Wisconsin Lawyer
Vol. 82, No. 6, June 2009
The Family Lawyer’s Guide to Stock Options
By Lester Barenbaum, Walter Schubert & Robert Feder (Chicago, IL: ABA Family Law Section, 2007). 154 pgs. w/CD. $69.95. Order, (800) 285-2221.
Reviewed by Kevin J. Cords
This book is a useful overview of the treatment of stock options in family-related litigation nationwide. The authors – professors of finance and a family law attorney – focus on nontransferable employee stock options and discuss a variety of issues about which family law attorneys should be aware. The book also acts as a secondary source for case law and treatise research.
Because the book is clearly designed for family law attorneys, most laypersons and other attorneys will not find it particularly useful, although some divorce clients may find it interesting. The book also would be useful for judges and court employees who seek general insight into the national treatment of options.
The book presents a thorough framework of things to consider in different scenarios and provides pluses and minuses of different methods such that in any given scenario, one can select the appropriate position for which to argue or apply. In a few instances, the authors stress particular points of view, omit the potential for negative actions by certain actors, or advocate the use of a particular procedure. Fortunately, however, the majority of the work is balanced and informative.
The book opens with a glossary, which may prove invaluable because the authors assume readers have a basic understanding of the terms and mechanisms surrounding options. Also included are a detailed table of contents and a comprehensive introduction.
The book is divided into five chapters. The first addresses the threshold question of whether stock options are property subject to distribution in divorce. As they do throughout, the authors cover many jurisdictions, providing a range of exceptions and nuances, and case cites. While the text reads well, at times key information, such as the jurisdiction of cases, is buried in endnotes or several paragraphs into the discussion.
Other chapter topics include valuation of stock options, taxation and tax effects of stock-related employee benefits, equitable and delayed distribution, and options as income for child support and alimony or maintenance. The equitable distribution chapter and appendix contain sample settlement language. Additional appendices explain standard deviation, volatility, and discovery categories.
The book concludes with a detailed index, including cases and key terms. Rounding out this helpful introductory reference work, the appendices are provided in PDF and Word versions on a CD-ROM.
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Cases and Materials on Civil Terrorism Law
David J. Strachman & James P. Steck (Tucson, AZ: Lawyers & Judges Publishing Co., 2008). 502 pgs. $79. Order, (800) 209-7109.
Reviewed by Kevin L. Ferguson
This book is a compilation of cases and materials dealing exclusively with civil terrorism litigation. David J. Strachman, a partner at McIntyre, Tate & Lynch in Providence, R.I., concentrates in representing victims of international terrorism. He is an adjunct professor at Southern New England Law School and has taught civil terrorism law at Roger Williams University. James P. Steck is a Connecticut-licensed attorney currently serving as a law clerk for the Connecticut Superior Court.
The book is the product of courses taught at Southern New England Law School and Roger Williams University. When the authors were preparing to teach courses on civil terrorism law, no textbooks were available. The authors “hope that this book will fill that gap and provide structure for law school and undergraduate courses on civil terrorism law.”
The initial chapters provide a general introduction to civil terrorism law and historical attempts to bring terrorists to justice. Subsequent chapters cover statutory remedies for victims of terrorism, subject matter jurisdiction, defenses, personal jurisdiction, causes of action, and causation. The remaining chapters focus on plaintiffs, damages, financial support cases, the role of the U.S. government, proving the case, and collection issues.
The book’s appendix contains the relevant terrorism statutes and other resources such as citations to case law, law reviews, and books and also offers interesting historical information about the development of civil terrorism law in the federal courts.
The chapters are concise and well ordered. The index, although relatively short, is well organized. Overall, the book comprehensively presents the history of civil terrorism law, from the Alien Tort Claims Act of 1789 to recent developments. This book is particularly well suited for readers who are not already familiar with civil terrorism law. Its target audience includes attorneys, professors, students, and researchers who need a starting point to learn about civil terrorism law.
Overall, the book does fulfill the authors’ goal of contributing “to the scholarship of this intriguing subject” and making “it easier for law schools and universities to offer courses in this field and encourage the development of terrorism law as a distinct area of the law.”
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Solving Employee Theft: New Insights, New Tactics
By James W. Bassett (Spring Hill, FL: James W. Bassett Co., 2008). 314 pgs. Order, www.ljbassett2@aol.com.
Reviewed by Kathleen A. Pakes
The author, a certified polygraph examiner, runs a business that advertises employee theft solutions. Solving Employee Theft is written primarily for small-business owners, in easy-to-read language, with the premise that employers can take steps to curb financial and property crimes in the workplace. The author’s Web site contains materials that are referenced in the book and are available for a fee.
Much of the book focuses on minimizing employee theft risk, screening job applicants, and advising employers how to investigate and solve workplace thefts. The book also provides a rudimentary description of the Employee Polygraph Protection Act. For the legal practitioner, the book is not technical. The text does not discuss legal theories or procedures but does provide common-sense advice for small-business owners seeking to avoid being victimized by employees.
Professionals such as law enforcement officers or prosecutors who deal with criminal intent issues may find the discussion of the psychology behind employee theft worth reading. Especially entertaining are the numerous examples of employees who rationalize their actions to such an extent they don’t feel they’ve committed any crimes.
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Legal Guide to American Institute of Architects Documents, 5th Ed.
By Werner Sabo (Riverwoods, IL: Wolters Kluwer Law & Business: Aspen Publishers, 2008). 901 pgs. $235. Order, www.aspenpublishers.com.
Reviewed by Martin J. Gregorcich
The law practice scenario: A client is anxious to build on a newly purchased parcel. An architect wants her signature on the new and improved 2007-version “standard boilerplate” contract. The general contractor wants the same, except his contract has a long rider. Your knowledge of the latest construction methods, integrated project delivery, and building information modeling is sketchy. When the inevitable disputes over cost and liability begin, the architect and the contractor will blame each other, and the client will suffer. There’s not enough time in the billable budget for your normal process of scrutinizing and revising all those pages. What to do?
Your plan of action: 1) Grab this book from your library. Set it beside the proposed contract. 2) Select a chapter, based on which contract will be reviewed first – the architect’s or the contractor’s. 3) Speed-read the first numbered contract section. 4) Go to the book’s commentary for that provision. You will find a review of issues that have arisen concerning the American Institute of Architects’ (AIA) words, which evolved during 115 years of contract usage. A vast body of court precedent is referenced in footnotes. If you are analyzing substantive terminology, your focus will be on how the contract allocates the risks and rewards inherent in the construction process. 5) Move to the next chapter for ideas on customizing the AIA’s words into something more favorable to your client. 6) Make notes for your proposed revisions. 7) Repeat the process for each numbered contract section.
This book covers the November 2007 major revisions to Standard Forms of Agreement A101: Owner - Contractor, as well as A201: General Conditions, and B101: Owner-Architect. There are separate chapters on B103 for a complex fast-track project using consultants for cost estimating and scheduling, and B104 for a limited scope project. The comments are generally applicable to other AIA standard contracts since much of the language is similar throughout the family of documents. The book’s glossary and table of cases will become a well-used resource for drafting and research.
Treat this as your textbook for advanced construction law. Learn why oral amendments can be enforced despite express language to the contrary, why shop drawings are neither “drawings” nor “contract documents,” why the right to stop work confers responsibility for job-site safety, and why time limits on claims are now more favorable to owners although contractors may want to incorporate the old AIA language. Learn also about the architect’s new role as initial decision-maker, and about litigation replacing arbitration as the default dispute resolution procedure.
If your practice involves advising contractors, architects, or building owners, this book is the most efficient way to access the author’s many years of experience as a licensed and practicing architect, topped off with many more years as a construction lawyer, mediator, arbitrator, litigator, and teacher.
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A Practical Guide to Medicare Appeals
By Daniel A. Cody & Kathleen Scully-Hayes (Chicago, IL: ABA Publishing, 2007). 412 pgs. $79.95. Order, www.ababooks.org.
Reviewed by Susan Mae McCabe
As the American population ages and medical costs soar, issues surrounding access to public benefits such as those provided by the Medicare program are increasing. This guide is a welcome resource intended to help parties get access to Medicare benefits and to navigate the program’s appeal processes.
Medicare is the federal program that provides eligible elderly and disabled individuals with health insurance coverage. The program directly reimburses medical providers and suppliers for covered services, supplies, and equipment that they provide to program beneficiaries. For readers not familiar with the various aspects of the Medicare program, the guide provides a brief overview of the history of the program’s statutory basis, Title XVIII of the Social Security Act (42 U.S.C. § 1395 et seq.) and subsequent legislation. Additionally, the authors review Medicare Parts A, B, C, and D, and explain how the program is administered.
The guide focuses on the appeal processes available to parties who may be dissatisfied with the coverage or payment provided by the Medicare program – including people seeking Medicare benefits, current beneficiaries, medical providers, and suppliers. In well-organized and easy-to-navigate chapters, the authors delineate numerous avenues of appeal available to challenge Medicare determinations. For each type of appeal, they identify what determinations can be appealed and who is eligible to pursue that specific process. Included are the applicable statutory and regulatory authority for the appeal and a clear outline of the steps of the process and the expected amount of time that it will require. Especially useful are the practical tips intended to assist parties successfully complete their appeals. The guide even includes a helpful chart that compares the former and recently revised fee-for-service Part A and Part B appeals processes.
For the reader who may not be familiar with Title 42 of the United States Code, the guide is replete with statutory references – including a lengthy appendix that contains select sections of regulation text from Title 42. Other appendices list the Web sites for all the administrative entities that parties may encounter in the appeal process and provide contact information for many of the nonprofit agencies that assist Medicare beneficiaries.
This concise and up-to-date guide will serve as an indispensible resource for parties, advocates, and legal professionals who are involved in Medicare appeals and should go a long way to demystifying what often can seem to be a confusing and intimidating process.
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The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, 2nd Ed.
By B.J. Jones, Mark Tilden & Kelly Gaines-Stoner (Chicago, IL: ABA Family Law Section, 2008). 365 pgs. & CD. $79.95. Order, (800) 285-2221.
Reviewed by Brenda L. Yaskal
When you hear the term “Indian Child Welfare Act,” do you get a feeling of panic in your stomach? If you don’t, you either don’t practice in children’s law or you are intimately familiar and comfortable with this federal law. For the rest of us, there is this handbook. This easy-to-use book is full of information that a children’s law practitioner needs to successfully move a case involving a Native American child through the court system.
The book starts out with some history of the Indian Child Welfare Act (ICWA) and the reason for its creation: preserving the culture and traditions of Native Americans. Unfortunately, as the book points out, Congress decided to attack this substantive issue with a procedural statute, and children’s law practitioners are left with trying to figure out procedure, jurisdiction, and placement issues instead of looking at the underlying social problem.
After the brief introduction, the authors go right into the heart of the ICWA by looking at what types of proceedings it covers (foster care placements, terminations of parental rights, and adoptions) and what types of proceedings it doesn’t cover (divorces and voluntary placements). However, as with every law, there are judicially created exceptions, and the authors explore these in detail, complete with footnotes and a large table of cases.
Once you’ve figured out if you are in the type of proceeding that requires adherence to the ICWA, you need to determine if you can remain in state court or if jurisdiction should transfer to tribal court. So, turn to the next chapter, which also covers “Public Law 280” states, of which Wisconsin is one, and how to handle the applicability of the ICWA when the state has already been vested with jurisdiction over Indian tribes. This chapter also explores grounds for arguing for or against transfer.
The next two chapters break down the procedure – from notice to interaction with the Adoption and Safe Families Act (ASFA) to expert testimony to placement (the preference is for a member of the child’s extended family, followed by a Native American foster home followed by a Native American institution). These chapters, like the rest of the book, are easy to read and well-organized.
The book’s most useful part are the many appendices, which contain the full text of the ICWA, guidelines for state courts, a full list of tribes recognized by the U.S. Bureau of Indian Affairs (BIA), a listing of tribal courts and BIA-recognized social service agencies, and sample forms and checklists. The accompanying CD-ROM has all appendices in both Word and PDF formats.
Whether you are new to the area of children’s law or have been practicing in it for your whole career, the ICWA can be a challenge. This book will guide you through the process designed to protect the integrity and future of the Native American culture.
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Virtual Law: Navigating the Legal Landscape of Virtual Worlds
By Benjamin Tyson Duranske (Chicago, IL: ABA Science & Technology Law Section, 2008). 430 pgs. $49.95. Order, www.ababooks.com.
Reviewed by Suzanne Edwards
No matter the type of law you practice, you are likely, in the near future, to encounter a case that involves virtual worlds. Consequently, Virtual Law should be on every lawyer’s reading list. Author Duranske is an intellectual property attorney who cochairs the new Committee on Virtual Worlds and Multiuser Online Games of the ABA’s Section of Science and Technology and is editor of www.virtuallyblind.com.
Duranske is an excellent writer who eases the reader into the phenomenon, assuming the reader is unfamiliar with virtual worlds. Long before the book describes the emerging legal issues of virtual worlds, Duranske explains various virtual worlds such as Second Life, World of Warcraft, and Ultima Online, their goals or lack thereof, and how users participate among them.
The law of virtual worlds is so new that it is largely undeveloped. Virtual Law considers whether property, contracts, intellectual property, torts, criminal, privacy, and taxation law, among others, apply to virtual worlds. Duranske ends each chapter with open questions of how, if at all, “real life” laws apply to virtual worlds.
This is an excellent introduction for new users of virtual worlds. The final chapter in Virtual Law explains how to create a presence as a legal professional in virtual worlds, particularly in the virtual world of Second Life. It also provides a handy resource containing the terms of service agreements for some of the most active virtual worlds, excellent citations to additional sources, and the initial pleadings from three of the leading cases brought by virtual world users.
I highly recommend reading this book whether you are interested in practicing in the emerging field of virtual law or merely use virtual worlds for fun.
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Guide for Assessing Hospital Liability: A Former CEO’s Perspective
By Pat Cornelison (Tucson, AZ: Lawyers & Judges Publishing Co., 2008). 165 pgs. $49. Order, (800) 209-7109.
Reviewed by Bruce P. Bower
This book deals with several topics related to hospital liability. Topics include the path from absolute immunity to liability, hospital cultures, hospital regulatory law, hospital governance, hospital management, the medical staff and medical staff bylaws, physician – hospital relationships, the importance of hospital activities conforming to written policies, and what can occur when hospitals do not practice what they preach. Also covered are hospital communications, responses to litigation, and resources that hospital administrators should be aware of. Several chapters follow the format of the author stating a principle, briefing one or more cases that illustrate the principle, and stating a summary.
The role of “certificate of need” laws is discussed. Their purpose is stated as “restraint of healthcare costs, prevention of unnecessary duplication of health resources, and equal access to quality health care at a reasonable cost.” The role of the Joint Commission on Accreditation of Healthcare Organizations and the American Osteopathic Association also is treated, as is oversight by the federal Centers for Medicare and Medicaid Services.
The book is national in scope, and so most of the cases cited are from states other than Wisconsin. The chapter “From Absolute Immunity to Multi-Dimensional Liability: How Did We Get Here?” describes the path from hospitals’ charitable immunity (as articulated in Massachusetts in 1876) to liability under respondeat superior (declared in New York in 1957) to a decision finding corporate negligence (Illinois, 1965), on to more recent cases dealing with hospital liability for independent contractor negligence and for failing to notify a patient that a negligent doctor is an independent contractor. Although there is some treatment of the Emergency Treatment and Active Labor Act, neither it nor the privacy rule promulgated pursuant to the Health Insurance Portability and Accountability Act merits a chapter of its own in the book.
A Wisconsin case, Johnson v. Kokemoor, 190 Wis. 2d 615, 545 N.W.2d 495 (1996), is summarized in chapter 13 as standing for the proposition that “[p]atients cannot make informed decisions regarding treatment unless medical practitioners disclose all viable alternatives and risks of treatment proposed, including the medical practitioner’s experience in performing the recommended treatment.” Readers using the book for counseling or litigation will want to research how subsequent courts have used this Wisconsin decision and other cited cases.
The chapter titled “Assessing Liability, Risk, Vulnerability and Responsibility in Litigation and Defense: Guilty as Charged” contains bullet points that can serve as checklists. The “Resources” chapter includes numerous URLs for further research.
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Legal Writing
By Richard K. Neumann Jr. & Sheila Simon (Riverwoods, IL: Aspen Publishers, 2008). 314 pgs. $57. Order, (800) 638-8437.
Reviewed by Ana L. Babcock
I was attracted by the title of this book because I was looking to sharpen my legal writing skills. Since it was a review for the Wisconsin Lawyer, I assumed the book would be geared toward attorneys.
After reading the first few chapters, I “learned” how to read a case, outline a statute, and synthesize a rule. Being the optimist that I am, I figured that the authors were simply laying some foundation to remind attorneys of some of the basic skills that we perform every day almost without thought. Certainly, the good stuff would be just a few chapters away. Well, the “good stuff” I was hoping for never came, as the book’s final chapter provided tips on how to prepare for an oral argument. It is clear that this book is not geared toward practitioners, and I would not recommend this text for attorneys, unless you have a burning desire to resurrect the memories of your first-year legal writing course.
With that in mind, I gave the book a second pass to review it for its target audience: legal writing professors. For use by these readers, I think the book is excellent. I compared this text to my own 1L legal writing book and found this one to be far superior. The chapters are logically organized, and the book conveys the fundamentals of legal analysis and writing in a graspable manner. This text practices what it preaches by making effective use of headings and subsections, which help the reader to stay engaged in the material without being overwhelmed.
This text spent significant time explaining the writing process and frequently emphasized the importance of rewriting and editing (not just proofreading). It includes checklists to test the effectiveness of sentences, paragraphs, and the overall organization of drafts that would make excellent in-class editing activities. A chapter devoted to the CREAC paradigm is easy to understand and succinctly explains the CREAC ingredients. It also provides several examples using facts with which law students can identify and that will keep them entertained.
Along with the text itself, the purchaser also receives access to premium online content. The Web site contains a wide variety of information, including helpful checklists on topics corresponding to chapters in the book such as questions presented, point headings, quotations, and CREAC. This site also contains classroom exercises, short articles on specific legal writing topics, and a video called “The Lasagna” that analogizes legal writing to a pan of lasagna.
I would recommend this text to professors teaching a basic legal writing course. It is written in an approachable and modern tone, and it conveys the essential legal writing skills in a logical, understandable, and manageable format. This text, however, would not be suitable for any legal writing course beyond the elementary first-year course, because it does not discuss any advanced topics. An attorney looking to brush up on skills should proceed at his or her own risk.
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The Science of Settlement: Ideas for Negotiators
By Barry Goldman (Philadelphia, PA: ALI-ABA, 2008). 208 pgs. $49. Order, (800) 253-6397
Reviewed by Stephanie L. Melnick
People make decisions not based on reason and logic but based on rules of thumb or “heuristics,” argues Barry Goldman in The Science of Settlement. Heuristics, which evolved via natural selection over thousands of years, enable us to make quick decisions using little mental energy.
Goldman divides negotiation-related heuristics into four categories: preparation, bargaining, agreements, and experiments (to predict case value and evaluate a settlement). While it is sometimes difficult to understand a heuristic referenced in the book as related to its assigned category, Goldman explains each heuristic in detail. For example, the “status quo bias” (preparation chapter) may prevent a settlement because a party is committed to the current course, thus insisting on a trial instead of pursuing a settlement. The “framing effect” (bargaining chapter) suggests that how we think about gains or losses may override whether there are actual gains or losses. The “peak-end rule” (agreements chapter) suggests that humans focus on an experience by taking snapshots – one at its peak and another at its end.
Goldman’s style is informal, and he uses everyday, current examples to illustrate each heuristic, thereby making otherwise complex concepts understandable. For example, he illustrates the “sunk cost fallacy,” the belief that future costs can compensate for past costs (the opposite of cutting one’s losses), by describing the U.S. government’s decisions to send additional soldiers to war in Vietnam and Iraq as a means of honoring deceased soldiers.
Goldman also discusses the well-respected literature in the negotiation field, explaining how these texts illustrate the heuristics and their value to negotiators.
The Science of Settlement offers ideas for negotiators: what to consider when preparing for negotiation; effective bargaining techniques; maximizing positive agreements for both sides; and methods that attorneys and clients can employ cooperatively to evaluate a case’s value pre-negotiation. For this reason alone, it is worth reading.
However, reading the book will not automatically mean that one can apply the defined heuristics. Understanding that heuristics are at play is one thing. Using them is a separate challenge. It requires internalizing the logical flaws in human thinking, recognizing these critical thinking flaws in your negotiation opponent, avoiding them yourself, and counseling clients to do the same. This is a tall order to be sure.
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Nursing Malpractice, 3d Edition
Edited by Patricia W. Iyer & Barbara J. Levin (Tucson, AZ: Lawyers & Judges Publishing, 2007). 1,504 pgs. $199. Order, www.lawyersandjudges.com.
Reviewed by John A. Kornak
If you need a comprehensive book on nursing malpractice, this is the one for you. At almost 1,500 pages (including the index), this book is chock full of good, solid information on issues ranging from patient safety to nursing practice to common areas of nursing liability. Although written primarily for lawyers, the book also is helpful to nurses for research on liability issues.
The book’s strengths are its organization and footnotes. The chapter headings are very descriptive, making the book easy to navigate, and the various subjects are generally very well-researched and efficiently footnoted. Each chapter also offers suggestions for supplemental reading.
As a plaintiff’s lawyer, I found two chapters especially informative because they offered glimpses into the inner workings of the other side. These chapters, “Defense Attorney’s Perspective: Working up a case” and “Working with Claims Adjusters,” concern areas that are foreign to me. In turn, defense attorneys might appreciate the chapter on the plaintiff’s attorney’s perspective, which also contains a table of Web sites for legal research and professional associations. The book includes helpful appendices on understanding medical terminology, abbreviations, acronyms, and symbols.
This book provides a wealth of information written in an accessible manner. It will either give you the answer you were searching for or provide a good background for more in-depth research. There might be better resources on the individual topics this book discusses, but I’ve yet to run across a better compilation on this subject. For that reason, I highly recommend it.
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International Outsourcing Law and Practice
Edited by Herald Jongen (Riverwoods, IL: Wolters Kluwer Law & Business, 2008). Looseleaf. $310. Order, www.kluwerlaw.com.
Reviewed by Seamus G. Flaherty
Considered generally, outsourcing can be a controversial topic. Opponents often object to the use of labor in countries lacking sufficient worker protections, which hurts American workers just to benefit bottom lines. Proponents of outsourcing point out that, in addition to its potential to increase a company’s profits, outsourcing can result in an influx of jobs and resources to poorer areas that serve as a boon to developing economies. Some people may develop negative views of outsourcing after a language barrier makes communication difficult during a tech-support call. Yet others might regard the practice favorably because they operate a virtual office or even a virtual law office that outsources administrative and drafting work, which greatly increases their chance of success by decreasing their overhead.
Herald Jongen’s International Outsourcing Law and Practice adopts a positive view of outsourcing and describes the practice as an inevitable commercial trend as old as Henry Ford’s decision to stop making all Model-T parts in-house. The book offers a thorough treatment of the general issues that should be considered and raised by attorneys with clients who may be outsourcing some portion of their business activities. Detailed chapters are devoted to topics such as trends in outsourcing, the interests that should be weighed during outsourcing negotiations, and pricing models for such agreements. The benefits of outsourcing arrangements receive extensive treatment. Going well beyond balance sheet concerns, the benefits discussed include the ability to focus on core business practices, the use of employees with specialized skills, diminution of the risk associated with centralization, and assuming a role in the dispersion of economic opportunity.
One significant point discussed early on is the difference between outsourcing (contracting out to a third party the continuous performance of an activity that previously was performed in-house) and the more limited offshoring (the relocation of activities and jobs to foreign countries). This distinction helps free the discussion from some of the controversy referred to above by highlighting the fact that sending business activities abroad is only one form of outsourcing. Moreover, it is an important reason why International Outsourcing Law and Practice will prove helpful not only to an attorney with a large corporate client interested in offshoring its IT department to a large company in Mumbai, but also to an attorney with a smaller business client who is interested in outsourcing some of its administrative or tech activities to a start-up company founded by students in Madison.
One significant caveat should be given. With a few exceptions, the book’s many contributors are European practitioners, and when they take up substantive issues such as employment, tax, and anti-trust law, their focus is on European law and practice. This work is therefore not a useful resource for readers looking for a discussion of the American law applicable to the range of issues that surround a decision to outsource. However, it is a useful tool for attorneys looking to become informed generally on the benefits, structure, and pitfalls of outsourcing arrangements.
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Sacred Violence: Torture, Terror, and Sovereignty
By Paul W. Kahn (Ann Arbor, MI: Univ. of Michigan Press, 2008). 233 pgs. $22.95. Order, www.press.umich.edu.
Reviewed by Erik R. Guenther
The ticking-time-bomb scenario is a favorite of philosophy professors. Would you torture a suspect to stop a ticking time bomb that might kill 10 people? 100 people? 1,000 people? What if there was a 70 percent chance that the suspect had accurate information? A 50 percent chance? 20 percent? Playing with the number of potential victims and the accuracy percentages is a well-worn tool to challenge impressions about ethical behavior in situations of extreme consequence.
Yale Law School professor Paul Kahn suggests that legal mechanisms may not be the vehicle to answer these questions. He posits that torture is not a legal or an illegal act under such a circumstance, but rather an action that is outside the law. His thesis takes us back to the conflict between Kantian deontology and utilitarianism.
The most interesting section of the book is about the changing viewpoints in international law and human rights. Kahn suggests that the attempt to frame all government action into legal norms has been declaratory at best and will always fail. In other words, conflict and violence will always exist in the world. Efforts to apportion legality and illegality in international conflicts after the fact are an exercise in limited utility.
The opening chapter’s discussion of torture and sovereignty meanders and wobbles without hitting the mark of the argument. More aggressive editing of this section is needed for any subsequent printings. The discussion of torture and international law, the overview of the current torture debate, and the discussion of political violence in subsequent chapters are all better formulated and easier to follow.
Kahn moves the debate from the definition of torture, the potential usefulness of torture, the morality of torture, and the procedure of torture to a study of the intersection of these questions and the sources of political meaning. He deems torture an inevitable response to terrorism (“A world of terror is a world of torture”) but does not offer a defense to the practice or a suggestion that torturers ought to escape prosecution. He does challenge the comfortable view in which abhorrence to torture under sharia and acceptance of lengthy incarceration in a penitentiary coexist. While not suggesting a torturer escape prosecution, Kahn considers the sacrifice of the torturer as an entity that may be scapegoated so that the community can preserve its sense of morality. He also examines society’s willingness to accept deaths on the battlefield, even of noncombatants, but unwillingness to accept physical or mental harm to a captive even if such harm might prevent destruction on a massive scale.
Kahn analyzes the place torture holds in our political and moral landscape. Torture no longer holds a place in legal evidence gathering. Thus, the uncomfortable position offered by Kahn is that some inquiries may always exist outside the law. While challenging and insightful, his work is awkward at times and stumbles under the weight of the topic addressed.
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The Plaintiff and Defense Attorney’s Guide to Understanding Economic Damages
By Michael L. Brookshire, Frank Slesnick & John W. Ward (Tucson, AZ: Lawyers & Judges Publishing, 2008). 193 pgs. w/CD-ROM. $39. Order, www.lawyersandjudges.com.
Reviewed by Justin J. Bates
One reason I attended law school (although not the main reason, of course) was my disdain for all things mathematical. Fortunately, the authors of this book have created an excellent roadmap that can be used by any trial attorney as a guide through the murky waters of economic damages. The Plaintiff and Defense Attorney’s Guide to Understanding Economic Damages is filled with useful checklists and suggestions on everything from how to select a damages expert to how to properly use that expert’s testimony and reports at depositions and trial.
This book certainly lives up to its title. It serves not only as an aid for plaintiffs’ attorneys to assist in selecting and cultivating a damages expert but also helps the defense attorney highlight ways to discredit or otherwise call into doubt the selected expert’s methodology. Each chapter is well focused and includes a helpful synopsis, which new attorneys will find useful as a compilation of information and experienced litigators will find useful as a reference guide.
This book includes a CD-ROM with chapter supplements. The supplemental materials range in usefulness from chapter to chapter but overall are a practical complement. For example, chapter 7 deals with the use of life-care planners (individuals who maintain licensure within a health-care discipline and also possess the appropriate educational requirements as defined by their professional standards) – the synergistic role they play in a serious personal injury case and how they interact with economists in a litigation setting. The materials on the CD-ROM for chapter 7 provide a case study that details an automobile accident that results in severe personal injuries to the subject. The materials then provide samples of a life-care plan and sample testimony from a life-care planner within the context of the case study. Properly applied, these materials will prove to be invaluable tools when preparing for the use of such an expert.
Most litigation attorneys understand the usefulness and necessity of accountants or economists as experts. However, the authors here focus on such experts’ specific methodology; that is, the use of discount rates, valuation of employment fringe benefits, and their role in evaluating structured settlements. This analysis is of great benefit to lawyers who find the methods of economic experts to be difficult to grasp, or perhaps more importantly, difficult to explain to a jury. Certainly, this book should be consulted not only before selecting an expert but also before beginning trial preparation. However one approaches the provided materials, this book is a must read for all trial lawyers.
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Winning Alternatives to the Billable Hour: Strategies that Work, 3d Edition
By Mark A. Robertson & James A. Calloway (Chicago, IL: ABA, 2008). 179 pgs. w/CD-ROM. $99.95. Order, (800) 285-2221.
Reviewed by Richard E. Garrow
This how-to book is short and easy to read. The message is how to set a lawyer’s fee. The authors divide lawyering into two parts: a profession and a business. The book covers only the business side of the equation.
The authors begin the discussion with Rule 1.5 of the ABA Model Rules of Professional Conduct, which says that a lawyer shall not charge or collect an unreasonable fee. The familiar eight factors to determine a reasonable fee follow, including the old standby – the amount involved and the results obtained. The appendix lists 12 billing methods, including the fixed or flat fee, the contingent fee, the percentage fee, and the lodestar method fee. (The authors cite 487 F.2d 161 (3rd Cir. 1973) as the origin of the lodestar method.)
The appendix contains several attorney-client fee agreements. One example is a fixed-fee retainer agreement for handing insurance defense cases based on anticipated volume of cases. The term is two years, 10 day trials, and anticipating 180 cases in four contiguous counties.
Readers are reminded that fees also are set by courts, legislatures, competition among lawyers themselves, and insurance companies and in-house counsel that assign work to outside counsel.
The authors classify clients as sophisticated and not-so-sophisticated. The operative concept here is to educate the client. The client must understand the services he or she is purchasing and their value. The authors remind readers to know the local rules. For example, SCR 20:1.5 has the $1,000 fee and costs formula. The authors promote the use of written and signed attorney-client agreements, a practice this reviewer strongly endorses.
This book has a narrow audience. The authors note that the ABA Law Practice Management Section published four books on alternative billing methods between 1989 and 2002. There is nothing new here. Wisconsin lawyers and firms already have experience setting their fees. This book is not a must read.
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Preparing Legal Documents Nonlawyers Can Read and Understand
By Wayne Schiess (Chicago, IL: ABA Publishing, 2008). 144 pgs. $69.95. Order, (800) 285-2221.
Reviewed by Sarah Troupis
It is easy for lawyers to forget that the documents we write need to be understood quickly and easily by our nonlawyer clients. Often, a client will need to understand a legal document when he or she is in a stressful situation and does not have immediate access to a lawyer, who (presumably) would be able to explain exactly what the document means. Your client’s ability to understand the legal document that you have drafted may have enormous consequences not only for the client but also for you, the drafter. Preparing Legal Documents Nonlawyers Can Read and Understand aims to ensure that lawyers draft legal documents for clients that will be legally effective yet also easy to understand.
A short book split into short chapters, Preparing Legal Documents Nonlawyers Can Read and Understand is intended for use by transactional attorneys, although many of its suggestions are helpful to litigators. For example, the chapter on how to make a document easy-to-read from a design standpoint would be equally helpful to transactional attorneys and litigators. However, most of the book focuses on simplifying a document’s content and language for nonlawyers and thus emphasizes techniques such as shortening sentences and eliminating legalese (which, by the way, busy transactional attorneys and litigators also appreciate when reviewing briefs and other legal documents).
The author does not suggest that you completely overhaul the way you write. Instead, apply the suggestions in the book to revise a document that you have already written before sending it to the client. The author provides many before-and-after examples to show how applying his suggestions can improve how a document looks and simplify the way it reads, without altering its legal effect.
Although it is unlikely that any lawyer would agree with all the author’s suggestions, every lawyer should be able to use at least some of them to help other people – whether nonlawyers or lawyers – understand legal documents.
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Preventing and Managing Workplace Violence: Legal and Strategic Guidelines
Edited by Mark A. Lies II (Chicago, IL: ABA State & Local Government Law Section, 2008). 275 pgs. $55.95. Order, (800) 285-2221.
Reviewed by Elizabeth M. Koch
According to OSHA, violence in the workplace is a serious concern; approximately two million American workers are victimized in the workplace each year. From verbal threats and intimidation to actual physical battery and homicide, violence in the workplace takes many forms. Almost anyone, whether an employer, employee, client, or consumer, could become a victim on any given day. In fact, it is hard to watch the local news, read the newspaper, or surf the Internet without coming across a recent example of workplace violence. There is a lot of reporting on the prevalence of violence but not much on prevention. Preventing and Managing Workplace Violence, a collection of short articles, fills that void.
Workplace violence is such a vague concept that it can be difficult for people to know where to begin to look for guidance. One article, Basic Principles and Concepts in Threat Assessment Evaluations, does an excellent job of breaking down the topic into smaller categories by classifying events and defining threats. It also discusses the legal implications for employers and employees relating to the Americans with Disabilities Act, the Family and Medical Leave Act, and worker’s compensation statutes. This article (and most of the others) is user-friendly, and no law degree is necessary to read and understand the concepts presented. Many of the articles also remind the reader to consult local ordinances and state laws (or attorneys) before taking action when preparing new employment policies and when hiring or firing employees.
Other general articles cover topics such as conduct that occurs when an employee is not “on the clock,” employer liability for workplace violence, and zero-tolerance and other policies against workplace violence. Two of the potentially most useful general articles discuss strategies for preventing violence in the first place and proactive planning and risk assessment. Some of the suggestions may seem like common sense but who doesn’t need a reminder of best practices from time to time?
Many of the articles will appeal to anyone interested in learning more about workplace violence, while some are more situation-specific, dealing with issues affecting public employees, public sector health care, social services workplaces, and unions. The book’s layout and the variety of topics allow readers to pick and choose what sections to read based on their own needs. The book’s claim that it is a “practical guide” for people charged with addressing workplace violence concerns is accurate. I recommend the book for anyone seeking additional information on preventing workplace violence.
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Wisconsin Lawyer
