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Vol. 71, No. 10,
October 1998
Book Reviews
This Month's Featured Selections
Effective Depositions
By Henry L. Hecht
(Chicago, IL: ABA Litigation Section, 1997).
$110. 784 pgs.
Reviewed by Roger Pettit
In 24 years of practice, I have run across several "how to"
books that do not live up to their billing. Just when I had convinced myself
to save my money, I had an opportunity to review Henry Hecht's Effective
Depositions. Hecht is a trial lawyer turned lecturer at the University
of California - Berkeley, School of Law, and is involved with the Practicing
Law Institute.
In addition to the chapters authored by him, Hecht has assembled a group
of experienced litigators to contribute various sections and chapters depending
upon their particular expertise. The result is not so much a practice book
as it is a treatise on the subject of preparing for and taking and using
depositions. At 695 pages, excluding the helpful indexes, it would be incorrect
to refer to Effective Depositions as a handbook nor was it apparently
meant to be. All of the chapters are footnoted with the references in the
back of each chapter and the discussions are much more detailed both in
scope and background with effective illustrations than you would find in
a book of checklists. The use of a fictitious civil lawsuit makes the lecture
come to life. While the book is set up in treatise format, the writing is
entertaining, informative, and sometimes witty.
The book covers the entire subject of depositions from the analysis in
Chapter 2 of the importance of a discovery plan through the use of depositions
at trial. The coverage is detailed and full of useful practice tips (from
the examiner and defender viewpoints) covering the actual taking of depositions,
defending depositions, preparing witnesses, and using documents. The book
also contains chapters on special subjects, such as videotaping, perjury,
and the very informative - especially for younger attorneys - summarizing,
indexing, and searching deposition transcripts.
While the appendixes have the obligatory deposition notice and subpoena
forms, they also contain helpful guides for novice practitioners in questioning
witnesses regarding their knowledge of documents and the scope of their
conversations. A list of objections also is provided.
Particularly interesting was the discussion of the tactical use of 30(b)(6)
(Fed. R. Civ. P.) not only to secure testimony of corporate witnesses but
as a strategy for information-gathering. The chapters on deposing expert
witnesses and the proper use of documents at depositions are exceptional
in their analysis and importance in the overall context of the litigation.
As with any book published for a nationwide audience, the advice given
must be taken within the context of the practitioner's jurisdiction; however,
I did not find an undue amount of advice to be contrary to Wisconsin practice.
Many practitioners, including myself, may
have The Deposition Handbook by Suplee and Donaldson (Wylie Law Publications,
New York). Effective Depositions deals more thoroughly with all of
the subjects given its textbook nature, and the practitioner would be happy
to have them both. (In fact, Suplee and Donaldson author Chapter 8 of Effective
Depositions on "Substantive Preparation of the Witness").
The overall purpose of the book is best summarized by the conclusion
to the last chapter:
"In the imaginary, idealized trial, you would never use a deposition.
On direct examination, your witnesses would testify eloquently and effectively,
never once wavering from their prior, firm grasp of the facts. Nor would
you ever impeach a witness with a deposition, because on cross-examination,
every hostile witness would readily aver to the story told through your
penetrating cross-examination. Down here, though, you will need to use depositions
at trial. In the end, the outcome of your trial should depend on how well
you prepared for it, on whether you ably took or defended a deposition,
and whether you know how and when to use a deposition at trial."
In an ideal world, law school would be four years, rather than three,
for those who wished to become litigators and there would be an entire course
on the taking of depositions. Effective Depositions would get my
vote for the text to be used with that course. The attorney, regardless
of sophistication, who spends time with this book will be amply rewarded
with insight to the deposition craft.
Roger Pettit, Marquette 1974, is a shareholder
and director of Petrie & Stocking S.C., Milwaukee. He limits his practice
to civil litigation and is certified as a Civil Trial Advocate by the National
Board of Trial Advocacy.
Accounting & Finance for Lawyers
By Rose Marie L. Bukics and Cynthia M. Urbani
(Newtown Square, PA: Altman, Weil, Pensa, 1998). 347 pgs.
To order, call (610) 359-9900.
Reviewed by Martin A. Blumenthal
This is not a textbook on accounting and finance for the legal profession
but rather a guide on setting up and using an accounting system for the
solo practitioner or managing partner. For lawyers who cannot balance their
own checkbooks (you know who you are), this book will introduce you to the
buzz words and issues in the financial management of a law office.
If you are using or thinking about trying QuickenTM or QuickbooksTM for
your office, this book would be a great place to start. The authors, both
CPAs, in addition to explaining accounting concepts, even suggest various
types of income and expense accounts you may want to set up on your software.
This book is not light reading. Be prepared to study it and ask questions
of your accounting friends. For example, the material presented on financial
analysis is comprehensive. Unfortunately, this area takes a lot of experience
to get a feeling for what the numbers tell the reader. (You won't qualify
for an MBA after reading this book.)
I would have liked to see the authors discuss the concept of materiality.
For example, when certain expenses are paid - such as prepaid insurance
or supplies - the theoretically proper way to treat them is to set up
an asset, and expense the asset as it is used up. That means someone in
the office has to physically count the office supplies at the end of the
year and make the appropriate adjustments.
Can we talk? The managing partner will not roll up his or her sleeves
and inventory the firm's legal pads and pencils come Dec. 31. Further, even
if the firm's total billings are merely $50,000 for the whole year, will
a couple of hundred dollars worth of inventoried supplies make a big difference
in the net income? Of course not. This is called materiality. The effort
to conform to strict theoretical concepts sometimes far outstrips the benefits
derived therefrom.
The authors also neglected to discuss Roth IRAs in the chapter about
retirement. This is a popular topic for financial planners and much ink
has been spilled in figuring out if these new savings vehicles make sense
for an individual.
I also take issue with the authors' statement on page 114 that, "Unlike
other fixed assets, land generally appreciates, not depreciates, over time.
As a result, land is never depreciated." Accounting theory teaches
that only assets with a measurable useful life are depreciated. Since land
never is really "used up" (mining operations are another matter)
it cannot be depreciated.
Objections aside, the bottom line is this: Anyone who needs to understand
accounting and finance fundamentals will do well to study this book.
Martin A. Blumenthal, IIT Chicago-Kent 1981, is
a CPA and practicing attorney in Illinois and Wisconsin.
 Democracy at Dawn:
Notes from Poland and Points East
By Frederick Quinn
(Texas A&M University Press, 1998).
250 pgs. Retail: $29.95.
Reviewed by Lawrence G. Albrecht
What exactly do we mean by the"rule of law"? How is a democratic
state established? Following the demise of the Soviet Union and the resultant
political upheavals in Central and Eastern Europe and in the satellite states
of Asia, these fundamental problems confront the newly formed legal cultures
throughout the region. The emerging democracies in these newly independent
states must accommodate deeply divided, antagonistic, and often autonomous,
economic, religious, ethnic and cultural interests that share few common
institutions. In these countries, an open society may denote a freely segregated
society. How to accommodate and integrate fractious, competing interests
into a credible legal system is the quest.
To experience these cultures and their vibrant, detail-remembered histories
is endlessly fascinating. Frederick Quinn's travel notes record dozens of
encounters, from Warsaw to Kazakhstan, with individuals and nascent constituencies
dedicated to building legal cultures. His purpose is to report and analyze
the complex array of institutional difficulties these countries face in
the transformation from command economies in repressive states, where law
was an instrument of control and terror, to open societies supported by
positive law and enforceable commercial and human rights.
Quinn is a legal historian who holds a Ph.D. in history and has served
as a career Foreign Service officer. His academic expertise and travel experiences
have served him well in his reporting and contextual analysis. It is impossible
to approach or understand the disparate political and economic realities
in this region without a historian's perspective on the competing ancient
mythologies vying for current power and control. Traveling with colleagues
from the Organization for Security and Cooperation in Europe (OSCE) as head
of a rule of law program, Quinn participated in drafting constitutions,
organized legal seminars on the paramount need for an independent judiciary,
and talked with everyone he encountered regarding their deep-rooted fears
and shaky hopes that the rule of law will bring true stability and prosperity.
Although his work lacks a detailed overriding thesis, his experiences
introduce and illustrate the hopefulness and the complexity inherent in
the legal transformation process. Long after the constitutional scholars,
omniscient Chicago School economists, and other pundits on arcane legal
topics have had their say, history's deep divisions will continue to exert
antidemocratic pressures that undermine the due process and equal protection
foundation of the rule of law.
As Quinn reports, issues of state security
and protection of free markets predominate the legal agenda. While human
rights require genuflection by all, enforcement of positive rights lags
far behind as a priority - which is understandable given the historical
absence of independent judiciaries and the inherent civil law limitations
on judicial power. Perhaps our own common law legal history presaged this
unfolding of events in Eastern Europe and Central Asia since common law
protection of economic rights developed and preceded judicial enforcement
of civil rights by nearly a century, until "activist" judges exercised
increased powers of constitutional and statutory interpretation and policy
analysis.
Legal education reforms underway in these new legal cultures will prepare
skilled private attorneys to handle individual rights cases and creatively
expand the domain of human rights law in an orderly manner. (And, inevitably,
defense attorneys will learn how suitable for transplanting are our doctrines
of absolute or qualified immunity and other high procedural barriers that
frustrate state accountability to its citizenry.) Quinn, however, remains
hopeful that by building constitutional systems of law that reflect the
contextual convergence and blending of civil law and common law traditions,
enforced by independent judiciaries, these countries will accommodate competing
interests and build democratic societies in which individual rights, and
the market rights of corporations and other business associations, are both
pronounced and enforced. And, as he concludes, these heroic efforts against
the powerful experience of history deserve our active professional support.
Lawrence G. Albrecht, Valparaiso 1973, is a shareholder
at First, Blondis, Albrecht, Bangert & Novotnak S.C., Milwaukee. He
taught at the University of Bucharest School of Law in 1997 and consulted
at several law schools in Romania and Bulgaria on behalf of the ABA Central
and Eastern European Law Initiative.
The 1040 Handbook:
A Guide to Income and Asset Discovery
By Jack Zucker-man, William Wolf, Peggy L. Podell, and David M. Franklin
(Chicago, IL: ABA Family Law Section, 1997).
$74.95. 96 pgs.
To order, call (800) 285-2221.
Reviewed by Jeffrey W. Hart
In the movie "Jerry Maguire," Tom Cruise's client chants a
familiar message: Show me the money! The 1040 Handbook offers a similar
message for attorneys seeking to discover whether a party is hiding assets
or income: Show me your tax returns!
The authors use a hypothetical divorce proceeding to explain how attorneys
can use tax returns to discover hidden assets and income. This concise guide,
consisting of approximately 30 pages of text and numerous forms, provides
useful information for all attorneys - regardless of their practice
area - unfamiliar with income tax returns, forms, and schedules.
The authors explain each form's function and the supporting documentation
required for critical entries. By focusing on specific forms and line items,
an attorney can use a tax return and the supporting documents as a road
map to locate hidden assets and income. The handbook explains how to request
the necessary documents, start the investigation and, in complex cases,
provide a "forensic accountant" with the information necessary
to reveal concealed assets and income.
Enforcing a judgment or seeking to discover
hidden assets can be a daunting task. Opposing counsel may refuse to provide
the documents necessary to determine whether a party is concealing assets
or income. Understanding the function of tax forms and the documents supporting
each entry is important to support a discovery request. Tax returns also
may be used to show ownership and control and may serve as a basis for impeachment.
Given the wealth of information included in many returns, attorneys should
routinely seek copies of them.
The authors are no doubt working to incorporate the changes of the Taxpayer
Relief Act of 1997 into the next edition. The next edition also should encourage
attorneys to use IRS Form 4506 to obtain (with the taxpayer's consent) a
free summary of a taxpayer's returns for the last four years. The summary
will verify that the return provided actually was filed and not subsequently
amended. The authors also should explain that clients can use IRS Form 211
to collect a finder's fee of 10 percent (up to $100,000) for information
leading to the collection of a delinquent tax liability. After collecting
your client's judgment, let the IRS join the chorus: Show us the money (and
your records)!
Jeffrey W. Hart, Seattle 1992, is admitted to practice
before the U.S. Tax Court and is a member of the American and Wisconsin
Institutes of CPAs. He is an associate in the business section of Weld,
Riley, Prenn & Ricci S.C., Eau Claire.
 Leveraging
the Law:
Using the Courts to Achieve Social Change
Edited by David A. Schultz
(New York, NY: Peter Lang Publishing Inc., 1998).
354 pgs. $32.95.
Reviewed by Debra L. Quentel
This is an interesting collection of eight essays that explore the impact
of the courts on fostering change and reform in our society. Written, for
the most part, by professors of political science (and nonattorneys), the
essays are refreshing and engaging to read.
The book is part of a textbook series to teach undergraduate students
about the multi-disciplinary areas of law and politics. This particular
volume evolved from two sources. Many of the essays were prepared for the
1995 American Political Science Association Convention panel on the courts
and social change. In addition, the essays grew out of a series of issues
raised by debates between two leading political scientists, Gerald Rosenberg
and Michael McCann.
Although designed as a textbook, the book is interesting for anyone involved
in the law or who thinks about the "big picture" of law in our
society. Leveraging the Law is a wonderful excuse to look at some
U.S. Supreme Court decisions over the last 50 years and examine their impact,
if any - as some essayists argue, on society.
Each essay focuses either on a few U.S.
Supreme Court cases or case studies involving legal issues. The essays analyze
those cases against the paradigms established by the Rosenberg/McCann debate.
The essayists look at decisions in various areas of the law, including school
reform, bus boycotts, abortion, and judicial efficacy. Each essay carefully
establishes a method for collecting information on the impact of change
resulting from each decision. Also, the essays discuss the link between
the media and the courts.
I enjoyed the book because it required me to consider the law over decades.
I did not agree with all the authors' methods, or with all their conclusions;
however, I did find myself engaged in an interesting theoretical debate
while reading the essays. Because the book is a collection of essays, it
can be read in stages. The editor nicely summarized each essay's theme in
the first chapter. Each chapter is self-contained (although there are references
to the other essays) and includes a detailed list of endnotes and bibliography.
Debra L. Quentel, U.W. 1988, works for the Center
for Computer-Assisted Legal Instruction as director of curriculum development
and associate counsel.
The Time of the Gypsies
By Michael Stewart
(Boulder, CO: Westview Press, 1997)
Retail $15.96. 320 pgs.
Reviewed by Timothy McAllister
The Time of the Gypsies is a well-written socio-economic study
of the Gypsy, or Rom, culture in Communist Hungary during the mid-1980s.
Michael Stewart immersed himself in the Gypsy ghetto existence to gain understanding
and psychological insights that flush out the drier economic data.
Rom cultural identity is based upon language, the projection of an illusive
image of "brotherhood," and marginalized capitalism. The Rom do
not make claims to a territorial homeland. Rather, they substitute linguistic
affinity to establish and maintain their culture. The male-dominated society
is centered upon the brotherhood of the Rom. This is a supposedly nonhierarchical
group identity in which the past is "forgotten" and the present
lived for and shared. Living upon the refuse and foolishness of the peasants
is preferred to wage-labor. The Rom raise animals, particularly horses,
for profit and trading purposes. Cultural idiosyncrasies, such as the Rom
aversion to bathing ("sitting in one's filth"), also are discussed.
The communist government of Hungary attempted to assimilate the Rom through
"forced" wage-labor and schooling. The government believed, as
did the majority of the Hungarian Magyar population, that an "honest
day's work" was essential to the individual and their culture. Thus
the Rom were put to work, but in the lower-paying factory positions. The
mutual distrust and misunderstanding of the values of the Rom and Magyar
cultures perpetuated the marginalization of the Rom.
What can be viewed as a form of "affirmative
action" impeded the assimilation by forcing diverse cultures to act
as if their values were the same. The failure of the Rom and Magyar cultures
to mesh cemented the ghettoization of the Rom and their secondary status.
This was furthered by the majority Magyar view that the Rom were cultureless
and the establishment of special "Schools for the Educationally Subnormal"
in which Rom children were educated.
The Rom aspirations for the good life and free lunch culled from the
peasant Magyar clashed with the Magyar penchant for diligence and thrift.
In reality though, the two cultures were interdependent in that each provided
the goods and services that the other was ashamed to perform.
The text is enhanced by charts, black and white photographs, translated
songs to illustrate cultural points, a glossary of terms, and plenty of
footnote documentation. Overall the text is well-done, but the specialized
topic will limit the number of readers.
Timothy McAllister, U.W.-Oshkosh 1997 Master of
Public Administration, is employed by the Department of Corrections at the
Wisconsin Resource Center.
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