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    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 3, March 2012

    How to Start a Business and Not Get Sued: A Simple Guide to the Essential Legal Questions Every Entrepreneur Must Ask Before Starting a Business in Order to Stay Out of Trouble

    By Thomas C. Brown (Kansas City, MO: Thomas C. Brown, 2011). 129 pgs. $29.99. Order, www.amazon.com.

    Reviewed by Myron L. Joseph 

    This book is a basic and useful manual for individuals who wish to go into business, who are encouraged to focus on many of the issues (legal and otherwise) they should consider before beginning a new venture. The issues raised are ones that would immediately occur to any experienced business lawyer but might not occur to a person going into business for the first time.

    Each of the 13 chapters briefly discusses a relevant subject, provides helpful hints and suggestions, and then provides pages on which the client can write down notes and questions to discuss with the lawyer or other advisor. The book begins by asking whether the client should have a business plan, so that the client will really think about what is needed for the business and where he or she is going. It also points out other reasons why having a business plan might be useful, such as when talking to a banker about borrowing money for the business or with potential investors.

    Other chapters cover such subjects as the form of business entity, including the advantages and disadvantages of carrying on business as a sole proprietorship, a partnership, a limited liability company, or a corporation. Other subjects covered include how to finance the business, taxes, and types of personal and business insurance policies.

    The author goes on to discuss such subjects as business financing documents, promissory notes, purchase and sale contracts, and leases and encourages the business owner to have these legal documents reviewed by a lawyer before they are signed. A chapter is devoted to the advantages and disadvantages of buying an existing business or a franchise instead of starting a new business and the use of a business broker to see what businesses are available for sale.

    The author, who has more than 40 years’ business law experience, strongly encourages clients to consult other professionals, such as accountants and insurance agents, early on in this proposed venture. The book is one that a lawyer can use as a review of all the topics that should be discussed with the client in this situation and should be given to the client at the initial meeting so that future meetings will be more useful and productive, because the client will have given some thought to all the subjects highlighted above, and to others discussed in the book.

    Myron L. Joseph, Case Western Reserve 1961, Georgetown (LL.M. taxation) 1967, formerly was with the IRS Office of Chief Counsel and is now senior counsel with Whyte Hirschboeck Dudek S.C., Milwaukee, focusing on tax, corporate, and estate planning.

    The Lawyer’s Essential Guide to Writing

    By Marie Buckley (Chicago, IL: ABA Law Practice Management Section, 2011) 261 pgs. $79.95. Order, www.ababooks.org.

    Reviewed by Christopher P. Keleher

    Authors of legal-writing books face an unenviable task – discovering originality in an area almost devoid of it. Many forests have been felled on the topic of legal writing, and virtually every book, article, and seminar echoes the mantra: be persuasive, be succinct, be clear. But ask judges about the matter, and their grimaces confirm that lawyers continue to ignore these essentials. One book that attempts to bridge that writer-audience disconnect is The Lawyer’s Essential Guide to Writing. It does not disappoint.

    Brimming with invaluable techniques, this book is best absorbed in small doses. The tips run from the prosaic – avoid starting sentences with “there” – to the profound – winning the battle for your readers’ attention. While the former is instructive, the latter is what distinguishes this book. The author emphasizes the proper writing mindset, a point that is pushed to the periphery, if addressed at all, in most legal writing manuals. Writers must show consideration for their reader. Yet too often lawyers forget a judge’s time is finite. Making it easy for the reader is the book’s theme, and the author offers numerous ways to achieve this, including attention-grabbing introductions, frequent use of subheadings, and powerful verbs.

    Dismissing the author’s recommendations about word choice, sentence structure, and punctuation as personal style preferences would be wrong. Clear writing is a matter of substance that all lawyers must embrace. The author correctly notes that by varying sentence lengths, excising needless words, and dissolving long paragraphs, you will make your position better understood. Your audience will also appreciate not having to work to get your point.

    The author’s passion for legal writing is clear and her belief that legal writing can be lively and engaging is accurate. Every brief is a blank canvas on which a writer can project originality and creativity. Embrace the opportunity by drafting a brief that is clear, concise, and powerful. This book provides the framework.

    My effusiveness for this book is slightly tempered by the fact that it includes matters relating to letters, emails, and blogging. Good writing in these media is important, but such topics seem ill-fitted for a book devoted largely to briefs and motions. One other cavil is the $80 price. While the content is worth it, some may find the price steep. But those deterred by the cost should consider that persuasive writing wins cases and victories beget new clients. Consider this book an investment that will pay dividends for years.

    In sum, the author knows writing. And whether you are a newly minted lawyer or a seasoned veteran, immersing yourself in this book will do a great service to your practice, clients, and readers.

    Christopher P. Keleher, Chicago, is a former Seventh Circuit judicial clerk. He writes on legal writing and presents continuing legal education seminars on legal writing for an appellate audience.

    Why the Law Is So Perverse

    By Leo Katz (Chicago, IL: Univ. of Chicago Press, 2011). 239 pgs. $35. Order, www.press.uchicago.edu.

    Reviewed by John Holevoet

    An attempt to explain law’s idiosyncrasies could fill volumes. This book approaches legal inconsistencies using the framework of social-choice theory, which has been used to explain voting perplexities. While Katz claims the book is not meant to be overly academic, it is not light reading.

    The first legal paradox the author examines is why the law spurns win-win transactions, such as specific performance or the voluntary assumption of high risk. After a protracted discussion of the key principles associated with social-choice theory, Katz reaches the rather commonsense conclusion that win-win transactions are frowned on because determining who should win is not always easy (a cycling between different parties or outcomes is possible) and seemingly win-win outcomes sometimes conflict with notions of fairness.

    Next, Katz examines why the law contains so many loopholes. He looks at how courts have dealt with loopholes and concludes the logic behind these judicial approaches is the “Mismatch Theory,” that is, laws are often over- or underinclusive. Katz spends the remainder of this section showing why the mismatch theory is an inadequate explanation of legal loopholes. Instead, he suggests that Arrow’s theorem (an outgrowth of social-choice research that stands for the proposition that a truly objective voting system is an impossibility) is the reason for loopholes. Katz argues that the theorem is applicable to decision-making processes, including those in the law, that rely on multiple criteria.

    The third legal paradox Katz explores is why the law is so either/or, disregarding the possibility of outcomes on a continuum. One example Katz uses is consent: the question of whether consent has been given is supposedly an absolute, thereby glossing over the many situations attorneys encounter in which the existence of consent is far from clear. But Katz ignores the fact that while the law does have an affinity for either/or results in litigation, the more common result is often a negotiated settlement that usually embraces the middle ground.

    Finally, Katz looks at the question of why society does not punish all that it condemns, for example, why we might disfavor ingratitude more than certain petty infractions, but we nevertheless do not criminalize it. Katz acknowledges that as a practical matter, overcriminalization is more of a concern, but he delves into undercriminalization as a matter of intellectual interest. He concludes that undercriminalization occurs because of conflicting views over how to rank different blameworthy actions. In other words, life is complicated.

    The last section is a perfect summation of the book. It begins by acknowledging that the discussion will not be practical and ends with a conclusion that is obvious and not at all enlightening. This book has no appeal as a practical guide for lawyers. Sad to say, it also is not an appealing read for those curious to explore the perversities of the law, because the outcomes Katz reaches tend to be conclusory and his methodology is often unnecessarily technical.

    John Holevoet, U.W. 2009, is a criminal defense attorney based in Madison.

    The Lateral Lawyer: Opportunities and Pitfalls for the Law Firm Partner

    By Adam Samuel Weiss (Jersey City, NJ: Lateral Lawyer Publications LLC, 2011). 51 pgs. $15.80 paperback, $9.99 Kindle edition. Order, www.amazon.com.

    Reviewed by Richard Binder

    I think it was the Three Stooges who introduced the law firm of Dewey, Cheatham & Howe to the American public. It’s a well-understood word gag that plays on the unflattering public perception of how lawyers treat the masses. In The Lateral Lawyer, the author uses Dewey, Cheatam & Howe as the name of the law firm in his case study of the recruiting process. Wow! Is this how lawyers treat other lawyers, too? The purpose of The Lateral Lawyer is to promote the use of professional recruiters by lawyers who want to move to different law firms. Looking for a new job while working at the old is tricky (or sneaky) business. You may need someone to help “navigate firm dynamics.”

    The book (really a pamphlet) covers the entire recruiting process. Using a recruiter allows your name to be given to prospective firms by someone other than you. That way, you can “maintain your posture as a partner who is not seeking to leave your current firm.” In fact, the recruiter can supply your name to several firms at the same time so as to create a market for your services. It sounds a bit like an auction. The book discusses what to expect at interviews and how to fill out those pesky questionnaires you may be given. The recruiter can help you determine how much information to give a prospective firm. Items like your book of business, portability of clients, and billing rates are important to a prospective firm.

    A tricky issue is how forthright you should be. Candor is good, but too much of a good thing is self-defeating. You should be human, but not flip. If you want to ask the prospective firm hard questions (“Why have partners and clients left this firm?”), you should wait until after you have an offer in hand. If you are going to talk about anything potentially negative, talk about your “good weaknesses,” such as working too hard and being a perfectionist.

    The Lateral Lawyer is not a legal book as we know it. No cases are cited and little Latin is used, but it does have its share of sports metaphors and catch phrases. It’s a long advertisement for the use of legal recruiters. At one point it talks about passing the “sniff test” at the initial interview. I’m not so sure this book passes the test.

    Richard L. Binder, U.W. 1973, is a senior partner with Rohde Dales LLP, Sheboygan. He has been the reporter for the General Practice News (now the Solo/Small Firm & General Practice News) since 1989.

    Want to review a book?

    The following books are available for review. Please request the book and writing guidelines from Wisconsin Lawyer managing editor Karlé Lester, at klester@wisbar.org or (608) 250-6127. Reviewers may keep the book reviewed. Reviews of about 500 words are due within 45 days of receiving the book. Reviews are published in the order received and may be edited for length and clarity.

    • Alcohol Beverages Regulation in Wisconsin, by Aaron R. Gary (Madison, WI: State Bar of Wisconsin PINNACLE, 2012). 1,121 pgs. $159 (members), $235 (nonmembers).
    • Buy-Sell Agreements, by Eric A. Manterfield (Philadelphia, PA: ALI-ABA, 2011). 166 pgs. $159.
    • Commercial Real Estate Transactions in Wisconsin, by Harvey L. Temkin at al. (Madison, WI: State Bar of Wisconsin PINNACLE 2010). 590 pgs. $155 (members), $195 (nonmembers).
    • Criminal Interrogation and Confessions, 5th ed., by Fred E. Inbau, John E. Reid, Joseph P. Buckley, Brian C. Jayne (Burlington, MA: Jones & Bartlett Learning, 2012). 449 pgs. $125.95.
    • Lawtalk: The Unknown Stories Behind Familiar Legal Expressions, James E. Clapp, Elizabeth G. Thornburg, Marc Galanter, Fred R. Shapiro (New Haven, CT: Yale Univ. Press, 2011). 368 pgs. $45.
    • Professional Services Marketing 3.0, by Bruce W. Marcus (East Hampton, NY: Bay Street Group LLC, 2011). 219 pgs. $74.50.
    • Restatement of the Law (Third) of Property: Wills and Other Donative Transfers, by The American Law Institute (St. Paul, MN: American Law Institute Publishers, 2011). 757 pgs. $131.



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