The 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.
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.
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.
Modern 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.
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).
Wisconsin Lawyer
