artfully details each mediation from opening move to end game.

    While Krivis' technique of teaching solely through the examples of his mediations takes some getting used to, his chapter summaries and the "hip-pocket guide to strategy" he includes sum up his points and provide practical tools for practicing mediators. Mediators will find themselves going back to this book, essentially a weekend read, again and again when their clients reach a supposed impasse and when only creative thinking will break it. Krivis provides these creative ideas in an easy-to-read and informative format.

    Improvisational Negotiation will be helpful to attorneys whose clients are about to participate in mediation or alternative dispute resolution and will certainly be helpful for mediators involved in situations in which the standard offer-counter offer-counter offer routine is not working. Krivis offers the reader the opportunity to sit in his chair through 30 varied mediations, and the reader receives a wealth of information as a result.

    Barry J. Boline, Drake 1994, is an attorney and mediator in Mequon.

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    Appellate Practice and Procedure in Wisconsin, 4th Ed.

    By Michael S. Heffernan (Madison, WI: State Bar CLE, 2006). 600+ pgs, CD-ROM. $145 members / $185 nonmembers. Order, www.wisbar.org.

    Reviewed by William F. Eich

    While others have moved in and out of the process over the years, it truly may be said that Michael Heffernan "wrote the book" on Wisconsin appellate practice. Now in its revised 4th edition, Appellate Practice and Procedure in Wisconsin remains at the pinnacle of its genre.

    The book, loose-leaf and roughly an inch-and-a-quarter thick (the pages are numbered by chapters, rather than consecutively), with another three-quarters of an inch of appendices, is a must-have even for those who only very rarely find themselves in an appellate court. Indeed, it would be well worth its weight - and price - for use on only a single appeal.

    After some prefatory material, the book begins with an informative, gracefully written "Introduction to the Wisconsin Appellate System," which could stand alone as a law journal article and should not be missed by anyone practicing in the appellate courts. Then come the nuts and bolts, beginning with practice in the court of appeals and covering the subject from the initial decision to appeal to reconsideration and remittitur. There are sections on jurisdiction, parties, relief pending appeal, motion practice, multiple appeals, single-judge appeals, permissive appeals, expedited ("fast-track") appeals, supervisory relief, and post-decision procedures. There also is a lengthy chapter dealing with postconviction relief and review in criminal cases.

    Heffernan then moves on to supreme court practice - from petitions for review and bypass to original actions and supervisory relief - and a most informative chapter on appeals from administrative agency decisions. Not to be missed are his frequent observations on the appellate process and references to the reasons underlying many of the directives found in the rules.

    As a frequent commentator on brief-writing and oral argument, I was particularly interested in the chapters covering these subjects. Heffernan is a facile writer and a lawyer with extensive experience in both the "inside" and the "outside" of appellate practice, and he offers a wealth of suggestions and observations on the subject - not only from the attorney's point of view but also from the point of view of the judges who must read those briefs and listen to those arguments. Heffernan's insights into the actual workings of the appellate process - and, to a very welcome degree, what judges tend to look for in submissions - comprise one of the book's many highlights. These are chapters that would bear rereading before filing a brief or making an argument at any level of the court system.

    The appendices include not only forms (which also are included on a CD) but also a wealth of other materials, such as the Wisconsin Rules of Appellate Procedure and the internal operating procedures of both the supreme court and the court of appeals. Heffernan even includes the addresses and telephone numbers of various circuit and appellate court officers and offices.

    But it is Appendix C, in which Judge Richard Brown - whose service on the Wisconsin Court of Appeals (District II) is now approaching 30 years, and who has a well-deserved reputation as one of the finest judges to have served on that court - discusses the appellate standard of review, that I found to be the book's single most important part. The scope of appellate review of circuit court rulings and decisions occupies a place at the very heart of the appellate system and can have a huge effect on the outcome of the appeal. It is noteworthy in this regard, I think, that Heffernan has placed an introductory discussion of the subject in the chapter dealing with whether to take an appeal in the first instance.

    Many circuit court decisions are discretionary - from the admission or rejection of evidence to a myriad of family law and civil law issues - and thus entitled to great deference on appeal. The same is true for the circuit court's findings of fact, jury verdicts, administrative agency decisions, and a host of other actions. And, as even a quick perusal of the Wisconsin Reports will reveal, many appeals are routinely disposed of on standard-of-review grounds. Think of how often one sees a phrase like this repeated in one form or another in a court of appeals or supreme court opinion: "We owe great deference to the discretionary determination of the trial court, and will affirm that determination - even if it is one with which we do not agree - unless it is one no reasonable judge could reach; indeed, we generally look for reasons to sustain a trial court's discretionary determinations." The deferential standard of review applicable to factual findings, discretionary decisions, and a wealth of other circuit court actions, has quite accurately been described as giving circuit courts "a limited right to be wrong," and it is refreshing to see the subject given such deserved prominence in a text on appellate practice.

    There is, in short, great value to be found in virtually all chapters of this new edition of "The Book" on Wisconsin appellate practice and procedure, but its discussion of issues reaching beyond the body of dry rules and regulations puts it in a class by itself and renders it a most welcome addition to any attorney's library.

    William F. Eich, U.W. 1963, a former Dane County circuit court judge and former Chief Judge of the Wisconsin Court of Appeals, maintains an appellate consulting, arbitration, and mediation practice in Madison.

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    Neither Angels nor Demons: Women, Crime, and Victimization

    By Kathleen J. Ferraro (Boston, MA: Northeastern Univ. Press, 2006). 344 pgs. $26. Order, www.upne.com.

    Reviewed by Dianne Post

    Kathleen Ferraro is a professor of women's studies and sociology at Northern Arizona University. For 30 years she has worked in the anti-violence movement and for 23 of those years, she worked with women who were victims of violence or were criminal offenders. Since 1983, she has testified, sometimes for the prosecution and sometimes for the defense, 89 times in civil and criminal courts on the effects of battering. The book details the lessons learned from those experiences.

    The book's purpose is to look at the connections between victimization and offending from the perspective of the women themselves. Actual wording from interviews is used to illustrate the women's thinking process. The analysis places the behaviors within complex sociological and historical contexts. It is not only a feminist perspective but also an experiential perspective that includes the vectors of class and race that so often are missing.

    The chapters cover how the language of violence is framed and used; the women's experiences in the criminal justice system in contrast to the assumptions and assertions of legal actors; the mistakes made with battered women's syndrome and the real price of trauma and terror; the assumptions made about so-called cycles of violence versus the real complexity of the effects of trauma; internalized power and control mechanisms; complicity of victims; and how we can move to conditions that promote safety and well-being for all persons rather than blame on and control of some. The appendices include extensive information on the subjects and methods.

    For any lawyer working with battered women, whether in criminal prosecution or defense, family law or civil cases, it is essential to read this book to understand the complexity of violence against women and the nuances within it.

    Dianne Post, U.W. 1979, has spent 26 years representing women and children who are victims of violence. Since 1998, she has worked abroad on international human rights issues primarily for women.

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    Software Licensing Handbook

    By Jeffrey I. Gordon (Raleigh, NC: Jeffrey I. Gordon, 2006). 248 pgs. $44.95. Order, www.licensinghandbook.com.

    Reviewed by Craig A. Wilson

    Software affects countless aspects of our 21st century existence. Even so, people typically disregard software licenses when selecting, installing, and using routine applications. The same is true for complex, enterprise-level solutions; license review often yields to considerations of interoperability and purchase price. When formal review and negotiation does occur, many people routinely accept license provisions as boilerplate language that is not prone to revision.

    In the Software Licensing Handbook, the author applies his contract negotiation experience to dissect common software license provisions. In doing so, he employs a structured format: highlight major issues then explain strategies for finding leverage and negotiating each point. Each section begins with a comparison of the parties' objectives. This customer-versus-provider analysis tracks closely with the author's goal of illustrating a balanced agreement but also presents tips to overcome one-sided terms included in "template agreements."

    Beyond explaining maintenance agreements, application service providers (ASPs), and custom development, the handbook addresses request for proposal (RFP) procedures, negotiation techniques, quantifying metrics, and the importance of contract management. The book identifies major legal doctrines influencing particular provisions. That said, there is no detailed legal analysis of any given issue; the author advises discussion with counsel regarding legal technicalities.

    Attorneys should recommend this book to clients dealing in increasingly sophisticated software products and services. Consider browsing the handbook if you are a business practitioner seeking an overview of provisions used to define and manage software licenses or wishing to better understand how businesses solicit and negotiate for software and related services. This is not a reference for technology attorneys looking to enhance their understanding of the intricate legal considerations shaping software transactions.

    Craig A. Wilson, Marquette 2004, spent many years on the front lines of the software industry. He now advises clients on a host of technology and intellectual property matters.

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    The Laws of Simplicity

    By John Maeda (Cambridge, MA: The MIT Press, 2006). 176 pgs. $20. Order, mitpress.mit.edu.

    Reviewed by Kristine Nelson Fuge

    Simplicity is not a concept familiar to most attorneys. However, after spending an afternoon on a flight to Las Vegas reading John Maeda's book, The Laws of Simplicity, I am thoroughly convinced that even the most efficient attorneys will find rewards by applying Maeda's 10 laws in their daily professional and personal lives.

    Maeda is a world-renowned graphic designer and a professor at the Massachusetts Institute of Technology (MIT) Media Lab. In 2004, he started the MIT Simplicity Consortium to define the business value of simplicity and create prototype systems that point to directions where simplicity-driven products could lead to market success (think IPODã).

    In The Laws of Simplicity, Maeda begins with the premise that technology has made our lives uncomfortably full while living in a simplicity paradox: we want something that is simple and easy to use but that also does all the complex things we might ever want it to do. In a mere 100 pages, Maeda offers 10 laws to understand this dilemma and create simplicity in one's life:

    Law 1: Reduce. The simplest way to achieve simplicity is through thoughtful reduction.

    Law 2: Organize. Organization makes a system of many [components] appear fewer.

    Law 3: Time. Savings in time feel like simplicity.

    Law 4: Learn. Knowledge makes everything simpler.

    Law 5: Differences. Simplicity and complexity need each other.

    Law 6: Context. What lies in the periphery of simplicity is definitely not peripheral.

    Law 7: Emotion. More emotions are better than fewer.

    Law 8: Trust. In simplicity we trust.

    Law 9: Failure. Some things can never be made simple.

    Law 10: The One. Simplicity is about subtracting the obvious and adding the meaningful.

    Throughout the book, Maeda uses common ideas and experiences to reach uncommon understanding of creating simplicity in one's life. For example, while introducing Law 6, Context, Maeda shares the following story: "I was once advised by my teacher Nicholas Negroponte to become a light bulb instead of a laser beam…. His point was that you can either brighten a single point with laser precision, or else use the same light to illuminate everything around you."

    Maeda took the challenge personally to find meaning in everything around and not just what was directly in front of him. The reader is challenged to understand that what lies in the periphery is not peripheral.

    For further discussion, study, sharing of ideas, and some unique tools to practice simplicity, check out Maeda's Web site at www.lawsofsimplicity.com. In the words of John Maeda, "Simplicity = Sanity."

    Kristine Nelson Fuge, Hamline 1996, is an assistant county attorney in Chisago County, Minnesota.

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    Legal Guide to Home Renovation: Everything You Need to Know About the Law and Insurance, Permits and Contracts

    By Robert Yates (Chicago, IL: ABA, 2006). 224 pgs. $16.95. Order, www.ababooks.com.

     

    Reviewed by Kevin W. Davidson

    This book is a collection of brief advice tidbits on the subject of home remodeling and renovation. As part of the ABA's series aimed at providing to the general public plain-spoken overviews of legal topics, the book purports to address the legal issues a homeowner faces when undertaking a renovation or remodeling project. Because the target audience is the lay consumer, this book will be of little interest to attorneys.

    A quick glance at the table of contents reveals two notable characteristics of the book. First, it does attempt to address nearly every topic that may arise within the context of a renovation project. With coverage of planning, financing, insurance, permits, licenses, do-it-yourself work, scheduling subcontractors, choosing a general contractor, contracts, negotiations, ensuring quality and timeliness of the work, dispute resolution, government oversight of the renovation industry, legislative consumer protection, and the role of a lawyer in the renovation project, the book certainly appears to provide a comprehensive treatment of all the legal issues a homeowner may face. Second, given that the book is divided into 10 chapters spanning just over 200 pages in a 5" x 8" format, it becomes clear that little depth is to be expected. Reading through the book further bears out this observation - each chapter is further broken up with several sidebars and anecdotes, leaving an average of 15 to 16 pages of text per chapter.

    This book is really a brief primer and starting point for first-time consumers, providing an overview and references to additional sources of information. Though Legal Guide to Home Renovations falls far short of the subtitle's lofty claim "everything you need to know," it does provide some direction on how and where homeowners may find more detailed information for their specific needs.

    Kevin W. Davidson, Marquette 2006, is an associate with Litchfield Cavo LLP, Brookfield, practicing in insurance coverage and insurance defense litigation. He previously owned and operated a construction and remodeling business in southeastern Wisconsin.

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    Not a Suicide Pact: The Constitution in a Time of National Emergency

    By Richard A. Posner (Oxford Univ. Press, 2006). 208 pgs. $18.95. Order, www.oup.com/us.

    Reviewed by David F. Loeffler

    The author, Judge Richard Posner, firmly believes that the Islamist Jihadists are fanatically committed to imposing on the American people great costs, in terms of lost life and property damage, through attacks with weapons of mass destruction.

    This existential fact, as the author sees the world, is the foundation of his closely reasoned, luminous exposition of the tensions between government efforts to provide security against such attacks and individual exercises of certain civil liberties grounded in the federal Constitution.

    For Posner, constitutional government has no higher function than to provide physical security to the governed: Individual rights must be accommodated to this imperative.

    The most interesting dimension of this important book is Posner's elaboration of his general theory of constitutional interpretation - a theory that, no doubt, extends to his reading of many federal statutes as well.

    No originalism or strict construction of the text here. Posner is a thorough- going consequentialist. He describes his methodology as legal pragmatism. He asks, given the open-ended, indeterminate character of the relevant constitutional text, which plausible interpretation is likely to confer a net social benefit in the here and now?

    Posner is one of the founders of the law and economics paradigm and one of the best practitioners of that mode of legal analysis, as a reading of his Seventh Circuit opinions and many books and articles discloses.

    The method is brilliantly displayed in this short book. Posner carefully identifies the security benefits conferred by various government initiatives, post 9/11, but he is very sensitive to the costs to individual liberties imposed by each security effort. Most important, he explicitly recognizes that identifying the relevant costs and benefits and assigning a value to each is not solely a matter of empirical inquiry. The analysis begins from a baseline in which each individual judge assigns an opening relative weight to the values of security and individual freedom, values that are, to a large degree, not quantifiable. Posner also recognizes that the initial assignment and the subsequent relative assignment of value to each specific variable, deemed relevant to the inquiry, are functions of the personality and character the judge brings to the task. But for Posner, there is no other way for a judge to discharge the duty conferred on courts by the Constitution. Ideology counts. There is no other choice in this life.

    The heart of the book is the detailed cost/benefit analysis of specific areas of conflict between security and freedom in the shadow of Islamist extremism. A detailed report of the particular outcomes of that analysis is beyond the scope of this review. But readers who believe that Posner is the kind of judge President Bush professes to like should be prepared for some surprises. Among other positions taken, Posner does not seek to uncritically insulate executive initiatives from judicial review on the theory that the Article II powers of the commander-in-chief cannot be constrained by Article III judges.

    Wisconsin lawyers should read this book, regardless of their areas of practice. We all benefit from exposure to a rigorous, but pellucid discussion of the constitutional issue of our day by a jurist who, through the sheer exercise of intellectual power, dominates the federal appellate court in which we do much business.

    David Loeffler, U.W. 1963, is a generalist corporate litigator affiliated with Krukowski & Costello S.C., Milwaukee.

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    The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War

    By H. Robert Baker (Athens, OH: Ohio Univ. Press, 2006). 272 pgs. $38.95. Order, www.ohio.edu/oupress.

    Reviewed by Erik R. Guenther

    Joshua Glover was captured by his alleged owner and federal agents under cover of darkness in Racine, Wis. The story of his rescue transports the reader to a time when citizenship meant resistence to authority.

    Resistance to the federal courts' assumption of power is the larger story of which Joshua Glover's rescue plays a distinct part. The book traces a remarkable course of legal proceedings and political battles over the subsequent six years and their impact on the separation of powers and the interpretation of the U.S. Constitution. The era's hallmarks of minstrel shows, immigrant conflict, and complicated racial relations are effectively entwined with this fascinating legal history.

    Glover's supporters sought to protect the right of habeas corpus "for this prisoner, as well as for our own protection, that this Sacred Writ shall be obeyed." The federal government's attempt to eliminate habeas corpus rights for detained "fugitive" slaves rings with an eerie familiarity in the context of the current detention of "enemy combatants" and incarcerations of individuals deemed to be sexually violent.

    The reader has no choice but to reflect on how events in the antebellum era mirror the acts of our present government. In short, the reader is forced to recognize that liberty is fragile and requires vigilant defense by society.

    The Rescue of Joshua Glover offers an entertaining historical narrative while posing questions that are not easily resolved. After the last page is read, the reader is left to question how citizen is defined. State rights arguments may not be dismissed so easily after one reads Baker’s text. The importance of protest and the extent of appropriate resistance are subject to new examination. In short, the book will do what the best books can do – it will force the reader to think and question long after the book is returned to the shelf.

    Erik R. Guenther, U.W. 2002, is an associate with the criminal defense practice group of Hurley, Burish & Stanton S.C., Madison, representing individuals and business entities in Wisconsin courts and in federal courts nationwide. He also handles constitutional litigation and criminal appeals.

    Patrick R. Burns, South Dakota 2000, is vice president of the American Arbitration Association, Minneapolis, and is a Minnesota Rule 114 qualified neutral. He previously was a trial lawyer, and he is licensed to practice law in South Dakota, Minnesota, and Wisconsin.

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    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. Reviewers may keep the book they review. Reviews are published in the order in which they are received.

    Publications available for review:

    • Adoption: Uncharted Waters, David Kirschner Ph.D. (Woodbury, NY: Juneau Press LLC, 2007). 324 pgs.
    • Executive Compensation and Related_Party Disclosure: SEC Rules and Explanation, by James Hamilton (Riverwoods, IL: CCH, 2006).193 pgs.
    • The Family Limited Partnership Deskbook: Forming and Funding FLPs and Other Closely Held Business Entities, 2nd. Ed., by David T. Lewis & Andrea C. Chomakos (Chicago, IL: ABA Real Property, Probate & Trust Law Section). 2007. 328 pgs.
    • Federal Justice in Indiana: The History of the U.S. District Court for the Southern District of Indiana, by George W. Geib & Donald B. Kite Sr. (Indianapolis, IN: Indiana Historical Society, 2007). 350 pgs.
    • Literature and the Law, by Thomas Morawetz (Frederick, MD: Aspen Publishers, 2007). 588 pgs.




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