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Vol. 72, No. 9, September
1999 |
Book Reviews
This Month's Featured Selections
Estate Planner's Guide to Family Business Entities
By Louis A. Mezzullo
(Chicago, IL: ABA Real Property,
Probate and Trust Law Section, 1998).
214 pgs. $89.95.
Reviewed by Martin A. Blumenthal
This guide speaks to the seasoned tax professional and is
not meant for the general practitioner. The language is terse
and technical with very few illustrative examples. The book provides
a good survey of the tax law concerning partnerships and corporations
and would be a handy reference for a tax person.
The goal of estate and tax planning is combining the client's
wishes with tax savings where possible. The book treats the area
of estate and tax planning that maps out strategies for getting
the kids into the family business without also taking in the
government as a partner. To reach this goal, one needs to know
how to structure the business (type of entity), the tax laws
that apply to that entity (partnership, corporation, and limited
liability company), the gift and estate tax laws, and a smattering
of trusts.
There are some sample forms for organizing a limited partnership
and for a limited liability company. These forms illustrate many
of the choices that partners or members have in organizing the
operating structure of the business entity.
This guide probably would sell better among some general practitioners
if the language did not sound like a treasury regulation and
major concepts were illustrated by examples. Tax issues are difficult
to understand in the abstract, which is why a general practitioner
would not find this work useful.
Martin A. Blumenthal, IIT Chicago-Kent
1981, is a CPA and practicing attorney in Illinois and Wisconsin.
Bad Software:
What to Do When Software Fails
By Cem Kaner & David Pels
(New York, NY: John Wiley & Sons, 1998).
365 pgs. $23.99.
Reviewed by Richard Berkley
This book probably should go on every computer user's
bookshelf, and particularly on lawyers' bookshelves. Like
the best of Nolo Press books, Bad Software uses a consumer-oriented
approach to demystifying an area in which one's rights and
remedies are not immediately clear. Better yet, in addition to
making the book accessible to nonlawyers, there are sufficient
citations to precedent - and a specialized, linked Web site
- for lawyers to use this book as a professional reference.
The authors designed the book to be a "readily accessible
problem-solving tool." The first chapter instructs the reader
how to decide whether there is a right to a refund, and how to
get one. It also briefly discusses the Uniform Commercial Code
(UCC) rejection rules, and offers tips on what order to read
the chapters if one only wishes to quickly solve a specific problem.
The book has two general categories of chapters: 1) overview
chapters that provide insight into one's situation and into
choosing one problem-solving approach rather than another; and
2) self-help chapters that render valuable advice on substantive
rights and the proper procedure to gain the desired remedy. Chapter
2, for example, explains briefly why businesses release bug-plagued
software, and why customer help lines are often of poor quality.
Chapter 3, in contrast, gives an easy-to-follow 10-step process
to make that first call to the software publisher requesting
them to make you whole.
Chapters 1-7 provide the means and rationale for why and how
one would attempt to solve problems with a software publisher
without the assistance of counsel. Chapters 8-10 provide an overview
of a paradigmatic lawsuit. These chapters provide information
helpful in determining how one might decide between hiring counsel
or proceeding in a small claims venue.
Bad Software concludes with a well-reasoned discussion
of the proposed Article 2B of the UCC, and, in the authors'
opinion, why it is bad for consumers and small business owners
such as sole practitioners or smaller partnerships. Since this
section is extensively footnoted and followed by several relevant
references, it provides a foundation upon which readers can form
their own opinions about UCC 2B.
Lawyers should read Bad Software if only for its advice
on avoiding purchasing poor quality software and how to gain
a better bargaining position from the moment of purchase. The
book gains value with its plain-English discussion of the Magnuson-Moss
Act's effect on software warranties, the 7th Circuit's
ProCD decision on "shrink-wrap" and "click-wrap"
licenses, and its easy-to-follow discussion of warranty disclaimers
and limitation of remedies.
Richard Berkley, U.W. 1997, is an attorney
with the NYC Division of Information Technology & Telecommunication
in Brooklyn, N.Y., practicing in technology, telecommunications,
and intellectual property law. He is licensed to practice in
New Jersey, New York, and Wisconsin.
Employment Litigation Handbook
Edited by John W. Green & John W. Robinson IV
(Chicago, IL: ABA Litigation Section, 1998).
345 pgs. $89. To order, (800) 285-2221.
Reviewed by Kristine Nelson Fuge
The 1990s have brought a tremendous change in employment law
through both judicial and legislative regulation of the employment
relationship. Federal initiatives such as the Americans with
Disabilities Act and Family Medical Leave Act and the rise in
employment-related tort claims such as defamation, negligent
retention, and infliction of emotional distress have forced employers
and employees to increase their knowledge of the employment relationship.
The 1998 U.S. Supreme Court decisions in Faragher v. City
of Boca Raton, Burlington Industries Inc. v. Ellereth
and Oncale v. Sundowner Off Shore Services provided further
evidence of the continued growth and importance of employment
litigation in this country.
The Employment Litigation Handbook is a compilation
of academic expertise and practical advice from attorneys with
diverse perspectives. The editors have made a special effort
to include both employee and management viewpoints to provide
balance. Contributors include in-house counsel, mediators, and
attorneys in private practice from across the nation.
The book provides a topical format, each chapter discussing
different stages and considerations involved in the employment
litigation process. Sample materials, included in the appendices
of most chapters, are informative and useful. Throughout the
text, relevant cites to the applicable statute, rule, case, or
code are included for further reference.
The book's first section discusses considerations in
commencing the lawsuit, such as damages, complaint drafting,
venue selection, and case evaluation. Practical tips on responding
to the lawsuit follow. After the suit has been commenced, various
pretrial considerations are examined, including discovery techniques
and the use of experts. Discovery is approached from both an
employee and employer standpoint, offering a simplified list
of major information topics to be sought by plaintiff's
attorneys along with techniques for employers to avoid inconsistencies
in responding to discovery.
For practitioners unfamiliar with basic trial theories of
employment cases, the editors have included a chapter offering
advice on how to successfully explain the case to the fact-finder,
tips on the proper selection of witnesses and exhibits, and specific
preparation techniques for trial. The book also addresses ethical
issues and provides a framework to analyze potential conflict
of interest situations. The editors also have included a section
on arbitration and mediation of employment disputes that contains
thoughtful advice on deciding when or if to engage in alternative
dispute resolution.
Whether a seasoned or new employment law practitioner, the
Employment Litigation Handbook is an inexpensive and valuable
resource for attorneys.
Kristine Nelson Fuge, Hamline 1996,
is an associate with Hebert, Welch & Humphreys P.A., Forest
Lake, Minn. She practices primarily in civil litigation, including
employment law, in Minnesota and Wisconsin.
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