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    Mike LambBrent DeBord

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    Wisconsin Lawyer
    Vol. 76, No. 3, March 2003

    Book Reviews

    Book: The Winning ArgumentAlternatives to Litigation: Mediation Arbitration and Art of Dispute Resolution, 2nd Edition

    By Abraham P. Ordover & Andrea Doneff (South Bend, IN: National Institute for Trial Advocacy, 2002). 270 pgs. $42.95. Order, (800) 225-6482.

    Reviewed by Mike Lamb

    With the hunt afoot for alternatives to litigation's costs and aggravations, Ordover and Doneff provide a useful map of the ADR territory in this second edition. This volume sets out major areas in the field: interest-based problem solving theory and skills, negotiation, neutral evaluation and expert fact-finding, mediation, and arbitration. A detailed discussion of mediation comprises half the book. Unobtrusive footnotes and a working bibliography provide resources for more detailed exploration. Strangers to the land of ADR and experienced travelers, whether advocate or neutral, will find this book a useful guide.

    The authors draw useful examples from industry, commerce, employment, divorce, construction, and personal injury. Well-developed characteristics of particular subject matter such as employment, divorce (which merits its own chapter), and personal injury receive extensive treatment. In particular, the divorce materials provide additional appendices and checklists. The book lacks an index, an omission that is somewhat offset by a detailed table of contents.

    This book cautions that several issues in ADR remain unresolved, noting:

    • an ongoing debate as to whether lawyers who act as mediators also are acting in their capacity as lawyers
    • predispute agreements for private arbitration implicate public policy, the role of the judiciary, and equity of such bargains
    • mediators may have an obligation to reveal certain information shared with them
    • state requirements that mediators disclose bad faith by parties raise unsolved issues
    • the law of at-will status for employees may change with the existence of agreements to arbitrate employment disputes.

    The authors caution that the route through alternatives to litigation is under construction and hazardous at times.

    Mike Lamb, St. John's 1983, practices employment law in Chicago.

    Rest Assured: The Sabbatical Solution for Lawyers

    By Lori Simon Gordon (Chicago, IL: ABA Career Resource Center, 2002). 140 pgs. $59.95. Order, (800) 285-2221.

    Reviewed by Brent DeBord

    While a partner at the Chicago office of Latham & Watkins, attorney Lori Simon Gordon began to question the wisdom of her career choice. She had been a partner for four years and had developed an active practice with prestigious clients. Still, she found herself wanting a break. She wanted a chance to review her career and reevaluate her life. So she asked for a sabbatical.

    In Rest Assured: The Sabbatical Solution for Lawyers, Gordon proposes sabbatical leaves as a solution to lawyer burnout. Rather than leaving the practice in frustration or enduring the fatigue that can come after years of practicing law, Gordon proposes that the legal culture follow the example of academia and allow attorneys occasional long-term leaves from their careers with pay and benefits.

    In support, she describes the sabbatical practices of several firms across the nation. These firms range in size from solo practices to firms employing scores of attorneys. Some firms only allow partners sabbatical leave, while others include associates, paralegals, and staff. At some firms, leaves are as short as a month, while others are longer than a year. Sabbatical compensation ranges from full pay with benefits to reductions in both.

    Gordon writes to assist both the attorney seeking leave and the partner or human resources director considering a sabbatical program. She persuasively describes how sabbaticals can benefit both the firm and the individual by allowing attorneys to refresh the mind, body, and spirit without abandoning hard-earned positions and careers. Gordon helpfully includes the actual sabbatical policies from several firms.

    Unfortunately, Gordon's own story acts to defeat her arguments. After taking a year-long sabbatical from Latham & Watkins, she decided to leave the firm.

    Brent H. DeBord, Marquette 2001, practices criminal defense and juvenile justice as an associate with Chaplin Law Office, Marinette.

    Eyewitness Testimony: Challenging Your Opponent's Witness

    By Brian L. Cutler, Ph.D. (Notre Dame, IN: National Institute for Trial Advocacy, 2002). 168 pgs. $19.95. Order, (800) 225-6482.

    Reviewed by Jesús G.Q. Garza

    Perhaps this book would have been more aptly titled: "The illusion of eyewitness testimony." So how much credence should we give to the testimony of an eyewitness? Well, it depends. Apparently the forward thinking is such that eyewitness testimony, which many believe is the foundation upon which cases are won or lost, is showing signs of weakness. Although helpful in providing ways to look at eyewitness testimony more critically, this book does not answer the credence question directly. What this book does do is shed considerable light on the ways a practitioner is able to effectively challenge the so-called eyewitness.

    "Eyewitness testimony is not a statement of fact," writes Dr. Cutler. With this concept in mind, this pocket-sized guide provides plenty of insightful tools that get at the core of the effectiveness of eyewitness testimony, which includes much more than just the adequacy of the witness's ability to accurately remember an event. The "more" includes the participation and involvement of the many players involved in a case in which eyewitness testimony is critical. For example, in a criminal case, how a lineup is conducted or a photo array is presented may unwittingly influence an eyewitness's memory of the perpetrator. Dr. Cutler addresses this notion of influence.

    You need not read the book cover-to-cover to get at the useful information. Nor will you need to wade through paragraph upon paragraph of writing because this is truly pocket-sized and short - very short, which is really its only drawback. The length of this book lends itself more to an article, or series of articles, than to an actual book. But, at 20,000 words (the average novel contains about 100,000 words), this book is an easy read both in terms of length and layout. Short sentences get to the point quickly. Yet this book still contains enough examples to drive its point home. The point being that, "eyewitness testimony is an expression of belief based on one's memory." And because one's belief can be influenced by a myriad of factors, which this book covers nicely, a witness's memory can be effectively challenged without directly attacking the witness's credibility.

    Although the shortness of the book is both a plus and a minus, I would recommend it.

    Jesús G.Q. Garza, U.W. 1996, is an attorney in the Office of Legal Counsel at the Wisconsin Department of Health and Family Services.

    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

    • The Election Law Primer for Corporations, Third Ed., by Jan Witold Baran (Chicago, IL: ABA Business Law Section, 2002). 280 pgs.
    • State Public Construction Law Source Book, by Michael K. Love & Douglas L. Patin (Riverwoods, IL: CCH Inc., 2002). 1,616 pgs.