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    Wisconsin Lawyer
    June 01, 2006

    Book Reviews

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 6  June 2006

    Book Reviews

    The Law of Damages in WisconsinThe 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,; (800) 728-7788.

    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 action.

    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 damages.

    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.

    Scott L. Schroeder, Marquette 1988, practices law in Janesville.

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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,; (800) 248-3248.

    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) 285-2221.

    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 Protective Orders.

    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 discovery.

    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 law.

    Nicholas C. Zales, Marquette 1989, is a civil litigator and appellate lawyer in Milwaukee.

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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.

    Laura O'Flanagan, Hamline 1997, is a tribal attorney with the Ho-Chunk Nation Department of Justice. She has worked on environmental and Indian law since her graduation from law school.

    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 rulings vary.

    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 unreliable.

    "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 heed.

    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,

    Publications and videos available for review

    • Globalization and Its Enemies, by Daniel Cohen (Cambridge, MA: MIT Press, 2006). 256 pgs.

    • Guide to Marriage, Divorce & Families: Everything You Need to Know About the Law and Marriage, Domestic Partnerships, and Child Custody & Support, edited by Robert A. Stein (Chicago, IL: ABA, 2006). 240 pgs.

    • Guide to Winning in Small Claims Court, by Jeffrey A. Isaac (San Diego, CA: The Lawyer in Blue Jeans Group, 2006). 65 pgs.

    • Judge for Yourself: Clarity, Choice, and Action in Your Legal Career, by Miriam Bamberger Grogan & Heather Bradley (Chicago, IL: ABA, 2006). 100 pgs.

    • Just Silences: The Limits and Possibilities of Modern Law, by Marianne Constable (Princeton, NJ: Princeton Univ. Press, 2006). 232 pgs.

    • 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.

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