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    Book Reviews

    Donna JonesEdward MarionReed PetersonJ.P. Fernandes

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    Wisconsin Lawyer
    Vol. 76, No. 2, February 2003

    Book Reviews

    Book: The Winning ArgumentTaking Sides on Takings Issues

    Edited by Thomas E. Roberts (Chicago, IL: ABA State and Local Government Law Section, 2002). 600 pgs. $90. Order, (800) 285-2221.

    Reviewed by Edward S. Marion

    Whether you are a seasoned practitioner, a newcomer with a particular case to research, or just a reader with time on your hands, you will find this beefy tome worth reading. The book arose out of a 1999 retreat sponsored by the ABA State and Local Government Law section. Twenty-four academics and practitioners spent four days attempting to reach consensus on key propositions in this dynamic and complex field. The resulting report forms the basis for this useful and enjoyable book.

    Wisconsin lawyers are well schooled in the law of takings. Our supreme court has tackled just about every land use issue (including the landmark Just decision). So, a survey of Wisconsin takings jurisprudence is not hard to find. But, for a general treatment, Taking Sides on Takings Issues is certain to become the one-volume treatise of choice. Its introduction - itself, a survey of the law - is the contribution of Wake Forest law professor Thomas E. Roberts, the editor of Taking Sides, based on his fine land use treatise (West 1998). What follows are 22 chapters treating all of the concepts introduced by Prof. Roberts.

    You can read about the seminal federal Supreme Court cases from the lawyers who argued them, the amicie who helped brief them, and the scholars who have meticulously studied them. The chapters are grouped into 11 relatively general categories, including a discussion of fundamental property and nuisance law principles, defining the unit of property, and the law of temporary takings. The book also covers the key U.S. Supreme Court precedents and the state decisions developing them.

    Takings law is a fascinating subject, combining bedrock constitutional principles with familiar common law subjects, like the law of nuisance. This book is so well done, it could be recreational reading. Add it to your reading list.

    Ed Marion, U.W. 1974, is general counsel of the Wisconsin Public Service Commission, where rights-of-way for utility projects are becoming more contentious issues. He formerly worked for the Wisconsin Department of Justice and Murphy & Desmond S.C.

    Decision by Trial: A Collection of Articles on Juries, Jury Research and Juror Attitudes

    Edited by P.K. Anthony, A.H. Colman, H.Z. Hutchins (San Francisco, CA: Matthew Bender, 2002). 365 pgs. $60. Order, www.decisionquest.com.

    Reviewed by Donna M. Jones

    For more than a decade, DecisionQuest Inc., a trial consultant firm, has conducted psychological research on the jury trial process. Its research has included extensive pre-trial mock trials and post-trial interviews, and surveys involving "hundreds of thousands of actual and surrogate jurors." Its goal? To provide trial lawyers with the "four key elements to success in the courtroom: knowledge, control, persuasion and winning." This all sounds very impressive.

    In Decision by Trial, DecisionQuest attempts to share its impressive research results with the broader community. Unfortunately, the information is sometimes presented so poorly that it distracts the reader from fully appreciating the contents. Too many of this book's 63 articles are affected. Quotation marks are missing from either end of various quotes throughout. There is redundancy. The first typographical error appears on page three. One article ends with a numbered list of references, but its text lacks the corresponding reference numbers. Single-page "Trial Tips" provide quick pointers, but they cannot be revisited quickly because they are not listed in the table of contents or synopses. Some tips even seem misplaced, like the "Trial Tip" on risks involving voir dire. It appears at the beginning of the chapter on "Gender and Ethnicity: Diversity in the New Century" instead of with voir dire articles.

    An unnamed author of the first "Trial Tip" refers to himself or herself on page five with the word "my," but the reader does not know who he or she is. In fact, no authors' names are given with articles.

    Nonetheless, several well-written articles do shine through. They cover voir dire in business litigation, removing juror bias, commensurability, "stage management" regarding jurors' attitudes, importance of witness credibility, storytelling techniques and a legal story, risks of arguing alternative damages, "adventures" in media limelight, and visual evidence and ethics. Also, annual juror survey results are summarized in the appendix.

    DecisionQuest might want to remember that one never gets a second chance to make a first impression.

    Donna M. Jones, U.W. 1978, is a member of the Gender Equity Committee and a past member of the State Bar Board of Governors.

    Effective Use of Courtroom Technology: A Lawyer's Guide to Pretrial and Trial

    By Deanne C. Siemer, Donald H. Beskind, Anthony J. Bocchino, Frank D. Rothschild (Notre Dame, IN: National Institute for Trial Advocacy, 2002). 417 pgs. With disk. $59.95. Order, (800) 225-6482.

    Reviewed by Reed J. Peterson

    "[T]he advocate with the technology-enhanced displays often has a significant advantage in holding jurors' attention and creating a faster understanding of the facts, themes, and images that drive the case." Effective Use of Courtroom Technology is about more than using technology in the courtroom. It's about understanding current technologies, knowing how to use them to your advantage before and during trial, and knowing how not to get taken advantage of by an opposing counsel who is more techno-savvy.

    The book covers four main areas: discovery, pretrial, trial, and current technologies and tips and techniques for using the technologies. The book comes with a CD that illustrates some of the points in the book, but if you are buying the book in the hope of getting a great piece of software, you will be disappointed. For all intents and purposes, the CD contains a PowerPoint presentation with several examples of ways to use presentation software and an electronic brief that was filed in the Microsoft case.

    The chapter on discovery discusses how to leverage technology and how to anticipate issues that may arise in electronic exchanges of discovery materials. It also discusses potential conflicts and abuses in the discovery process and ways to avoid problems. The chapter on pretrial procedures focuses on how to prepare for trial using technology to win your case. It also discusses how to ensure that you aren't taken by surprise at trial by an opponent who puts a prejudicial exhibit or illustrative aid in front of the jury. The chapter on trial discusses using technology in opening statements, during the evidentiary portion of trial, and in closing arguments. It also delves into common objections that may arise. Of interest in this chapter are subtle ways visual images can send subconscious messages, for example, the use of a red border around photos of an accident intersection to subconsciously convey that a traffic light was red. Given the ease with which these subconscious messages can be created and removed, there is a greater risk that attorneys will try to use these methods with newer technology than with older exhibits, because if an objection to the subtle message is sustained, the offending portion can be removed easily. The successful trial advocate will want to be aware of these subtleties.

    If you are not very techno-savvy, this book may be a difficult read. Many of the terms in the first chapter are technical, and if you don't have the background in the terminology, you will be flipping to the glossary of terms quite often. If you are inexperienced with technology, look at the CD first to give yourself a visual reference for the book. You also may want to read chapter 5, "Tips and Techniques for Using the Equipment," before you read the rest of the book because it will give you a good sense of the equipment that is discussed early on.

    If you don't want to be taken advantage of in the courtroom by someone who has the technical sophistication to put on a technology-enhanced case, it is necessary reading. If you are techno-savvy, the book will give you ideas to enhance your use of technology and to make your presentations better. However, the book does not put enough emphasis on having someone in charge of the technical components of the case at trial. The last thing you want to do at trial is to focus on a computer rather than on your case.

    Reed J. Peterson, U.W. 1995, recently returned to private practice in Madison after spending two years with Epic Systems Corp., a developer of software for the healthcare industry. He previously was in private practice with a focus on litigation.

    Wisconsin Secured Transactions Under Revised Article 9 of the Uniform Commercial Code

    By Anthony C. Marino (Brooklandville, MD: Data Trace Publishing Co., 2001). $197.91. Order, (800) 342-0454.

    Reviewed by J.P. Fernandes

    As Wisconsin (and the rest of the country) shifts from the original laws of secured transactions written by Prof. Llewellyn to the new and improved Article 9 of the Uniform Commercial Code, most practitioners will have to deal with these changes. Rather than attend yet another seminar on the differences between "Old-9" versus "New-9" or invest hours reading a treatise that in the end really does not tell you how to actually do anything, the Wisconsin Secured Transactions Under Revised Article 9 of the Uniform Commercial Code, Forms and Practice Manual is a viable option.

    The manual is organized with the practitioner in mind, and its easy-to-use format is one of its greatest attributes. The manual's text is composed of 14 chapters - 13 of substantive content and one chapter of forms - which also are provided on disk.

    The book begins with an explanation of the transition period from the Old-9 to the New-9 and highlights important dates, deadlines, and the consequences of improper filings et cetera. The remaining 12 sections generally follow the new Article 9's structure, examining the new definitions through the revised Code's enforcement and remedies provisions. Throughout the manual, new terms are highlighted in bold text so they can be easily spotted, and "Practice Pointer" text boxes routinely appear, offering brief tips for the working lawyer. The forms chapter provides a hard copy of the 72 model documents also on the accompanying disk. The forms range from basic notice and filing letters to lengthy security agreements - all of which are easily accessible with today's word processing. Furthermore, the excellent Forms Index makes finding the right document painless.

    The only real downside is that the manual, particularly the forms, is written from the secured lender's perspective and is not too favorable to the debtor. In a perfect world, the forms might be written with both sides in mind so practitioners representing commercial borrowers would have more to work with. However, the author candidly discloses this perspective upfront.

    The manual comprehensively covers routine secured transactions under the new Article 9. What makes this work so helpful is that Wisconsin practitioners can extract what they need efficiently without giving up any real substantive information.

    J.P. Fernandes, Marquette 1997, is an associate at the Milwaukee firm of Deutch & Weiss, practicing corporate law and business litigation.

    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, org klester wisbar wisbar klester org.

    Publications and videos available for review

    • Be Careful Who You SLAPP, by Michelangelo Delfino & Mary E. Day (Los Altos, CA: MoBeta Publishing, 2002). 423 pgs.
    • E-Health Business and Transactional Law, edited by Barbara Bennett, ABA Health Law Section (Washington, D.C.: Bureau of National Affairs Inc., 2002). 782 pgs.CD-ROM.
    • Emblems of Pluralism: Cultural Differences and the State, by Carol Weisbrod (Princeton, NJ: Princeton Univ. Press, 2003). 232 pgs.
    • The Handbook of Law Firm Mismanagement for the 21st Century, by Arnold B. Kanter (North Haven, CT: Catbird Press, 2002). 224 pgs.
    • Going to Trial: A Step-by-Step Guide to Trial Practice & Procedure, 2d edition, with diskette, edited by Daniel I. Small (Chicago, IL: ABA Publishing, 2002). 298 pgs.
    • Megamall on the Hudson: Planning, Wal-Mart, and Grassroots Resistance, by David Porter & Chester L. Mirsky (Victoria, B.C., Canada: Trafford Publishing, 2002). 520 pgs.
    • Minnesota Legal Research Guide, 2d edition, by John Tessner, Brenda Wolfe, George R. Jackson (Buffalo, NY: William S. Hein & Co. Inc., 2002). 479 pgs.
    • The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, by Walter K. Olson (New York, NY: St. Martin's Press, 2003). 352 pgs.
    • State Public Construction Law Source Book, by Michael K. Love & Douglas L. Patin (Riverwoods, IL: CCH Inc., 2002). 1,616 pgs.