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    Vol. 79, No. 8  August 2006

    Book Reviews

    McElhaney's Trial Notebook, 4th Edition

    By James W. McElhaney (Chicago, IL: ABA Litigation Section, 2005). 792 pgs. $64.95. Order, (800) 285-2221.

    Reviewed by Jason J. Hanson

    This is the book version of the Trial Notebook series in the ABA's Litigation magazine. Readers familiar with that series will recognize the setting - each chapter begins with a frustrated lawyer meeting with "Angus," the expert litigator, to discuss a trial advocacy or evidence problem, while the author listens in and pens a piece based on Angus's advice. Angus usually provides a list of suggestions, then the author expands on the suggestions by going through the pertinent law and some examples.

    The book has a lot of great information and advice. For many evidentiary rules, it provides a historical context, the appropriate provisions of the Federal Rules of Evidence, and examples of variations on the rule in particular states. It also provides examples of effective uses for each rule, including some that are not so obvious. Advice on effective advocacy at various stages of litigation is found throughout the book, sometimes as an individual chapter devoted to a particular topic (for instance, "Final Argument"), other times within a discussion of a particular rule of evidence. This overlapping approach means that it is difficult to miss a point, because it is raised wherever appropriate. However, reading the book from beginning to end can be tedious, because the overlapping approach necessarily raises the same examples several times.

    If you like Angus's advice in the Trial Notebook series, and the conversational approach to such topics, you'll like this book. If you need a refresher on cross-examination skills, for instance, reading the six chapters on cross-examination will help bring you back up to speed. For that sort of situation, the book is a valuable resource.

    Jason J. Hanson, U.W. 1998, is a Dane County assistant district attorney. He previously served as Deputy District Attorney and as an administrative law judge with the Wisconsin Division of Hearings and Appeals.

    David Ball on Damages - The Essential Update: A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases

    By David Ball, Ph.D. (Notre Dame, IN: NITA, 2005). 400 pgs. $85. Order, (800) 225-6482.

    Reviewed by John A. Kornak

    There are few books that are essential for attorneys to possess. This is one of them. Not all attorneys will benefit from this book. In fact, it has a relatively small target audience - plaintiff's personal injury lawyers, although the author invites defense attorneys to eavesdrop. For those of us who maintain a plaintiff's personal injury practice, this book is a must-have.

    David Ball is a nationally recognized jury consultant, with expertise in the area of damages. This book is an update from the first edition of David Ball on Damages. The first edition was worth reading. This second edition is worth reading, digesting, and keeping handy for frequent review. It is that good.

    The basic tenet of this book is found right at the beginning. Just after the introduction is a sign, meant to be cut out and pasted where the trial lawyer can view it every day. It says: "The only goal of trial is to get money for your client." Truer words (at least in the litigation context) have never been written.

    Those of us who try personal injury cases recognize that damages are sometimes an afterthought. At times we are so caught up in proving negligence, that we might sacrifice the most important part of our case. This book focuses the trial attorney on how to make damages the central theme in all phases of each trial.

    The heart of the book, chapters five through nine, deals with effectively handling damages from voir dire through closing argument. Particularly helpful is the "preponderance technique" that Ball introduces in chapter five. Getting jurors to understand that the preponderance standard applies to damages as much as it does to negligence is an important concept for trial lawyers to grasp. This book offers tips on how to get this concept through to jurors early and often.

    There is a chapter dealing with juror motivations to give monetary compensation and another dealing with their motivations for not giving compensation. Both chapters are chock full of important information. Both chapters need to be read and reread by anyone trying a personal injury case.

    Not to say that this book is perfect. There are certain suggestions that the reader should use only with caution. For instance, Ball suggests an "aggressive" argument on closing to make the defendant face responsibility. His proposed argument is:

    "If you decide on less (damages than suggested), then after you've announced your verdict, when you are walking through the parking lot to your car to go home, you will see that defendant and those lawyers congratulating each other for having permanently escaped responsibility."

    An effective argument, maybe, but one that will likely draw an objection and be sustained. The only criticism one can level at Ball is that sometimes his suggestions are more consultant oriented than law oriented.

    Despite the fact that some of Ball's suggestions must be taken with a grain of salt, this is an excellent book on an issue of great importance to plaintiff's personal injury lawyers. I highly recommend it.

    John A. Kornak, Valparaiso 1986, is in private practice in McHenry, Ill., at the Law Offices of Thomas J. Popovich P.C., practicing in catastrophic personal injury, wrongful death, traumatic brain injury, and medical negligence. He is a former criminal prosecutor and is licensed to practice in Illinois and Wisconsin.

    lowering the bar Lowering the Bar: Lawyer Jokes & Legal Culture

    By Marc Galanter (Madison, WI: Wisconsin Press, 2005). 430 pgs. $45. Order, www.wisc.edu/wisconsinpress.

    Reviewed by Tom Shriner

    You've got this problem, see? You love lawyer jokes. You've collected them for years. You'd really like to publish your collection.

    But you've got another problem. You're a distinguished law professor, and writing a joke book just won't do. Infra dig. and all that. Besides, it's hard to get an NSF grant to write a joke book.

    So you spend a couple of years, find "patterns in the jokes" (law professors are good at that; see generations of casebooks classifying judges' jokes), wrap the package in sociological claptrap, and, voila!, you get something like Marc Galanter's Lowering the Bar: Lawyer Jokes & Legal Culture.

    I'm sure that's not how this book came about. Galanter's previous writings (he cites 17 as authorities for this one) prove that he's serious about this stuff. He has written about changes in lawyer demographics, the transformation of our role, the blame assigned us for society's ills. And now, more of the same, as seen through the lens of a learned exegesis of lawyer jokes.

    But I wish Galanter weren't so deadly serious. Back in pre-Miller v. California days, when such things were necessary, I always chuckled at pornographers' efforts to immunize their smut with a smidgen of "redeeming social value." Still, a little of this sort of thing goes a long way. No one liked it when Mom made you eat spinach to get dessert.

    So, too, here. I wish I didn't have to work my way through the jargon ("The persistence of jokes is a useful indicator of enduring patterns of sentiment because jokes are labile social productions ... neither controlled nor supported by organizational sanctions or authoritative text") to get to the jokes. Many of them are terrific. Have you heard the one about the corporate lawyer and Mother Teresa?

    Tom Shriner, Indiana-Bloomington 1972, is a partner in Foley & Lardner LLP and practices in Milwaukee.

    Mercy on Trial: What it Means to Stop an Execution

    By Austin Sarat (Princeton, NJ: Princeton Univ. Press, 2005). 352 pgs. $29.95. Order, (609) 258-5714

    Reviewed by Daniel P. Patrykus

    Ask a fellow lawyer what the connection is between law school and the practice of law. A chuckle is the likely response. We lawyers did, however, learn a few things in law school. We learned the importance of the rule of law. We were taught that awesome governmental power must be strictly regulated.

    Austin Sarat, in the very compelling and readable Mercy on Trial: What It Means to Stop an Execution, argues that those people who are empowered to spare life in capital cases are frighteningly unburdened by such democratic constraints. No rules govern state governors in the exercise of clemency. They spare whom they want for whatever reason they want. Sarat calls this unregulated power "lawful lawlessness" and justifiably so. We don't grant unchecked power to government in the most mundane of matters, yet do so when life or death is at issue.

    Mercy on Trial attacks execution from an unlikely angle. Sarat condemns the single mechanism that he says pretends to afford merciful reprieve to the condemned - clemency. Because mercy must address individual redemption, our current system does not qualify as merciful. His point is that instances of clemency, which are increasingly rare, almost uniformly involve claims of innocence or other systemic flaws. As a result, true mercy no longer exists in the reprieve process. And, he says, we are much the worse for it.

    Sarat deftly deconstructs recent examples of clemency to illustrate the illusion of mercy in the clemency process. He includes a particularly scathing portrait of then Illinois Gov. George Ryan's decidedly unmerciful motives for commuting all 167 death row sentences in 2003.

    In the end, Sarat concludes that the ideal of mercy is worth the risk of lawless application. He quotes Alexander Hamilton, who noted that without mercy, "justice would wear a countenance too sanguinary and cruel." Well said.

    Daniel P. Patrykus, Marquette 1984, is a partner in Keberle & Patrykus LLP, West Bend. He served as an assistant state public defender in the Milwaukee Trial Office from 1984 to 1992.

    Law and Criminal Justice: Emerging Issues in the Twenty-First Century

    By Christopher E. Smith, Madhavi McCall, & Cynthia Perez McCluskey (New York, NY: Peter Lang Publishing Group, 2005). 184 pgs. $29.95. Order, (212) 647-7700.

    Reviewed by Christopher L. Kuehn

    The authors acknowledge that they cannot deal with all of the possible legal and criminal justice issues that will emerge in the 21st century; instead, they have tried to focus on six core areas of concern. The book focuses on the U.S. Supreme Court, technology and individual rights, corrections, capital punishment, Latinos and the law, and the war on terrorism. The authors focus a good portion of the book on substantiating their theories by describing in great detail the method by which they arrived at their conclusions.

    The first chapter discusses how the Rehnquist Court dealt with criminal justice issues and juxtaposes those decisions against the Court's decisions in non-criminal justice cases. While I found this chapter somewhat insightful, it has become less valuable to practitioners due to recent changes on the Court.

    The technology and individual rights section gives a cursory review of DNA technology and other identification techniques and a discussion of tasers. The corrections section tackled many subissues such as a growing prison population since the implementation of three strikes laws, AIDS in prisons, and mentally ill prisoners. I would have appreciated a more thorough discussion on geriatric prisoners and the costs associated with them. The authors predict in this and other chapters that the lack of expenditures for corrections, and issues of religious-based programs that are imposed on prisons by federal legislation, will cause future litigation. The section on capital punishment was interesting, but not pertinent to Wisconsin practitioners.

    The chapter on Latinos and the law focused on a variety of issues in Latino society. The authors demonstrate that society will grapple with issues related to the growing Latino population in the United States, including language-based discrimination. The authors also provided interesting discussions on immigration and language barriers. In the final chapter, the authors dissect the "War on Terror" cases of 2004, specifically Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla, which answered few questions on the power of the executive branch in the war on terrorism.

    The authors provide some insight on the various issues, but they provide little information of practical use for lawyers.

    Christopher L. Kuehn, Thomas Cooley 2001 cum laude, operates the Law Offices of Christopher L. Kuehn LLC, Elkhorn, focusing on criminal defense.

    dummies book coverSarbanes-Oxley for Dummies

    By Jill Gilbert Welytok (Hoboken, NJ: John Wiley & Sons, For Dummies, 2006). 384 pgs., $21.99. Order, www.dummies.com.

    Reviewed by Richard A. Kranitz

    The disclosure of accounting irregularities at Enron, Worldcom, and other companies led to one of the most significant reforms of securities laws since adoption of the Securities Act of 1933, the Sarbanes-Oxley law (SOX for short). While SOX reformed reporting and governance standards of public companies, and set strict standards for listed companies, it also may have a significant impact on governance practices generally, including for private companies and nonprofit organizations. Because of the law's impact on officers, directors, and legal counsel, business attorneys need to become familiar with its general requirements.

    Sarbanes-Oxley for Dummies provides a lively, entertaining, and comprehensive review of SOX and practical strategies for compliance. It offers a readable introduction for lawyers in a book that they also may recommend to their clients.

    In 22 chapters, Sarbanes-Oxley for Dummies covers all major requirements of the new law. After providing historical context to understand the law's purpose, the author reviews each key provision of SOX. Implementing SOX-compatible controls has been expensive. As a consequence, the SEC has delayed applying some provisions to smaller public companies. To assist readers in identifying cost-effective solutions, the book contains several chapters discussing practical implementation strategies, including a survey of available software developed to streamline SOX-required controls. It also offers practical suggestions for the operation of boards and their audit committees and suggestions on steps to take to avoid litigation or enforcement problems.

    SOX has special significance for lawyers. It alters a fundamental duty toward corporate clients, by imposing a duty to report substantial noncompliance first to management, and ultimately to regulators. Lawyers who represent public companies must become familiar with this requirement, but all corporate lawyers would be advised to know of it.

    Sarbanes-Oxley for Dummies provides a valuable introduction to this significant development in the field of corporate governance.

    Richard A Kranitz, U.W. 1969, Order of the Coif, is a member of Kranitz & Philipp, Grafton. He focuses on business law.

    Hero Island

    By Stephen B. Wiley (Largo, FL: Oasis Publishers, 2005). 88 pgs. $12.95. Order, www.heroisland.com.

    Reviewed by John Nicholas Schweitzer

    Stephen B. Wiley is an attorney. He also is a poet. Being an attorney requires education, training, and certification. Being a poet is a state of mind.

    Many attorneys are justifiably proud of the mastery of words that allows them to manipulate language for a purpose, which may be either to convey meaning or to avoid conveying meaning. Some attorneys yearn to use their skills in other ways: to be expressive, to be imaginative, to be creative, even to turn a phrase for its own sake. A few attorneys long to turn their mastery of the craft of writing into art. Wiley does that.

    Not every "poem" in his book is poetry. A few are mere exercises of craft, in which the alliteration or the imagery or the expression of an idea appears to be done for its own sake. More often than not, though, Wiley succeeds in creating poetry, and there is much poetry in this slim volume.

    Hero Island consists of 88 pages and 61 poems, with lots of white space and blank pages, wasteful, luxurious, and restful. The shortest poem contains six lines, and the longest 37. The poetry is written in free verse, without rhyme or regular meter. Capitalization and punctuation often are ignored, and incomplete sentences abound. One poem, "On Milosz's Swirling Vortex of a Destiny," is cryptic and obscure; two others, "The Pantheon" and "Einstein Sat Quietly," seem out of place with the others; but the rest create a pleasantly patterned quilt of memories and images, all of which are understandable without effort. There are no poems about the law.

    As with any good literary work, the book has multiple virtues, and different poems will resonate with different readers. The details of going north to a cabin, in poems like "Northbound," "Opening Up," "Sitting in the Woods," and "Island Air," will be familiar to many Wisconsin readers even though Wiley's compass points to Vermont. The nature imagery, especially in the section titled "End of Summer," reminds us of things we may once have seen in perfect focus but have since forgotten. The reminiscences or mini-stories engage the imagination and create real characters and situations. In poems like "Hay Harvest" and "Crosscut Dancing," the esoteric details of simple tasks illuminate the craft of farmwork or lumbering.

    Wiley's free verse is a good example of how words can become poetry without rhyme or meter, by concisely presenting nuggets of observation or even wisdom, by offering combinations of words that are pleasant to speak or read simply for their effect on the ear, and by describing the world in ways that celebrate the mundane while transforming it into something bigger, something mythical or spiritual. Several poems end with a twist of unexpected extra meaning. Wiley has a soft touch and makes no overt attempt at profundity, but his poems touch on it. There is no single message, but the last few poems say, "This is it. Just be. Tend your garden well."

    John Nicholas Schweitzer, U.W. 1985, is an attorney with the Wisconsin Department of Regulation and Licensing and a playwright.

    Business and Commercial Litigation in Federal Courts, 2nd ed.

    By Robert L. Haig, editor-in-chief and 199 authors (Eagan, MN: WestThomson, 2005). 8 vols. CD-ROM forms. $960. Order, (800) 344-5009, west.thomson.com.

    Reviewed by Troy D. Thompson

    In an impressive undertaking sponsored by the American Bar Association's Litigation Section, the 199 authors of this eight-volume, nearly 9,000-page set have created an extensive resource for attorneys practicing in federal courts. The hard bound set includes sections on substantive law, practice and procedure, tactics and techniques, checklists, sample pleadings, jury instructions, and more. It will be useful to both seasoned litigators and attorneys with only limited experience before the federal bar.

    I had the pleasure of reviewing the first edition of this set for the June 1999 Wisconsin Lawyer. Since that time, I frequently have used the book in connection with federal and state court litigation, and otherwise. The second edition appears to be even more useful.

    The second edition carries forward the 80 chapters in the first edition and expands on them. The second edition also adds 16 new chapters: Case Evaluation, Discovery of Electronic Information, Litigation Avoidance and Prevention, Techniques for Expediting and Streamlining Litigation, Litigation Technology, Litigation Management by Law Firms, Litigation Management by Corporations, Civility, Director and Officer Liability, Mergers and Acquisitions, Broker-Dealer Arbitration, Partnerships, Commercial Defamation and Disparagement, Commercial Real Estate, Government Entity Litigation, and E-Commerce.

    This publication lives up to its original foreword, which promised "a goldmine of insights and advice about the dynamics of commercial litigation and how to apply expert lawyering skills and techniques to the specific case at hand." Its authors have improved upon what already was a thorough, well-organized, and very relevant text that will continue to serve as an important reference tool. Much of its subject matter is equally applicable to many actions pending in state court. I highly recommend this publication to individuals of all experience and skill levels.

    Troy D. Thompson, Marquette 1998, is a partner with Axley Brynelson LLP, Madison. His practice focuses on management-side labor, employment, and business litigation matters.

    Obtaining discovery AbroadObtaining Discovery Abroad, 2nd ed.

    By Antitrust Law Section (Chicago, IL: ABA Antitrust Law Section, 2005). 361 pgs. $124. Order, (800) 285-2221.

    Reviewed by Martin A. Blumenthal

    This book has particular meaning to me because I recently filed a suit in the Northern District of Illinois against a German corporation and a Polish corporation. I therefore read this very practical manual with my own case in mind.

    We American lawyers take for granted the liberal discovery process in the United States as described in chapter I and under the Federal Rules of Civil Procedure as discussed in chapter II.

    Many foreign countries under civil law regard the common law practice with disdain and suspicion. Some countries will not permit American-style discovery of their nationals even with the consent of the deponent.

    However, countries in Europe, the Middle East, and South America and even China have signed the Hague Evidence Convention, which provides standards for discovery in those countries when a foreign civil lawsuit is involved. The Convention is not applied uniformly; several countries have exceptions to or different interpretations of the Convention's terms.

    The good news is, however, that Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 495 (1947), upheld the application of the Federal Rules of Civil Procedure's discovery rules with respect to foreign parties within the court's personal jurisdiction. The court also cautioned against any abuses and admonished the district courts to extend due respect to sovereign interests.

    Obtaining Discovery Abroad contains several chapters that are devoted to the application of the Convention to particular countries. (Conveniently for me, Germany is one.) From an academic standpoint, I thought it interesting to see how foreign courts treat discovery and the very different role (active) that those judges take in the process.

    There are a few appendices with helpful information on central authorities in the foreign countries plus a bibliography and the text of the Hague Convention including reservations and declarations.

    Martin A. Blumenthal, Chicao-Kent 1981, is an attorney and CPA in Northfield, Ill.

    Medical and Legal Aspects of Neurology

    By Jeffrey Wishik, M.D., J.D. (Tucson, AZ: Lawyers & Judges Publishing Co., 2005). 346 pgs. $79. Order, (800) 209-7109.

    Reviewed by John A. Kornak

    Anyone who practices personal injury litigation will, eventually, become involved in cases in which neurological injuries are alleged. It is important for practitioners on both sides of the litigation fence to familiarize themselves with the science behind these injuries. An accurate, even-handed, and understandable source of information is essential to investigating these mostly complex issues. Medical and Legal Aspects of Neurology is accurate, even-handed, and understandable. It is a good source of information and a good starting point for a lawyer to investigate the intricacies of neurologic injuries.

    There are 21 chapters in this book. Among the issues addressed are diagnostic testing, chronic pain, somatization, symptom magnification, traumatic brain injury, seizures, headaches, movement disorders, spine and nerve root disorders, and the brain and higher cortical functions. In short, a lot of information is crammed into this rather small book.

    No book of this size can adequately address, in detail, the myriad issues that are tackled here. For instance, the author mentions in the chapter on traumatic brain injuries (TBIs) that "the presence of the [epsilon] 4 allele of the apoliprotien E gene is associated with poorer outcome after brain injury." To support this proposition, he cites to an article published in 1999 in Neurology. The article cited does stand for the proposition stated, but attorneys who litigate TBI cases know that this is a very controversial area of medicine.

    The author acknowledges the inherent impossibility of covering every detail of every aspect of neurology in a one-volume work and aims to make this book accessible to lawyers by highlighting topics likely to have legal significance. The burden of digging deeper into the medicine is up to the reader. After receiving this book to review, I found myself referring to it from time to time to refresh my recollection on certain issues. Perhaps that is the best indication of the value of this book.

    John A Kornak, Valparaiso 1986, is in private practice in McHenry, Ill., at the Law Offices of Thomas J. Popovich P.C. and is licensed to practice in Illinois and Wisconsin. He limits his practice to plaintiff-side catastrophic personal injury, wrongful death, traumatic brain injury, and medical negligence cases. He previously was a criminal prosecutor.

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