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    Wisconsin Lawyer
    March 01, 2002

    Book Reviews

    Joseph AhernWayne BablerGeoffrey GnadtR. Michael Waterman

Book: The Winning ArgumentThe Winning Argument

by Ronald Waicukauski, Paul M. Sandler & JoAnne Epps (Chicago, IL: ABA Litigation Section, 2001). 182 pgs. $85. Order, (800) 285-2221.

Reviewed by Joseph Ahern

What is the primary goal of a trial lawyer? Command of the Rules of Evidence? Effective presentation of exhibits? Mastering the Power Point software?

A young lawyer surveying the advertisements for seminar and source material flooding his or her mailbox every day would think these are the end goals of every serious litigator. This young litigator also would surmise that an efficient relationship with opposing counsel, the respect of the judge, and effective eye contact with the jury should all be put at the top of every trial lawyer's wish list. However, the lecture circuit professionals seem to have overlooked the one constituency that ultimately matters: the client. And, of course, the client is only focused on one goal: winning the case.

The authors of The Winning Argument grasp this fundamental concept. Although liberally peppered with the insights of Aristotle, Lincoln, Cardozo, and others, the authors seldom stray far from their fundamental lessons for winning the case:

Chapter 1 - Winning Arguments are Goal Directed

Chapter 2 - Winning Arguments are Tailored to the Decision Maker

Chapter 3 - Winning Arguments are Strengthened by the Speaker's Ethos, and so on.

Although the authors cover much territory familiar to seasoned litigators and recent law school graduates, they fill the void that law schools apparently have ignored: that is, everything you do in preparation for trial is focused in one direction - win the case. The authors never let the reader forget this mantra, the word "winning" appears on the top of every page.

The book's outline form makes it a handy reference source. I suspect that law schools, law firms, and perhaps even courts will soon be littered with dog-eared copies of this book. Every litigation associate should find two things on his or her desk on the first day at work: an invitation to lunch with the senior partner, and The Winning Argument.

Joseph Ahern, Marquette 1984, is the managing partner and head of the litigation group of Stark, Reagan & Finnerty P.C., Troy, Mich.

Successful Partnering Between Inside and Outside Counsel

Edited by Robert L. Haig (Eagan, MN: West Group & ACCA, 2000). 4 vols. 6,032 pgs. 4 disks of forms. $350. Order, (800) 344-5009.

Reviewed by Wayne E. Babler

West Group has again partnered with lawyers to create a brilliant "how-to" treatise of immeasurable value. First was a partnership with the ABA Litigation Section for the treatise Business and Commercial Litigation in Federal Courts (1998). Now, it has joined with the American Corporate Counsel Association for a sequel on advising American businesses.

The four-volume loose-leaf work, Successful Partnering Between Inside and Outside Counsel, is a compendium that addresses virtually every aspect of the inside counsel/outside counsel relationship, whatever the subject and legal assignment. The editor has brought together a blue ribbon group that includes the general counsel of 80 of the Fortune 500 companies and many prominent outside counsel. Industries represented include accounting, aircraft, automotive, banking, broadcast, chemical, communications, computers, credit card, energy, entertainment, fast food, financial, health care, heavy machinery, insurance, packaged goods, paper, petroleum, pharmaceutical, retail department store, and transportation.

Each chapter is logically organized for quick and easy research, and follows a standard format beginning with a brief opening description of the scope of the chapter and ending with a practice checklist and suggested forms. The first half of the treatise is devoted to the business relationship between inside and outside counsel, and the second half covers counsel relationships in the context of specific substantive law.

The book's subjects include nuts and bolts of the inside counsel/outside counsel relationship such as engagement letters, attorney-client privilege and attorney work product, and opinion letters. Fee arrangements, budgeting, evaluating risks and costs, and communication methods are also covered. There is even a chapter on billing, legal bill audits, and use of the Uniform Task-based Management System. Even legal services marketing gets attention.

Chapters on relationships and substantive law such as transactional practice, securities, employment law, and finance, give the reader special insights from some of the most experienced lawyers in their fields. The chapter entitled "Compliance" is among the most important - here we are given a history of the use and effectiveness of compliance programs, and we are provided with a structure for such programs. With the risk of civil and criminal penalties so enormous in areas such as antitrust, international business, securities, OSHA, equal employment opportunity, patent infringement, securities, and other areas involving everyday business conduct, compliance programs are, as the authors state, "no longer optional."

The compendium ends with six very interesting case studies. Leading off is a case study that sets forth how "DuPont Legal radically redefined its entire practice of corporate law and what positive business results were produced by the new paradigm - called 'The DuPont Legal Model.'" Behind the new paradigm was a CEO directive to cut costs by $1 billion. Another case study concerns "Federated's Acquisition of Broadway - Deal Making at High Speed."

An excellent discussion is authored by Bill Calise, senior vice president, general counsel, and secretary of Milwaukee-based Rockwell International Corp., and one of its outside counsel, Peter Kolyer. In Chapter 52 they "focus on how inside and outside counsel work together to enable a public company to negotiate the challenging landscape of the federal securities laws." That is a daunting assignment, but the authors do a masterful job, walking the reader through compliance issues, cost effectiveness, coordinating working relationships both between counsel and client and between counsel and the SEC, the regulatory framework, and SEC filings.

While we might think that the subject of inside counsel/outside counsel relationships can be more than adequately covered in a law journal article, one look at the table of contents of Successful Partnering Between Inside and Outside Counsel immediately dispels the thought. This treatise is a masterpiece.

Wayne E. Babler Jr., U.W. 1967, is a partner of Quarles & Brady LLP, Milwaukee.

Success Briefs for Lawyers: Inspirational Insights on How to Succeed at Law and Life

Edited by Amiram Elwork & Mark R. Siwik (Gwynedd, PA: The Vorkell Group, 2001). 204 pgs. $26.95. Order, (215) 661-9330.

Reviewed by Geoffrey Gnadt

Being a lawyer takes its toll on the body, the spirit, and the family. Lawyers frequently lament the stress and competition among lawyers, and the struggles with the work/life balance and general disillusionment with the practice of law that can result. Success Briefs for Lawyers is a collection of essays by lawyers and judges nationwide who share their experiences and techniques in properly defining and achieving success in their lives.

The essays are personal and heartfelt and cover a wide array of themes. Two essays stress the importance of mentoring relationships at all stages of a lawyer's career. In "Alienation of Affections," an established attorney was able to get personal advice from a senior lawyer on "emeritus" status. In "True Mentoring," a younger lawyer gets career advice and eventually leaves the firm with the mentor's blessing. The author of "Is the Future What It Used To Be?" explains the pitfalls of emphasizing economics over professionalism, and explains how his firm has fought against that tendency by building communication and trust within the firm. In "Serving 'The Least of These,'" and in "Segregation: 'What is Past is Prologue,'" the authors share how the fruits of their principled efforts in support of civil rights in years past have continued to inspire and be a valuable touchstone throughout the rest of their careers.

The book is not all sunshine and roses. "My Name is Ray, and I am an Alcoholic Lawyer" tracks the ups and painful downs in the career of a lawyer and law professor who nearly destroyed his life and career before finally addressing his alcoholism. It acknowledges the importance of identifying and dealing with alcohol, depression, and substance issues early on.

Success Briefs for Lawyers is a refreshing, inspiring read that will remind you of what practicing law is - and is not - supposed to be about. The essays deal with contemporary issues and give examples of how some legal professionals have found successful ways to resolve them in their own lives.

Geoffrey J. Gnadt, Marquette 2001, is completing an MBA at Marquette University Graduate School.

Book: Modern Trial Advocacy, Law School   EditionModern Trial Advocacy, Law School Edition

Steven Lubet (South Bend, IN: National Institute for Trial Advocacy, 2000). 453 pgs. $42.95. Order, (800) 225-6482.

Reviewed by R. Michael Waterman

Too many new lawyers lament that, after three years of law school, they could not find their way to the courthouse and would not know what to do once they got there. New lawyers often regret that they were unprepared or ill equipped to handle a typical jury trial, and that their only litigation education is literally a "trial by fire." Northwestern University School of Law Professor Steven Lubet may have the key. His Modern Trial Advocacy provides a comprehensive education on all phases of litigation. The only thing that Lubet does not do is chauffeur you to the courthouse.

Modern Trial Advocacy is oriented toward law students, but practicing lawyers should not summarily dismiss it. This book starts at the ground level, covering trial basics such as attorney ethics and courtroom demeanor. Afterwards, each chapter focuses on a specific phase of trial advocacy - opening statements; examination, cross-examination, and impeachment of witnesses; objections; foundation and exhibits; closing argument; and jury selection. Within each chapter, topics are broken down and carefully discussed so as to cover every facet of trial practice and to provide practical instruction. For example, in the chapter on direct examination, Lubet first explains the rules of direct examination, but then focuses on how to implement a successful direct examination. He shows how to plan and organize a direct examination, how to use different questioning techniques, and how to deal with hostile or difficult witnesses. Each chapter addresses the rules and fundamentals of each phase of advocacy but also provides a "how-to" instruction that is easily related to an actual trial.

To facilitate its practical instruction, Modern Trial Advocacy provides useful charts, diagrams, and realistic examples to help the reader visualize and understand different trial aspects and situations. Lubet includes dozens of trial transcript excerpts to illustrate different ways of examining a witness, making a closing argument, or laying foundation for exhibits. This is not a cookie cutter manual that provides only one way of approaching a trial. The book goes well beyond that, identifying goals in litigation and giving the reader the tools to achieve those goals.

Modern Trial Advocacy focuses only on the trial and preparation for trial. It does not cover drafting of pleadings, investigation work, pre-trial motions, or any substantive area of law. The book includes some limited discussion of the rules of evidence, but the discussion is primarily geared toward the introduction of exhibits, making and handling objections, and planning direct and cross examination. The book is not an evidence manual, and it does not profess to be one.

Modern Trial Advocacy is designed for law school instruction, but it should not be immediately dismissed by practicing attorneys. This book would be helpful to new or experienced lawyers who need to brush up on litigation practice or get back to the fundamentals of trial work.

R. Michael Waterman, Hamline 1995, practices with Mudge Porter Lundeen & Seguin S.C. in Hudson, Wis., and is an adjunct professor of law at William Mitchell College of Law, St. Paul, Minn.

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, klester@wisbar.org.

Publications and videos available for review

  • Assessment of Earning Capacity, by Michael Shahnasarian (Tucson, AZ: Lawyers & Judges Publishing Co., 2001). 170 pgs.
  • Changing Jobs: A Handbook for Lawyers in the New Millennium, 3rd ed., edited by Heidi McNeil Staudenmaier (Chicago, IL: ABA Law Practice Management Section, 1999). 349 pgs.
  • Corporate Director's Guidebook, 3rd ed., by Committee on Corporate Laws (Chicago, IL: ABA, 2001). 88 pgs.
  • The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, by Robert James McWhirter (Chicago, IL: ABA Criminal Justice Section, 2001). 377 pgs.
  • Divorce Forms: A Handbook for Clients, edited by Williard H.DaSilva (Chicago, IL: ABA Family Law Section, 2001). 40 pgs.
  • Internet Law for the Business Lawyer, by David Reiter, Elizabeth Blumenfeld & Mark Boulding (Chicago, IL: ABA Business Law Section, 2001). 555 pgs.
  • Keeping Kids Out of the System: Creative Legal Practice as a Community Child Protection Strategy, by Leigh Goodmark (Chicago, IL: ABA Center on Children and the Law, 2001). 121 pgs.
  • Krueger on United States Passport Law, 2nd ed. 2000., 3rd supp. 2001, by Stephen Krueger (Hong Kong: Crossbow Corp., 2001). 400 pgs.
  • Uniform Probate Code: Official Text, Comments, History, CCH Editorial Staff (Riverwoods, IL: CCH Inc., 2001). 1,484 pgs.
  • Unlocking the Clubhouse: Women in Computing, by Jane Margolis & Allan Fisher (Cambridge, MA: The MIT Press, 2001). 172 pgs.
  • Wisconsin Secured Transactions Under Revised Article 9 of the Uniform Commercial Code: Forms and Practice Manual, with forms on disk, by Anthony C. Marino (Brooklandville, MD: Data Trace Publishing Co., 2001).

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