Vol. 79, No. 6 June
The Law of Damages in Wisconsin, 4th Edition
Edited by Russel M. Ware, 79 authors (Madison, WI: State Bar
CLE Books, 2005). 1,300+ pgs., vols. I-III (inc. 2006 supplements -
vols. I-II). $185 member; $235 nonmember. Order, www.wisbar.org; (800)
Reviewed by Scott L. Schroeder
Damages are an often overlooked aspect of litigation. Many a new
trial attorney has learned the hard lesson of emphasizing liability and
letting damages slide. This three-volume treatise is the starting place
for answering any damages question. Many of the topics could each fill a
volume, but then this treatise would be dozens of volumes long. The set
provides a clearly written, succinct launching pad for any research on a
damages question. There are plentiful citations for more in-depth
coverage on any given topic.
This set takes the law of damages from its most basic level, such as
distinguishing between general damages and special damages, to the
detail and legal authority needed to argue for a particular type of
damage claim before a court. For example, the collateral source rule has
often been a difficult concept for this reviewer to comprehend and
retain. This section makes the concept clear.
Helpful practice tips that give hands-on advice for practitioners are
included throughout the treatise. For example, the treatise will help
you decide when you need an expert to prove a specific type of damage
and when you can get by with a lay witness. Saving the cost of an expert
in just one case alone warrants the price of the treatise. The book
contains much overlap with evidentiary issues on how to get the
necessary evidence into the record to prove a specific damage claim. The
evidentiary standard and sufficiency of evidence are discussed in most
of the damages topics. The treatise also includes a brief discussion of
different claims, and lists the elements needed for each cause of
In a perfect world, a treatise on damages would have a source of jury
verdicts and reported settlements meshed in with each damages topic. For
example, under pain and suffering, there could be a searchable database
with jury verdicts and reported settlements showing how much a jury
would award for different types of injuries. This addition probably
would be best suited for a book in electronic form. I also would like to
see more discussion of federal preemption and ERISA's impact on
The treatise is divided into useful sections that make it easy to
find exactly what you are looking for. The headings are meaningful. The
authors are generally leaders in their particular fields and are
balanced between plaintiffs' attorneys and defense attorneys. There is
no perceptible bias toward plaintiffs or defendants.
This book is invaluable as a first resource when starting a large
research project or for quickly getting a straightforward answer to a
simple question. I highly recommend this set as a must-have for anyone
involved with litigation.
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Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005
By Sheila M. Williams & George M. Basharis (Riverwoods,
IL: CCH Inc., 2005). 400 pgs. $57. Order, www.onlinestore.cch.com;
Reviewed by Yvonne M. Novak
This is a necessary handbook not only for bankruptcy practitioners
but also for attorneys who work for creditors and attorneys who practice
family law. Moreover, due to the number of mandates imposed on
creditors, any practitioner who represents a client in a credit-related
matter may find this book a good guide for the disclosures and
timeframes that this Act requires the credit industry to follow.
This book includes the full text of the Act, in addition to a table
of statutes added or amended by the Act, a table of effective dates,
selected portions of the House report, and a summary in plain English of
each change. Each of the 14 explanatory chapters breaks its subject
matter into an easy to follow application of the new Act. Practitioners
will find the CCH comments and cautions of particular note, as they
focus either on gaps in the law or on differences between districts that
the Act may or may not have resolved.
Most of the Act's provisions became effective on Oct. 17, 2005. Some
practitioners might prefer a book with a redline comparison of the Act
to the prior law; however, I found the general commentary to be more
helpful than the redline would have been and used the table of statutes,
added or amended, to look for the changes in the sections most
applicable to my bankruptcy practice.
Yvonne M. Novak, North Dakota 2003, is an associate in the Duluth,
Minn., office of Gerlach Beaumier, Attorneys at Law LLP. She focuses her
practice on bankruptcy, commercial transactions, and corporate law.
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Discovery Problems and Their Solutions
By Paul W. Grimm, Charles S. Fax & Paul Mark Sandler
(Chicago, IL: ABA Litigation Section, 2005). 467 pgs. $65. Order, (800)
Reviewed by Nicholas C. Zales
No one likes discovery disputes. They are messy and time-consuming.
With discovery at the heart of civil litigation, and with so many cases
being decided before trial on motion, discovery is more important than
ever. This useful book focuses on real-life situations and how to deal
with them. Bridging the gap between theory and practice, the authors,
the Hon. Paul Grimm, a federal magistrate judge, and experienced
litigators Charles Fax and Paul Sandler, set forth more than 50 typical
hypothetical situations, and then engage in a concise and authoritative
discussion of the case law on both sides of the issues. The book is
based on the Federal Rules of Civil Procedure, with four appendices
containing analyses of the Rules, sample federal local rules and
interrogatories, and the ABA's 2004 Civil Discovery Model Rules.
The book is divided into four primary sections: 1) Interrogatories,
Document Requests, Requests for Admission, and Motions for Mental and
Physical Examinations; 2) Depositions; 3) Experts; and 4) Sanctions and
Each section contains a wealth of realistic scenarios, discussions of
federal case law, and easy-to-follow suggestions on how to use the Rules
in your favor. Dealing with the practical realities of civil practice,
the book covers all the discovery disputes you are likely to encounter.
By using these realistic scenarios and then discussing how counsel
should and should not act and why, the authors, who geared this book to
new lawyers and legal assistants who often are assigned discovery tasks,
have done all lawyers a great service. Knowing what to say or not say,
what to reveal or not to reveal, when to act, and who will pay if
sanctions are imposed are crucial matters in discovery. This book will
benefit anyone new to civil discovery and experienced litigators looking
to bring others up to speed.
Many discovery disputes implicate more than one rule, and you can be
right on one but wrong on another. This book helps you avoid that
situation with an integrated approach and discussion of how the Rules
work together. Technology has greatly affected discovery, and the
authors cover electronic discovery in depth. Sprinkled throughout the
book are excellent practice tips and checklists for dealing with common
discovery issues, such as what to do before making a motion to compel
Determining what is reasonable and proper in discovery is a difficult
task. This book goes far in collecting and analyzing, in an easy to read
way, cases and proposed standards for conducting discovery. By dealing
with the rules in real-life typical situations, the authors succeed in
showing how to use the rules to your advantage, how to conduct effective
discovery, how to deal with unruly opponents and best of all, how to
ensure your conduct in discovery is appropriate at all times. While this
book is focused on the Federal Rules, the Wisconsin Rules are
substantially similar because they are based on the Federal Rules, and
the sound advice the authors impart is easily applicable to Wisconsin
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Judges Say the Darndest Things
By Fred Shackelford (Buffalo, NY: William S. Hein & Co.,
2004). 113 pgs. $43. Order, (800) 828-7571.
Reviewed by Laura O'Flanagan
The title gives this compilation away. It is a hand-picked series of
humorous and refreshing court opinions that demonstrate the foibles of
our chosen profession. Fred Shackelford does an excellent job presenting
these excerpts with enough narration to thread sets of case decisions
together and to give the reader a good chuckle.
It is interesting to note how frequently judges refer to the analogy
of law as a ship on turbulent seas. Also, it is reassuring to observe
that judges everywhere and for ages have discovered language that can be
used to bludgeon the attorneys before them. In one case, a judge
verbally trounced a party for requesting $3,000,000,000,000 in damages
resulting from an alleged deprivation of constitutional rights. In
another case, the court chided a seller for not disclosing the fact that
a ghost resided in the home at the time of sale.
How revitalizing to read about the humor in our ongoing efforts in
the courtroom. I am especially fond of the selected judges' use of
language. There are examples of beautiful prose, prolific legalese,
slang, and clear and simple "straight talk."
The most enjoyable thing about the compilation is that it gives an
attorney an opportunity to view the legal profession as more than a
place to resolve sometimes complex and painful conflict. Judges Say
the Darndest Things reminds us that we can laugh at ourselves. The
book shows us that there is room for creativity and artful expression as
well as honest, funny, constructive criticism in our courtrooms.
Constitutional Chaos: What Happens When the
Government Breaks Its Own Laws
By Judge Andrew P. Napolitano (Nashville, TN: Thomas Nelson
Publishers, 2004). 234 pgs. $26.99.
Reviewed by Donna M. Jones
You need not share his belief in "Natural Law" to agree with Judge
Napolitano that people are being deprived of constitutional rights and
civil liberties by governmental officials who should not be violating
those rights and liberties. He believes these officials are breaking the
law when they commit these violations. Further, he believes the courts
should right these wrongs when they are brought to the courts. But, the
Napolitano wrote Constitutional Chaos because of his firm
belief in "Natural Law" and the "sea change" in his thinking that
resulted from his "professional intimacy with the system." That
"intimacy" consists of being a state court judge, law professor, and now
senior judicial (news) analyst. His thinking changed when he realized
the extent of the problem.
"Natural Law" teaches that "law extends from human nature, which is
created by God." Accordingly, constitutionally guaranteed rights and
freedoms can only be denied if procedural due process is followed. This
is critical and there should be no exceptions. It protects the minority
from the majority.
In Constitutional Chaos, Napolitano provides many compelling
examples of what he feels are constitutional violations. Local police,
prosecutors, and the FBI succeeded in convicting and keeping in jail for
30 years a man who they knew did not commit the murder for which he was
convicted. Thirty-eight convictions for drug dealing resulted from
arrests made in one day by one officer who had no verifying evidence.
Some of the sentences were for up to 99 years. Four years later, all
involved were exonerated because the officer was unscrupulous and
"The War on Terror" has introduced the PATRIOT Act and other
approaches that affect rights and liberties. Being labeled an "enemy
combatant" or "material witness" can mean being held indefinitely
without benefit of counsel or a hearing. "Special interest" immigration
cases receive extra security and are completely closed to the public,
which means that no one (not even an immigrant's family) knows what
happened to the immigrant.
This very readable book is an important digest. It reveals ways in
which rights and liberties are being threatened or denied. Take
Donna M. Jones, U.W. 1979, is president-elect of
the Nonresident Lawyers' Division and a past member of the State Bar
Board of Governors. She resides in Austell, Ga.
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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, email@example.com.
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Custody & Support, edited by Robert A. Stein (Chicago, IL: ABA,
2006). 240 pgs.
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Judge for Yourself: Clarity, Choice, and Action in Your Legal
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by Marianne Constable (Princeton, NJ: Princeton Univ. Press, 2006). 232
Smart Negotiating: It's a Done Deal, by John Patrick Dolan
(Irvine, CA: Entrepreneur Press, 2006). 172 pgs.
Toward a Civil Griffin in Wisconsin: Equal Justice Under the
Wisconsin Constitution, by John F. Ebbott, Kevin G. Magee, &
Jack W. Ebbott (Milwaukee, WI: Legal Action Press, 2005). 200 pgs.