Vol. 77, No. 4, April 2004

Book Reviews

• Corporate Ethics: The Business Code of Conduct for Ethical Employees
• A Jury of One's Own
• Toxic Mold Litigation
• Lease Negotiation Handbook

• To review a book

Steven R. Barth begins and ends Corporate Ethics on an appropriately unsettling note: Enron. Barth, a transactional and securities attorney, begins by stating that publicly traded companies are now legally required to adopt and implement corporate codes of conduct, as a result of recent dramatic and far-reaching corporate collapses like Enron. He ends by placing the 30-page "Enron Code of Ethics July 2000" in the appendix. In between, he emphasizes that proper adoption, implementation, and enforcement are critical to the effectiveness of a company's code. "If your company does not live your code, it won't be effective." "Look no further than Enron for an example. Enron had a wonderful written code of conduct."

Businesses should remember that point as they consider using this valuable handbook. When developing a code of conduct that adapts to its culture, a business can choose from three general types: rules-based, principal-based, or comprehensive codes. Corporate Ethics provides specific guidance for developing codes of conduct covering ethical treatment of customers, suppliers, the company, competitors, employees, and the community. Specific corporate obligations also are covered regarding confidentiality, complying with the law, maintaining a company's financial integrity, political activities, and international business ethical considerations.

Barth shares considerable business law expertise in an excellent, straightforward manner, while emphasizing several points. First, it is good business to operate ethically, as reflected in the results of two cited studies. A 1992 Harvard study of 207 large U.S. firms concluded that firms with an "ethic focus" had greater increases in revenue, workforce, stock prices, and net income. A 2002 McKinsey Investor Survey found post-Enron that a majority of "investment fund managers avoid poorly governed companies" and "that they buy or sell a company's stock based on their corporate governance practices." Second, corporations may be subject to civil and criminal penalties for unethical conduct. In the case of insider trading or tipping, for example, penalties can include "up to three times the profit gained or loss avoided, and imprisonment." Third, an effective code enhances a corporation's values, image, reputation, honesty, morale, and communications. Finally, an effectively implemented code prevents employees' illegal or unethical activities or reduces corporate liability when such activities occur. It's simply smart business. That's the bottom line.

A Jury of One's Own

By Dan Bell (Edgewater, FL: Denlinger's Publishers Ltd., 2003). 191 pgs. $11.95 paperback, $6.95 electronic (plus S&H). Order, www.galaxymall.com.

Reviewed by Thomas P. Solheim

Trial lawyers, like surgeons, are sometimes required to act so audaciously that they cannot be expected to have the usually expected sense of human fallibility and humility. As one seasons, such occupational traits become more embedded in a person's character. Gant, the main character of A Jury of One's Own, exemplifies these phenomena. He is a seasoned lawyer, practicing criminal law and other trial specialties in a small firm in Madison, but he has flaws.

Dan Bell's tale humorously recounts Gant's work on a trial for a motorcycle gang member accused of homicide, his stormy relationship with his law partners, and his journey into the past to attend a high school reunion in North Carolina. The journey recapitulates the author's migration from our law school days at the University of Wisconsin, through his early practice with Jack McManus and others in Madison, on to the Cape Fear area of North Carolina. Bell now practices law, writes, and sails his 34-footer, Irish Eyes, out of Kure Beach, N.C. This is his first published novel.

Gant has developed a symbiotic relationship with the local chapter of motorcycle outcasts. He takes the occasional criminal or tort case for them and they serve as a steady referral source, much to the distaste of his more discriminating law partners. In the latest case, in which one of the leaders lost control of his bike to the permanent detriment of his passenger, Gant has made some big promises to his client. Complications arise with the client's gang colleagues, Gant's partners, fee arrangements, and the prosecuting attorney with whom Gant has previously shared a very personal relationship. This provides fertile ground for the blooming of Gant's hubris and for Bell's rich dialogue and narrative. In this excerpt the main character is searching for a legal strategy that will give him some chance of success in his ill-considered engagement:

"Gant paced the thick carpet in front of Larry the Law Clerk. Good kid, he thought. Smart, quiet, respectful. Full of the ignorance, innocence, and faith in the law which had been undisturbed by his formal education. A student's typical bipolar view - black or white, good or evil, right or wrong. After two years here, Gant knew, he'd understand lawyers keep these ideas displayed on a shelf like precious antiques, well-cared for but rarely used. He'd learn to use instead the gray-colored tools of the trade such as mitigating circumstances, ambiguities, and reasonable doubt."

The same cynical self-confidence (over-confidence?) that leads Gant to embrace a serpent by exploiting his relationship with the gang also leads Gant to plan a triumphant, in-your-face return to his high school reunion, in the role of an outlaw biker. The persona is a total fiction, but thoroughly prepared (as befits a trial lawyer). He takes an intensive course in biker-outlawry and even acquires a rent-a-biker-chick. As the reader becomes acquainted with Gant, and watches as the stage is set, the sense that "no good can come of this" is palpable.

The portrayal of biker life, both with Gant's clientele and with his reunion odyssey, is not so much verisimilitude as fantasy. Dan Bell went through a biker stage but not as a member, or even a groupie, of a gang. This subcommunity of the book's population is depicted in the spirit of camp and fun, not as journalistic documentation.

Bell's novel is entertaining, with a special appeal to lawyers. His writing, like that of Tom Robbins, the author of the hilarious Fierce Invalids Home from Hot Climates, has a spirit of irreverence and iconoclastic comedy. Attorneys, and perhaps many others, however, also may see it as a Greek tragedy or a morality play: It reminds us that whenever we are obsessed with saving others or teaching them a lesson, we are probably destined primarily to learn a difficult lesson ourselves.

Toxic Mold Litigation

By Raymund C. King (Chicago, IL: ABA Tort Trial & Insurance Practice Section, 2003). 196 pgs. $125. Save 10%.

Reviewed by Tristan R. Pettit

Toxic mold has been described by some as the next litigation frontier, much like asbestos claims were years ago. Thus the recent publication of Toxic Mold Litigation could not have been more timely. This handbook was authored and edited by various members of the self-titled "Mold Team," a group of defense lawyers from a Dallas, Texas, defense firm focusing on toxic mold litigation.

Described as a "practical handbook designed to assist both the seasoned litigator as well as the new associate in working up and litigating a mold claim," this handbook suffers from trying to do too much for too many. While most of the chapters are specific to toxic mold litigation and very comprehensive, certain chapters - those apparently appealing to the "new associate" - digress into basic litigation information that feels out of place next to the more complicated and detailed information that comprises the majority of the text. Topics such as dealing with jurors' preconceptions, using themes to communicate your client's case to the jury, and the pros and cons of using focus groups versus mock trials, should more appropriately be included in a general primer on litigation, not in a handbook devoted to toxic mold litigation.

When the authors focus on their true audience - the more seasoned litigator - the handbook proves to be very worthwhile. They provide a nice survey of mold cases from around the country, provide a protocol for systematically analyzing mold claims, and include an overview of the types of experts that may be used in mold litigation.

One of the most enlightening chapters of this handbook details the science behind the microscopic fungi that we call mold. The authors explain the basics of the human immune system and then segue into recent scientific advances that support and negate the causation arguments that are at the heart of many toxic mold claims. A thorough discussion of the possible effects of exposure to toxic mold also is included. While clearly written from the defense attorney's perspective, the authors do a nice job of providing material that will assist attorneys working on either side of the issue.

A considerable portion of text analyzes the insurance coverage issues that typically arise in toxic mold litigation. The authors also survey both federal and state legislation pertaining to mold issues. The chapter focusing specifically on issues related to expert witnesses unfortunately attempts to appeal to a larger audience than is necessary and thus digresses into topics like how an expert's opinion must be grounded in facts supported in evidence, how expert witnesses must possess expert qualifications, and how expert testimony on matters within the common knowledge of the jury are not admissible. These are topcis with which anyone handling a toxic mold case, or any piece of complex litigation, should already be very familiar.

The 53 pages of forms, checklists, and other aids to assist both counsel for the plaintiff and the defendant should prove to be very helpful. These aids include form interrogatories, requests to admit, requests for production of documents, deposition checklists, checklists for the cross-examination of medical experts in toxic mold cases, and sample release forms. Inclusion of a diskette containing these forms would have been useful.

Overall, Toxic Mold Litigation is a helpful handbook that should assist experienced trial lawyers handling mold claims, provided they are prepared to weed through some of the basic and unnecessary information that the authors included to appeal to a larger audience.

Lease Negotiation Handbook

Edited by Edward Chupack (Philadelphia, PA: ALI-ABA, 2003). 782 pgs., with CD-ROM. $169. Order, (800) 253-6397.

Reviewed by Lee R. Ferderer

Like many fields in our modern economy, the world of commercial real estate has become so complex and specialized that it has evolved into its own discipline in both law and business. The general practitioner or non-real estate attorney can from time to time, however, find himself or herself in the uneasy position of having to provide legal advice on drafting or negotiating a commercial lease. Uniquely, an attorney might be called on to represent one side of the law (tenant) on one occasion and the opposite side (landlord) on another. The strength of the Lease Negotiation Handbook is that it examines every aspect of modern commercial lease negotiations from both of these perspectives.

This handbook discusses the entire lease negotiation process from pre-lease issues, such as the use of letters of intent, through the termination
of a lease, whether by expiration of the term or default of one of the parties, and everything in between. Each chapter focuses on one area of the lease or lease transaction process
and is made up of two or more articles written by distinguished commercial real estate lawyers or leasing professionals. Each article takes either the tenant or the landlord's perspective in its discussion of the topic. Many of the authors share sample forms and checklists, conveniently provided on
a CD-ROM.

The book is suitable for a wide audience. Within its 700-plus pages, the leasing expert will find an informative discussion of the interplay of various lease provisions as well as additional information and opinions to challenge or supplement previously held convictions. At the same time, the leasing novice will find an easy-to-read primer on nearly every conceivable aspect of lease negotiations. In either case, when preparing to negotiate a lease or when participating in a difficult lease negotiation, the Lease Negotiation Handbook is an excellent resource to gain insight on a specific leasing topic or to appreciate the opposing party's vantage point.

Wisconsin Lawyer