Vol. 83, No. 6, June 2010
Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them
By Steven Lubet & Elizabeth I. Boals (Louisville, CO: National Institute for Trial Advocacy, 2009). 208 pgs. $45. Order, (303) 953-6814.
Reviewed by Farheen M. Ansari
This book begins by telling the reader what it is about (expert testimony), its purpose (“to explore and illuminate the process of providing expert testimony in litigation”), and its goal (“to assist both experts and lawyers in presenting accurate information in court”). And the book achieves all these things. The reader is taken on the journey of having an expert witness at trial from start to finish and is left with a comprehensive understanding of each step in the process.
The book’s best features are its clear writing and structure. The book starts with the initial hiring of an expert and then proceeds to preparation, discovery and depositions, and direct and cross examination. Each chapter is outlined in detail. Tables throughout the book highlight such important points as the Daubert and Frye rules of admissibility, mandatory expert disclosures, keys to a well-organized report, and cross-examination techniques. Another great tool is the use of mock conversations, which are extremely helpful in placing the knowledge into a real-world setting, showing both the expert and the attorney how questions are asked and answered in depositions and at trial. Footnotes and an index help the reader find particular sources and topics.
Each chapter provides great background information for any expert witness not familiar with the trial process. Relevant legal terms, such as pleadings, voir dire, and discovery, are explained. The book will help attorneys explain to expert witnesses legal concepts and the trial process. After defining relevant terms and describing the particular stage of trial, each chapter then covers almost every possible scenario or problem the expert might encounter and how to deal with each situation. The expert is told how to prepare a thorough written report, which must be provided to the opposing party, and how to create effective visual aids for use in court. The expert is also prepared for the different questioning techniques attorneys use in depositions and trials, how to answer, how to phrase answers, and how not to get tricked or flustered by the manner in which questions are asked. The authors touch on the psychology of decision-making and the best communication methods for experts, for example, using narratives, showing confidence, and using conversational language. The underlying theme of this guide is to teach the expert how to be credible and effective in communicating at every step of trial. This book is a valuable tool for both trial lawyers and their expert witnesses.
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Disability Discrimination Law, Evidence, and Testimony Reference Manual
by John Parry (Chicago: ABA Commission on Mental & Physical Disability Law, 2008). 694 pgs. $105. Order, www.abanet.org.
Reviewed by Michael Mishlove
This is the second of two books in a two-volume series — the first of which was Mental Disability Law, Evidence, and Testimony (2007). The book is subtitled “A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals,” but I think it falls far short of that lofty description.
The book begins with a history of disability discrimination law and an overview of key federal statutes, such as the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Fair Housing Amendments Act, the Individuals with Disabilities Education Act (IDEA), and the federal Family and Medical Leave Act, which, together with pertinent state laws, largely define the parameters of disability discrimination law. Although these chapters just scratch the surface, they are interesting and informative and provide a good lay of the land.
Employment, public services and accommodations, telecommunications, the Internet, housing and zoning, and education are addressed in subsequent chapters, which discuss the relevant federal statutes and regulations (and, to a minimal extent, state laws) and judicial decisions. The book adequately covers essential topics such as the laws’ substantive requirements and rights, core definitions, who the laws cover, sovereign immunity issues, enforcement schemes, procedural issues, remedies, and attorney fees, but the coverage is not comprehensive. The chapter on mental-disability-discrimination law borrows heavily from the first book in this series, and I found the chapters on representation and the client-lawyer relationship and expert evidence and testimony to be very uninformative.
The book has several shortcomings that significantly diminish its value and utility as a reference manual. A comprehensive legal reference manual should contain the relevant statutory and regulatory provisions. This book does not, and I repeatedly found myself searching through it to locate the express statutory language being discussed. The book’s table of cases lists the cases alphabetically, providing only the case name without citation or identification of the court or jurisdiction issuing the opinion. Consequently, the book affords no means, either through its table of authorities or otherwise, for readily locating citations.
I also found problematic the case law discussions, most of which amounted to little more than brief statements, strung together, saying that a court found this or that in a particular case without providing any factual detail. As is repeatedly noted throughout the book, many of the litigated issues in these areas (e.g., whether one is disabled as defined under the law at issue, and whether a given accommodation or modification is reasonable) must be determined on a case-by-case basis and are fact specific. Consequently, I did not find these bare statements apprising me of the holding in a case to be particularly instructive or illuminating.
Finally, it bears mention that the recent enactment of the ADA Amendments Act of 2008 will significantly affect many of the areas covered in this book. Therefore, this might not be the best time to buy this reference manual.
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2009 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple
by Sharon D. Nelson, John W. Simek & Michael C. Maschke (Chicago: ABA Law Practice Management Section, 2009). 234 pgs. $84.95. Order, (800) 285-2221.
Reviewed by Michael P. Maxwell
“A simple read bursting with helpful information” is the best way to describe the 2009 Solo and Small Firm Legal Technology Guide. My firm just went through a comprehensive upgrade of our desktop hardware and software technology, and I wish I had read this book first.
The book reads like a checklist for setting up a solo or small firm. The authors go through the necessary technology decisions and review the most common and popular hardware and software choices for legal applications. The book does an excellent job of going beyond the review of technology and software to actually provide specifications of what one needs in a typical desktop or laptop. For the technologically challenged, this is worth the purchase price alone. Having a set specification list for what you would typically need in a legal environment is invaluable for anyone who has listened to a computer company representative recite a litany of choices on things the customer has never heard of.
Early chapters focus on hardware. The authors recommend that a Windows XP downgrade be purchased with any new computer to allow you to get the Vista license and then downgrade to the XP operating system, because XP is a much more stable platform than Vista. The recommendations on monitors are solid, but the authors do not zero in on the advantages of a dual-monitor system, which can be an excellent boost to productivity. I currently use three monitors and wish I could add more.
Another important chapter focuses on servers. Without the right server, your entire system can become bogged down. The authors, who favor Dell devices, note that one of the most important decisions about a server centers on storage and back-up.
The authors even include a chapter on Smartphone devices. Smartphones, rather than just being a way to make a phone call, should now be thought of as elements of law office technology.
Other chapters deal with valuable topics such as utility programs, productivity software, and systems that can help automate the production of common documents and letters.
I highly recommend the book if you are considering hanging your own shingle or just want to review the latest technology for your solo or small firm.
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The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small-Town America
By Lauri Lebo (The New Press, 2009). 256 pgs. $16.95. Order, www.thenewpress.com.
Reviewed by Kenneth W. Krause
Law, much like religion, can inspire both the best and the worst in people. Most of us prefer to let others do the dirty work. But an intrepid few will occasionally break away from the pack to don the law like a crusader’s cape, or, perhaps, to wield it like a barbarian’s sword – depending on one’s perspective.
Such a person might stand up in court to defend a cherished principle – the sacred civil edifice of public education, for instance. In The Devil in Dover, Lauri Lebo, a reporter from Dover, Pennsylvania, offers an accessible and reliable account of plaintiff Tammy Kitzmiller’s struggle against the apparently intractable board members of the Dover Area School District. Although never appealed, Kitzmiller might be the most important Establishment Clause case since 1987, when in Edwards v. Aguillard the U.S. Supreme Court abolished the teaching of creationism in public schools.
In 2004, the school district ordered that the following statement be read to all biology students: “Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book Of Pandas and People is available in the library … for students who might be interested in gaining an understanding of what Intelligent Design actually involves.” What intelligent design actually involved, as Judge John E. Jones III eventually ruled, was religious creationism.
During depositions and at trial, school officials lied about their religious intentions (at a public meeting, for example, a board member cried, “Two thousand years ago, someone died on the cross. Won’t somebody stand up for him?”), and about how 60 copies of the Pandas text were procured. Nor did it help the board’s cause that, in the latest version of Pandas, the word “creationism” had simply been swapped with the more secular-sounding phrase “intelligent design.” Judge Jones wrote, “It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks.”
But one can hardly help but marvel at the persistence of these cabarets of official arrogance and absurdity. In 2008, Eugenie Scott, executive director of the National Center for Science Education, was forced into battle against Florida’s Academic Freedom Act, which encouraged teachers to highlight alleged “controversies” over evolution. And in March 2010, the Texas State Board of Education voted to require that students critically “analyze and evaluate” Darwin’s long-proved theories.
How can these displays be explained? Lack of education is neither necessary nor sufficient. Nor is religion – at least as a general proposition – to blame. “All these conflicts,” Lebo suggests, “stem from the same source.” “In the evangelical faith,” she observes, “witnessing for the Lord is more than just an expression of one’s fervent desire to spread the good news. Converting those who have not yet been washed in the blood of Christ is essential to practicing one’s religion.”
One’s belief in potential salvation supplies urgency; one’s confidence in the ability to help others attain that salvation demands earthly intercession. If you “truly believe this,” Lebo offers, “then how could anything else matter? The First Amendment, scientific reality, truth? All of this would mean nothing.” Amen to that.
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Lawyers in Your Living Room! Law on Television
Edited by Michael Asimov (Chicago: ABA Books, 2009). 432 pgs. $24.95. Order, www.ababooks.org.
Reviewed by Nicholas C. Zales
Lawyers in Your Living Room is a seven-part, 34-chapter compendium of essays by different authors covering the history of lawyers on television in the United States and abroad. Editor Michael Asimov introduces each part. From Perry Mason and The Defenders to L.A. Law, Matlock, The Practice, Law & Order, JAG, Rumpole, Judging Amy, Ally McBeal, and Boston Legal, the changes in lawyer portrayal on TV over time are discussed and illuminated.
The most significant change has been the move from depiction of a male-dominated profession, focused on criminal defense lawyers like Perry Mason, to shows featuring prosecutors, women lawyers and judges, and civil litigation. As society has become more diverse and complex, TV lawyers have mirrored the changes, and the focus has changed from heroic defense counsel to heroic prosecutors, such as Sam Waterston’s classic “Jack McCoy” on Law & Order. In the civil arena, shows like Boston Legal, Judging Amy, and Ally McBeal took on social, personal, and ethical issues that Perry Mason never faced.
Are lawyers and the law portrayed realistically on TV, particularly when it comes to ethics? Do lawyers on TV manipulate public opinion and create unrealistic expectations? Surprisingly, the chapters by lawyers who write for TV reveal they agree that their shows are unrealistic, because they focus on entertaining and garnering high ratings instead of portraying what lawyers really do. As they note, what most lawyers do, particularly in civil litigation, is too boring for TV. Likewise, time constraints limit just how much can be shown in an hour time slot. In the 1960s, a show averaged a 52-minute run time; today, the average is 42 minutes. TV shows focus on criminal trials for the drama, and characters in civil cases are constantly set in motion to avoid “talking-head” syndrome. Does the portrayal of lawyers on TV affect public opinion? It certainly does, but the authors leave unanswered the question of ultimate effect.
The lines between lawyering, judging, and entertaining on nighttime TV may be hard to discern, but as several essays here point out, daytime TV judges, like Judge Judy, blur the lines beyond recognition. These “judges” are predominantly minorities, and many behave in ways no real judge would, such as yelling at litigants. Many lawyers do not watch lawyer TV shows. This book might make them rethink that, because TV is a predominant societal force shaping how the public thinks and acts. To not watch how our profession is portrayed on TV, when so many nonlawyers do, leaves one at a disadvantage. At $25, this book is a bargain for the insights it provides into how lawyers are portrayed on TV and how this portrayal affects the real practice of law.
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