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    Wisconsin Lawyer
    July 01, 2007

    Book Reviews

    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 7, July 2007

     

    Motion Practice and Persuasion

    By L. Ronald Jorgensen (Chicago, IL: ABA Litigation Section, 2006).235 pgs. $65. Order, (800) 285-2221.

    Reviewed by Daniel J. Herber

    Written primarily for new lawyers, this how-to book explicates five facets of civil and criminal motion practice: writing the motion, presenting the facts (including drafting affidavits and conducting evidentiary hearings), making written and oral arguments, preparing the proposed order, and putting the motion before the court. It is not intended to be a form book, but five examples of annotated motions and memoranda (from state and federal courts in Maryland and Utah) are included in 70 pages of appendices that are referenced throughout the book. While some attention is given to oral motions and oral argument, most of the book concerns written motion practice.

    With a few exceptions, the chapters are well organized and the key points are presented without fluff. The most practical and detailed advice is in Chapter 6, in which the author discusses the use of affidavits and declarations in summary judgment and other motions and explains, using hypotheticals, the difference between personal knowledge and information and belief. The author also discusses the persuasiveness of other supporting documents as compared to affidavits and articulates the dangers of overstating facts in affidavits (for example, as providing an opponent with potentially impeaching statements).

    Other tidbits of wisdom that show the author's 25 years of trial experience are sprinkled throughout the book, such as his recommendation to avoid whining about opposing counsel ("a jerk … will become apparent to the judge") and to focus on the judge, not your opponent ("the lawyer has only one opponent, the prejudices and misconceptions of the judge"). He also provides useful tips on how and when to use timelines and charts in briefs, how to make the best use of supplemental briefing, and how to make clear what you want the judge to do.

    For the new lawyer, this book is worth a look.

    Daniel J. Herber, Minnesota 2004, is a law clerk to the Hon. Kermit E. Bye, U.S. Eighth Circuit Court of Appeals. He previously clerked for a federal magistrate judge in the District of Minnesota and is licensed in Wisconsin and Minnesota.

    Insincere Promises: The Law of Misrepresented Intent

    By Ian Ayres & Greg Klass (New Haven, CT: Yale Univ. Press, 2006). 306 pgs. $45. Order, www.yalebooks.com.

    Reviewed by Anne Debevoise Ostby

    Insincere Promises addresses promissory fraud, a topic that lies in the legal neverland between contract and tort. Promissory fraud, which creates liability when a promisor intends not to perform at the time of promising, is a legal theory that has been litigated more than it has been studied. In the book, the authors provide an exhaustive analysis of the doctrine - a doctrine that they believe promotes efficiency in contracting by encouraging transfers of information about the promisor's intention to perform and the probability of performance. With that information, a promisee can determine when and with whom to contract, how much to rely on the contract, and whether to invest in precautions against breach.

    Promissory fraud imposes legal liability in circumstances in which nonperformance does not rise to a breach of contract claim and offers access to punitive damages. However, the authors believe that courts need to adopt a nuanced approach to the doctrine. Promisors should be able to disclaim an intent to perform. Rather than adopting the position that every promise represents an intention to perform, courts should presume that promisors do not intend not to perform.

    The authors note well-known cases, including Wisconsin's own Red Owl v. Hoffman, in which courts used doctrines other than promissory fraud to achieve just results. In Red Owl, the court could have provided an equitable remedy without creating contractual-type liabilities by using promissory fraud rather than promissory estoppel.

    While the book wanders into philosophical realms, practicing lawyers and judges will find several chapters helpful in understanding the doctrine and application of promissory fraud. These chapters include policy arguments about the doctrine and when it should be used and a discussion of what types of evidence should be used to establish what was said and whether the statements were truthful and were made knowingly or recklessly.

    Anne Debevoise Ostby, U.W. 2003, is an administrative law judge with the Wisconsin Office of the Commissioner of Insurance.

    The Myth of Judicial Activism: Making Sense of Supreme Court Decisions

    By Kermit Roosevelt III (New Haven, CT: Yale Univ. Press, 2006). 262 pgs. $30. Order, www.yalebooks.com.

    Reviewed by Annamarie A. Edelen

    This book seeks to shed light on the question of what justifies a constitutional decision. The objective of Roosevelt, an assistant professor of law at the University of Pennsylvania Law School and a constitutional scholar, is to help citizens to understand and evaluate the work of the U.S. Supreme Court. (The objective seems particularly fitting for this author, a great-grandson of Pres. Theodore Roosevelt.) This book, therefore, is not written exclusively, or even primarily, for lawyers, although they certainly will enjoy its analysis of the Constitution and Supreme Court decisions within the context of the debate over "judicial activism." What results is Roosevelt's construction of a model describing how the Court devises doctrine to implement the meaning of the Constitution. He then applies this model, testing it against actual Supreme Court decisions, and describes how decisions may be determined to be legitimate or not.

    Roosevelt's book successfully contributes to both academic knowledge and public understanding by establishing an objective method to assess whether judges have "abused" their constitutional mandate by imposing their individual personal prejudices and beliefs. He reminds us of contemporary allegations against the Supreme Court, that judges are making law as opposed to interpreting it. Roosevelt considers the "activist" label to be only an indicator of political disagreement with the final result in cases on issues such as abortion, freedom of speech, and the death penalty.

    The book not only is timely but also is a joy to read. It contributes to a constructive public discourse and calls for informed and balanced consideration of the judiciary's contributions to society.

    Annamarie A. Edelen, Marquette 2006, is an attorney in the Law Offices of Thomas W. Kurzynski, Greenfield, practicing in civil and criminal litigation.

    Peace Mom: A Mother's Journey Through Heartache to Activism

    By Cindy Sheehan (New York, NY: Atria Books/Simon & Schuster, 2006). 224 pgs. $24. Order, simonandschuster.com.

    Reviewed by Dianne L. Post

    The language and style of the book make clear that it is intended as an easy read telling a personal story. The death of a child is a heavy blow to any family. Family members grieve and survive in a variety of ways and the ultimate breakup of the family is common. But if you did not already know about the issues of the Iraq war and occupation, you would not learn them from the book. While it does show quite well the arrogance, hypocrisy, and stupidity of Pres. George W. Bush - especially in relation to the families of murdered soldiers - this story would not convince you to oppose the war and occupation if you were not already so opposed.

    The author's journey to activism is not pretty. Sheehan is brutally honest in showing all of her own warts and problems. She acknowledges that her own ignorance and lack of action were partly to blame for Casey, her son, going to an illegal, immoral war. She points out that we all have blood on our hands, but she fails to note that many people were protesting the war before it started in a failed effort to prevent it. Sheehan learned that we are too accepting of authority, whether the authority figure is the church, the government, or the military-industrial complex.

    The flaws in the book relate to personal language style and the "attack Cindy" movement. The author spends too much time defending herself. Acknowledge it, rebut it, and let it go. She has found her voice and that is good, but sadly, it was a son's death that provided motivation. One hopes a simple desire for peace and justice should help motivate others. The message that one person can make a difference is a good and especially relevant one today.

    Dianne L. Post, U.W. 1979, has spent her legal career representing battered women and children in legal aid programs, in her own office, and with NGOs. Since 1998, she has worked internationally in Russia, Cambodia, Egypt, and Hungary and other Eastern European countries on human rights issues related primarily to gender violence and Roma rights.

    The Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines

    By Sharon D. Nelson, Bruce A. Olson & John W. Simek (Chicago, IL: ABA Law Practice Management Section, 2006). 768 pgs. CD-ROM. $129.95. Order, (800) 285-2221.

    Reviewed by Kevin L. Ferguson

    The amendments to the Federal Rules of Civil Procedure require federal litigators to address electronic discovery and determine early on whether and to what extent electronically stored information will be an issue in their cases. I believe it is just a matter of time before the states amend their rules and require lawyers in state court to do the same. The Electronic Evidence and Discovery Handbook is the product of three authors with extensive credentials in electronic evidence, computer forensics, and legal information technology. One of the authors, Bruce A. Olson, is a Wisconsin lawyer and a nationally recognized legal technologist. This book is a primer on electronic discovery and evidence, and the authors hope that "this book will help lawyers get a handle on the e-discovery juggernaut as they stick a timid toe into the churning waters."

    In its five chapters, the book guides its readers through the electronic discovery labyrinth, from gathering the evidence to using third-party experts, preserving evidence and preventing spoliation, and drafting electronic discovery documents. The book contains an exhaustive supply of electronic discovery forms including interrogatories, requests for production, depositions, motions to compel, motions for protective orders, motions for sanctions, and sample orders. There also is an electronic evidence case digest and a table of electronic evidence cases. The accompanying CD contains all of the forms in MicrosoftWord® format, and the case digest and table of cases are Adobe® Portable Document Format (PDF) files; however, the files on the CD may only be used on a single computer. A license is required to use the set of files on a local network.

    Even though discovery is unique in each case, this book is an excellent guide for the lawyer who must find his or her way through the maze of electronic discovery. Understanding the terms, rules, and law that apply to the electronic discovery process is the first obstacle a lawyer encounters, and this book will prove to be of great assistance in overcoming that obstacle.

    Kevin L. Ferguson, Marquette 1996, is a senior staff attorney for American Family Mutual Insurance Co., Madison.

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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:

    • Appellate Practice and Procedure in Wisconsin, 4th ed., by Michael S. Heffernan (Madison, WI: State Bar CLE Books, 2006). 600+ pgs + CD.
    • Beyond the Big Firm: Profiles of Lawyers Who Want Something More, by Alan B. Morrison & Diane T. Chin (Riverwoods, IL: Aspen Publishers, 2007). 300 pgs.
    • Executive Compensation and Related_Party Disclosure: SEC Rules and Explanation, by James Hamilton (Riverwoods, IL: CCH, 2006).193 pgs.
    • Feingold: A New Democratic Party, by Sanford D. Horwitt (New York, NY: Simon & Schuster, 2007). 276 pgs.
    • Judging the Lawyers: A Jury-Box View of the Case Against American Lawyers, by Ted Preston (Lincoln, NE: iUniverse Inc., 2007). 394 pgs.
    • Life is Short, Art is Long: Maximizing Estate Planning Strategies for Collectors of Art, Antiques, and Collectibles, by Michael Mendelsohn & Paige Stover Hague (New York, NY: Wealth Management Press, 2006). 424 pgs.
    • LLCs and LLPs: A Wisconsin Handbook (Madison, WI: State Bar CLE Books, 2007). 515+ pgs. + forms on CD.
    • Making Aid Work, by Abhijit Vinayak Banerjee (Cambridge, MA: The MIT Press, 2007). 170 pgs.
    • Motorcycle Accident Reconstruction and Litigation, 3d ed., by Kenneth S. Obenski & Paul F. Hill (Tucson, AZ: Lawyers & Judges Publishing Co., 2007). 621 pgs.
    • Off the Record: The Press, the Government, and the War Over Anonymous Sources, by Norman Pearlstine (New York: Farrar, Straus & Giroux, 2007). 282 pgs.
    • Privacy on the Line: The Politics of Wiretapping and Encryption, by Whitfield Diffie & Susan Landau (Cambridge, MA: The MIT Press, 2007). 400 pgs.
    • Qualified Plans: Forms, Notices, and Supplementary Materials, by Pamela D. Perdue (Philadelphia, PA: ALI-ABA, 2007). 308 pgs. CD-ROM.
    • Stump Your Lawyer! A Quiz to Challenge the Legal Mind, by Howard Zaharoff (San Francisco, CA: Chronicle Books, 2007). 128 pgs.

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