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  • Wisconsin Lawyer
    March 31, 2008

    Book Reviews

    Wisconsin Lawyer
    Vol. 77, No. 9, September 2004

    Book Reviews

    Book: The Winning ArgumentCopyright and Publishing Law, Third Edition

    By Ellen M. Kozak (New York, NY: Henry Holt & Co., 2004). 141 pgs. $13.

    Reviewed by Prof. Ramon A. Klitzke

    Every Writer's Guide to Copyright and Publishing Law should be on the desk of every writer who has any thought of publishing. Attorneys interested in publishing law also should read the guide.

    When I reviewed the first edition of the guide (63 Wis. Law. 26 (Sept. 1990)) and the second (71 Wis. Law 28 (Feb. 1998)), I pointed out that the author's extensive experience in educating lawyers and counseling authors clearly qualifies her to write this book. A published writer myself, I've met many authors who relied heavily on the earlier editions of this guide.

    The guide is directed to general principles of U.S. law related to literary works. The 24 chapters include ones on the legal system, exploiting copyrights, copyright notice, registration and related areas of law, to mention only a few of the necessary tools for the author-publisher. The guide will be a continuing resource for authors and attorneys alike.

    Since the 1997 edition, copyright law has progressed immeasurably because of technological and global market changes. The Digital Millennium Copyright Act (DMCA) of 1998, the Sonny Bono Copyright Term Extension Act of 1998, and the Technology, Education and Copyright Harmonization Act of 2002 are just some of the laws Congress has passed.

    With the passage of the 1998 Bono Act, the "life-plus-50-years" copyright duration became "life-plus-70-years," except for anonymous and pseudonymous works and works made for hire. Those are protected for 120 years from creation or 95 years from first publication, whichever is sooner.

    Since publication of the second edition, the U.S. Supreme Court decided New York Times Co. v. Jonathan Tasini (2001). The Court held that the Times, absent permission, had no right to sell articles bought from freelancers to online services. Once an article appears online, it loses its resale value. But now many larger papers require such authorization as part of the purchase of the article.

    The third edition of the guide is much easier on the eyes than was the second. The page size is larger and the type font is sharper. A complete index is included.

    I strongly recommend the new edition of Every Writer's Guide to Copyright and Publishing Law to any lawyer who might face a question from an author.

    Ramon A. Klitzke, Indiana 1957, LL.M. N.Y.U. 1958, is professor emeritus at Marquette University Law School, where he taught for 27 years.

    Taking and Defending Depositions

    By Stuart M. Israel (Philadelphia, PA: ALI-ABA, 2004). 344 pgs. $89. Order, (800) 253-6397.

    Reviewed by Dustin T. Woehl

    This book purports to be a handy, easy-to-read guide for litigators at all levels of practice. It is definitely easy and even fun to read. The author writes with wit and humor, referencing Sergeant Joe Friday, Rambo, Bill Clinton, Ray Charles, Gary Cooper, Sherlock Holmes, the Bible, and Bentham. The guide also contains illustrative and often humorous deposition transcripts. The entertainment, however, bloats the writing, leaving it rather loose. I sometimes wished the book would make its point and move on. Also, the discussion is keyed to the Federal Rules of Civil Procedure, requiring the Wisconsin reader to translate these to the Wisconsin rules for citation in depositions or in court.

    I first judge this book by its cover, which is physically too firm. This makes it harder to keep open to read, take notes in, or photocopy. My copy actually split in two, resulting in loose pages. The book is organized in four parts. The first and broadest section covers deposition uses, alternatives, advantages, and drawbacks. This part should stimulate even seasoned litigators to think creatively about using depositions in new ways. Part two discusses deposition fundamentals, rules, principles, mechanics, strategies, practices, and planning. However, it merely foreshadows the discussion in part four and could be condensed or eliminated. Part three discusses coaching deponents. It includes 13 deposition fundamentals and a select 162 essential rules for deponents. Part four could stand alone. It includes helpful "nuts and bolts" information on taking and defending depositions, and includes topics such as deposition outlines, transcript awareness, formulating questions, and dealing with objections. The checklists in this section will be helpful in preparing to take and defend depositions.

    The book also contains several forms, including notices of deposition, a motion to compel a deponent to answer questions, and a motion to limit the deposition scope. These should be helpful for anyone preparing these documents for the first time. The author also includes the Federal Rules of Civil Procedure that address depositions. This could help but is probably unnecessary. The actual text of the rules isn't necessary to understand the related discussions in the book. A litigator relying on the rules for any other purpose should own or consult a current official version.

    Overall, Taking and Defending Depositions is an entertaining, thought-provoking, and useful deposition guide. However, its relaxed and enjoyable writing, too-firm cover, and reliance on the federal rules rather than the Wisconsin rules make it less handy for one who litigates in Wisconsin state courts than it otherwise could be.

    Dustin T. Woehl, Univ. of Pennsylvania 2000, is an associate at Kasdorf, Lewis & Swietlik in Milwaukee, where he practices civil litigation and insurance defense law.

    Uneasy Alchemy: Citizens and Experts in Louisiana's Chemical Corridor Disputes

    By Barbara L. Allen (Cambridge, MA: The MIT Press, 2004). 224 pgs. $22. Order, (800) 405-1619

    Reviewed by Peter A. Tomasi

    The chemical corridor between Baton Rouge and New Orleans is home to more than 120 chemical plants, and high rates of cancer and respiratory illness in the area have earned it the moniker "Cancer Alley." The area's reputation as an ideal place to site chemical plants because of its marginalized population and friendly government helped spawn the environmental justice movement. In Uneasy Alchemy: Citizens and Experts in Louisiana's Chemical Corridor, Barbara Allen, a "participant-activist" in environmental disputes, examines the way that citizen activists and experts of various stripes interact in disputes over the siting of those large-scale industrial facilities in the corridor. Using ethnographic analysis of interviews with activists, citizens, government agency actors, and corporate experts, Allen analyzes the mixed results of environmental justice challenges and the factors leading to successful environmental justice challenges.

    Allen uses the battle to site a $700 million plastics plant outside of Geismar, La., as the foundation to a theory of successful citizen organization and action. Local residents, assisted by outside experts and the Tulane Environmental Law Clinic, challenged the permitting decision for the proposed plant. The mix of local citizens temporarily allied with expert-activists ultimately forced the company to build a substantially smaller facility on a different site, even though Tulane Environmental Law Clinic was stripped of most of its capacity to represent environmental groups by the Louisiana Supreme Court during the tail end of the permitting challenge.

    Although Allen spends a significant amount of time developing a theory of citizen action, the underlying story of the Louisiana chemical corridor is the most compelling portion of the book. The unpredictable mix of race, class, historic business-friendly policies, and endemic poverty interact in different and sometimes surprising ways. Allen is at her best when detailing the results of her ethnographic research and contrasting the different views of all the individual players on the environmental scene in Louisiana, such as the views of local residents who distrust large corporations, against the views of other residents and regulators who questioned the motives and commitment of national environmental organizations involved in the challenge.

    Peter A. Tomasi, Duke 2001, practices with Quarles & Brady, Milwaukee.

    Plan While You Can: Legal Solutions for Facing Disability

    By Roger W. Andersen (Toledo, OH: 1stBooks, 2003). 134 pgs. Order,

    Reviewed by Cydney Rabourn

    A long-held legal maxim states that the bestower of a gift has a right to regulate its disposal. But history has shown us that planning ahead for future disabilities and death is often a last minute thought. Pondering our inevitable demise, it seems, is a thought few of us care to dwell on. Author Roger Andersen encourages us to change our ways and provides an easy to use guide in Plan While You Can: Legal Solutions for Facing Disability, which is his effort to provide to nonlawyers basic information to help craft individualized solutions for potential disabilities.

    The author describes the book as a tool for both individual and family planning. It is designed for those who are lucky enough to think ahead and who are able to make well-informed decisions about the opportunities available in the realm of disability, incapacity, health care, and estate planning. Each section provides a list of topics and questions designed to enable the reader to be an informed member of the planning process, and encourages planners to be active and creative in designing an approach that best fits their individualized needs. As the author indicates, the book is to be used as a reference only and suggests that proper planning for disability requires a team of advisors including attorneys, insurance agents, accountants, bankers, and various other professionals as warranted. At only 131 pages, the book is a quick read.

    A word of caution about this book. Andersen on numerous occasions encourages readers to come up with imaginative and creative solutions to their situations without providing a warning that certain requests may not be capable of being combined with other aspects of the planning process. For simple family planning, delving into the novel may create more problems than solutions and may serve to thwart the wishes of the very people for whom you provide early protection. There also is very little information provided to the reader about the varying complexities of each state's estate statutes and regulations. While the author encourages the reader not to use a cookie cutter plan, he fails to drive home the point that no state has cookie cutter disability and estate planning laws.

    Andersen does an excellent job of encouraging the reader to think ahead, to ask questions, and to actively communicate with those who are involved in the planning process. He also does a good job of reminding readers that they are not invincible and that taking small steps now can save money and heartache for loved ones later.

    Cydney Rabourn, University of Iowa College of Law 2003, is licensed to practice in Wisconsin and currently is with the Federal Trade Commission Bureau of Competition in Washington, D.C.

    Hiding from Humanity: Disgust, Shame and the Law

    By Martha C. Nussbaum (Prince-ton, NJ: Princeton Univ. Press, 2004). 413 pgs. $29.95. Order,

    Reviewed by Jack Stark

    Martha Nussbaum began her career as a specialist in ancient philosophy. The sweep of her development is evident in her appointments at the University of Chicago: Philosophy Department, Classics Department, School of Law, and Divinity School. She also has become a tenacious polemicist, for example as a defender of disabled persons. She has combined those interests and others in Hiding from Humanity.

    In the book's first section Nussbaum concentrates on guilt and shame and their relations to nonlegal concerns. She believes, as do cognitive psychologists, that emotions and thought are intertwined. She acknowledges that shame and guilt are, on rare occasions, beneficial but asserts that they have many negative consequences because they are based on a repudiation of human imperfection and lead to a denial of humanity and then to stigmatization of certain groups. That is, their thought content is nonhelpful.

    In the book's second section Nussbaum concentrates on the interaction between the law and those two emotions. She posits the desirability of a liberal society, one that fosters human dignity, equality, diversity, self-actualization, and liberty. From that height she surveys several areas of the law, including the penalties for homicide, the law of nuisance and the law of obscenity. She notes that the law both protects citizens from shame and disgust and uses those emotions as means of control.

    More rigorous editing could have removed some stylistic infelicities and repetitions. However, her subject is interesting; she is enormously learned and intellectually subtle and she casts considerable light on important topics. This book would interest most lawyers who wish to understand the law in the context of other disciplines, and it would be particularly attractive to lawmakers and judges.

    Jack Stark, U.W. 1979, is retired from the Legislative Reference Bureau and is the author of The Wisconsin State Constitution: A Reference Guide, six other books, and many articles.

    Common Sense Rules of Advocacy for Lawyers

    By Keith Evans (Alexandria, VA: TheCapitol.Net Inc., 2004). 240 pgs. $35. Order,

    Reviewed by Jason J. Hanson

    For the trial attorney, like everyone else, practice makes perfect. We develop our skills of persuasion by actually attempting to persuade, whether in prefiling negotiations, motion practice, appellate writing, or at a trial. While reading a book could never be an effective replacement for engaging in these activities, this book may help keep our skills honed.

    The author makes the following promise regarding the book: "If you devote three minutes a day to reading something in it, then another seven minutes thinking about what you have read, in two months you will already be better than 85 percent of the competition." Undoubtedly, a lawyer will benefit from spending 10 minutes a day thinking about at least one of the 100 rules of advocacy presented in the book. These rules vary from the simple "You must dress appropriately" to more thought provoking ones like "If you don't do re-direct well, it's better you don't do it at all."

    The book presents each rule followed by an explanation of the rule. The explanations are generally short and sometimes fail to clearly lay out the logic behind the rule. The book assumes a level of trial experience on the part of the reader. For these reasons, I would not recommend this book for use as a trial advocacy textbook or for the new lawyer. I would fear that a student or new lawyer could either misinterpret a rule or not know when to refrain from applying a particular rule in a unique situation.

    The rules presented are sound and the book is easy to read. It is conducive to being read in short increments, as might well be the case for a busy trial lawyer or for one just using it to brush up. I recommend that trial lawyers have this book on their shelves for use as a refresher, in preparation for a trial, or as the basis for daily reflection on trial advocacy.

    Jason J. Hanson, U.W. 1998, is an assistant district attorney in the Dane County District Attorney's Office, currently prosecuting drug offenders. He previously served as a deputy district attorney and as an administrative law judge with the Division of Hearings and Appeals.

    Famous and Well-Known Marks, 2d Edition

    By Frederick W. Mostert (New York, NY: International Trademark Association, 2004). 517 pgs. $245. Order,

    Reviewed by Jennifer L. Amundsen

    In Famous and Well-Known Marks, Frederick W. Mostert, principal author and editor, and a team of experts from around the world have compiled a wealth of information on the title subject. Going beyond a discussion of proper infringement analysis for famous marks, the book addresses such topics as famous trade dress and "get up," customs enforcement, rights of publicity, and geographical indications, to name a few. It also offers individual analyses for many of the more important commercial countries, written by trademark lawyers (from those countries) whose names often are familiar. The extensive annotations include cases from countries in every part of the world, and a table of cases and alphabetical list of marks put them at your fingertips. Finally, the book includes appendices with extracts from the more important sources of supranational trademark law.

    I found the anti-counterfeiting section to be particularly interesting. Rather than simply recounting the issues involved, the authors actually lay out all the elements they believe are necessary to prevent, discover, and halt counterfeiting activities. A comprehensive plan, it covers everything from the importance of exercising centralized corporate control over the program to cooperating with industry leaders and local authorities. Those engaged in the design or implementation of an anti-counterfeiting program can use this as both a source of ideas and a checklist for the finished product.

    Famous and Well-Known Marks is well-written and will be a valuable resource for some trademark practitioners. For example, I would recommend it as a reference for in-house counsel dealing with potentially famous marks or outside counsel who advise them. It also could serve as a practical guide to foreign law in the countries covered in individualized sections. Although the book's narrow focus makes it unlikely to be a practical reference for many attorneys, I found it appealing based on academic interest in trademark law.

    Jennifer L. Amundsen, U.W. 2003, is a partner at the Madison firm of Smith & Amundsen. She focuses her practice on trademark and other aspects of intellectual property law.

    Kill Now, Talk Forever: Debating Sacco and Vanzetti

    Edited by Richard Newby (Bloomington, IN: 1st Books, 2003). 662 pgs. Paperback, $20.95; Electronic, $6.95. Order, (800) 839-8640.

    Reviewed by Joshua E. Kastenberg

    In the history of United States jurisprudence, the prosecution of individuals belonging to political organizations outside of mainstream political thought generally has had as much to do with a trial of ideology as a criminal trial. Moreover, political cases, as opposed to celebrity trials, have a tendency to leave a lasting imprint on the practice of law, in part, because such cases are historically viewed as unfair. Indeed, since the turn of the last century, in prosecutions of individuals such as Tom Mooney and Julius and Ethel Rosenberg, trials of ideology underlie the prosecution of the individuals. In a politically charged environment, questions of guilt or innocence, or a fair trial, or the decision to charge at all resonate long after a sentence is carried out. Such was the case of the 1921 trial of Nicolo Sacco and Bartolomeo Vanzetti.

    Both Sacco and Vanzetti were Italian immigrants, and both were associated with a growing anarchist movement. Indeed, from the end of the Civil War through the 1930s, the United States experienced a large degree of political tumult. Moreover, the assassin of President William McKinley was an avowed anarchist. Both anarchism and communism made inroads into the country and grew to a point that 1919 became known as the year of the "Red Scare." Politically powerful "nativist" organizations seeking to curb non-Western European immigration predated these communist and anarchist movements. Thus, on May 5, 1920, when "Italian looking" men were witnessed robbing and shooting a paymaster and his clerk in Dedham, Massachusetts, the local government was certain the crime was politically motivated.

    The trial of Sacco and Vanzetti resulted in a guilty finding and death penalty for both. For years afterward questions of their guilt or innocence, or whether they received a fair trial were debated by individuals with the highest standing in law, politics, and public esteem. This list included Supreme Court Justices Felix Frankfurter and Oliver Wendell Holmes, scientist Albert Einstein, political scientist Walter Lippman, and author Upton Sinclair.

    Author Richard Newby does not directly analyze the Sacco and Vanzetti trial. The unique structure of the book leaves it to the reader to determine whether Sacco and Vanzetti were guilty and whether they received a fair trial. The first two-thirds of Kill Now, Talk Forever consists of the surviving but incomplete record of trial. Attorneys versed in appellate practice will appreciate the detailed objections, statements from the bench, and arguments by counsel. The formal evidentiary rules familiar today did not exist in 1921, so the bulk of objections are rooted in competency statements, rather than numerical rule-based objections.

    However, there are readily apparent objectionable issues within the trial record. For instance the prosecution was permitted to have witnesses state that certain individuals appeared "Italian," as well as to present evidence that Sacco and Vanzetti evaded the 1917 draft. Moreover, jury instructions to the all-male Caucasian jury were lacking in safeguards currently taken for granted: witness identification, credibility and bias, character, prior inconsistent statements, and so on. As in most cases of appellate reading, the trial record is bereft of information regarding the physical conduct of the parties and audience. Thus, the reader has to judge whether the defendants received a fair trial by outdated 1921 standards.

    The final third of the book consists of heavily edited written opinions and statements made by commentators, persons familiar with the case, and historians since the trial. Finally, Newby poses several questions to consider regarding guilt or innocence, and whether a fair trial occurred. While Kill Now, Talk Forever, provides some insight into the trial, it falls far short of providing enough information to answer these basic questions. However, studies of political trials such as the trial of Sacco and Vanzetti should remind practitioners and the bar alike that the unique prosecutorial discretion to bring any case to trial, as well as the conduct of a case, potentially creates a history of confidence, or the lack thereof, in the administration of justice. This is a reminder as salient today as it was in 1921.

    Major Joshua E. Kastenberg, Marquette 1996, LLM Georgetown 2003, USAF JAG Corps, is stationed in Germany and advises United States and NATO commands on international and criminal law. He has both prosecuted and defended individuals in more than 100 criminal trials.

    LawyerLife: Finding a Life and a Higher Calling in the Practice of Law

    By Carl Horn III (Chicago, IL: ABA, 2003). 167 pgs. $30. Order, (800) 285-2221.

    Reviewed by Douglas E. Baker

    LawyerLife is one of those books a lawyer might well pick up from an airport book rack, assuming such books were kept there, alongside the thrillers by Scott Turow and John Grisham. LawyerLife is a quality paperback with an attractive cover with the ABA logo prominently displayed, and glowing reviews across the back cover. The subtitle promises nothing less than a roadmap to "Finding a Life and a Higher Calling in the Practice of Law," an idea that few lawyers, from new associates to senior partners, could resist affording a second look. A quick riffle of the pages does nothing to dissuade such a potential reader - the numerous endnotes suggest detailed scholarship, though they are unobtrusively tucked away at the end of each chapter. And while it has a certain heft to it, it's not that imposing a book - having fewer than 200 pages, it's small enough to tuck into a briefcase.

    Written by Carl Horn III, a federal magistrate in North Carolina, formerly in private and government practice, LawyerLife reads smoothly, if sometimes a bit stiffly and pontifically, in the sort of language and tone one would expect from a federal judge at a seminar. All in all, it reads as well as, or maybe a bit better than, a law review article or a polished brief, and is less stilted than a formal judicial opinion. Judge Horn obviously has given the matter a lot of thought, and he - or perhaps his clerk - has spent a lot of time perusing the literature on what ails the legal profession, and in compiling suggested solutions. He has gathered together all the current phrases and buzzwords, and offers a good overview of the resources that are - or ought to be - available for troubled lawyers. He also has assembled "the world's first 12-step program for lawyers," a listing of principles that should stimulate fresh thinking on the state of the profession. His discussion of the interrelation of personal and professional ethics seems especially cogent and compelling.

    But for all that, the book is disappointing. The lingering sensation is of a work "full of sound and fury but signifying nothing,"1 as though all the right words and phrases had been in place, all the right buttons pushed, but little of substance has been accomplished. There is too much generalization and glib characterization of complex issues. One especially jarring example is Judge Horn's offhand suggestion that toiling on the lower rungs of the legal profession requires "sweatshop hours" that are "oppressively long," requiring associates to "sacrifice their lives to the firm." However true it may be that associates in larger firms must devote considerable time and energy to their work, to even suggest that such a working environment, which after all is relatively well-paid and takes place mostly behind a desk or in a library, is in any way comparable to that experienced by pieceworkers in some third-world tennis shoe factory is an insult to those seriously suffering people, who earn pennies an hour for standing on their feet all day in real sweatshops, and the comparison is an affront to anyone concerned with social justice. It simply exacerbates the public image of a profession that takes itself and its self-perceived suffering much too seriously.

    Similarly, Judge Horn suggests, after building a case as to the insensitivity, selfishness, and callous nature of those who run those large law firms and the effect of their actions upon their underlings, that those senior partners ought to help those poor associates cope by granting them a lengthy sabbatical. Such a suggestion strikes this reader as quite unreasonable, a fundamental disconnect between the premise and the proposed solution, as though those same penurious bosses are going to let go of three months or longer of billable hours in the hope that the associates will return recharged and rededicated. However that may be true in theory, Judge Horn has provided little evidence that it would work out that way in reality.

    The book also offers less in the way of scholarship than it suggests at first glance. Much of the evidence with which Judge Horn supports his argument that lawyers are suffering is, by his own admission, anecdotal or, at best, circumstantial. In fact (and to his credit) he cites one study in which those authors concluded that "the most valid, well-designed research has produced little if any support for the notion that lawyers are unhappy in their work. ... [T]here is no way to know for sure whether disgruntled lawyers were disproportionately willing to participate." Similarly, many of the numerous endnotes turn out to be citations and re-citations to secondary sources, works that are themselves compilations of data from other works, so that any reader who wants to further examine the assertions therein would have to dig very deep indeed to get to the facts. All of which makes for smooth writing and easy reading, but is of limited verifiable value. The book is a nice assembly of platitudes and presumptions that one suspects would not fly very far in this or any other judge's courtroom.

    None of this is meant to suggest that Judge Horn is less than sincere in his concern for the state of the legal profession and those who work there. The story he shares of his own childhood, in which his mother committed suicide when Judge Horn was 14, and in which his father, a successful lawyer and corporate executive, distanced himself from the family with his work and with alcohol, provides a solid and sobering example of the tragic impact professional overwork can make on a family. Judge Horn is to be commended for his recognition of the problem, his willingness to share his own story, and his evident commitment to making the profession a better place for all of us. If he practices what he preaches, one suspects that appearing in his court would be a textbook example of the way things ought to work.

    But that does not make this book work. It is at best worth reading on its own merits, as a starting point for discussion, as an aid to helping identify the problems facing the profession. But to the extent that it promises more than that, it falls short.

    1William Shakespeare, The Tragedy of Macbeth, act 5, sc. 5.

    Douglas E. Baker, Creighton 1989, is a legal editor with the State Bar of Wisconsin.

    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,

    Publications and videos available for review

    • ERISA: The Law and the Code, 2004 Edition, edited by Sharon F. Fountain & Michael G. Kushner (Washington, DC: Bureau of National Affairs, 2004). 832 pgs.
    • Marketplace Masters: How Professional Service Firms Compete to Win, by Suzanne C. Lowe (Westport, CT: Greenwood Publishing Group, 2004). 252 pgs.
    • Media Relations Handbook, by Brad Fitch (Alexandria, VA: TheCapitol.Net, 2004). 368 pgs.
    • Women-at-Law: Lessons Learned Along the Pathways to Success,by Phyllis Horn Epstein (Chicago, IL: ABA Law Practice Management Section, 2004). 376 pgs.

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