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    Wisconsin Lawyer
    July 02, 2010

    Book Reviews

    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 7, July 2010

    The 10 Commandments of Baseball  

    By J.D. Thorne (Crystal Lake, IL: Sporting Chance Press, 2009). 186 pgs. $20. Order,

    Reviewed by David P. Renovitch 

    The thought of applying the lessons of baseball to the practice of law may not necessarily occur to the average practitioner, but J.D. Thorne does a good job of doing just that. My son is actively involved in youth sports, and I hear coaches instruct the players all the time that what they learn in practice and on the field will carry over to life in general. While this may be intended only as quick motivation, it is nonetheless correct.

    Thorne came up with his 10 commandments by drawing on a variety of historical baseball figures. Some of his commandments are general enough that the analogies are fairly straightforward. For example, the first two commandments (“Nobody ever became a ballplayer by walking after a ball,” and “You will never become a .300 hitter unless you take the bat off of your shoulder”) are essentially lessons in patience, practice, and hard work.

    The third commandment (“An outfielder who throws back of a runner is locking the barn after the horse is stolen”) is not quite as obvious. In addition to being fairly clever, this commandment requires a certain understanding of a basic rule of baseball. If you throw behind a runner, you’re letting her do exactly what she wants to do: advance. How many times do we as lawyers feel like we are playing catch-up or running to stand still? A key to success (in baseball, law, or life) is to anticipate, be prepared, and be wise to where the action is heading. Wayne Gretzeky had a similar explanation for his success: he didn’t go to the puck but rather to where the puck was heading.

    Another commandment that I thought quite insightful and interesting is the sixth (“Do not alibi on bad hops; anybody can field the good ones”). Maybe it’s because I live in St. Louis, where everyone was buzzing after Matt Holliday dropped what appeared to be a fairly routine fly ball that would have ended the game and tied the Cardinals 1 – 1 with the Dodgers. Afterward, Holliday said he lost the ball in the lights. That may be true. But there was a sense that most fans would have preferred him to say that he messed up. Sometimes admitting our mistakes takes the wind out of our critics.

    This book is a very fun and pleasant read for anyone, baseball fan or not.  

    David Renovitch, U.W. 2001, practices in St. Louis, Mo., where he is a solo practitioner and short-sale negotiator. He also is a die-hard Cubs fan.

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    Collaborative Divorce Handbook: Helping Families Without Going to Court

    By Forrest S. Mosten (San Francisco: Jossey-Bass, 2009). 265 pgs. $70. Order,

    Reviewed by Andy Mergendahl 

    Most people are familiar with the rise of alternative dispute resolution (ADR) and with the trauma caused by divorce. So why are so many divorces still litigated? This book doesn’t answer that question, but if you practice family law and haven’t at least incorporated ADR into your practice, this book might convince you to do so and will provide you with a guide. Despite the book’s title, Mosten discusses mediation and other ADR forms as well.

    The book’s main subject is collaborative law, meaning both spouses are represented by counsel but all four persons (spouses and attorneys) sign a “will-not-litigate” agreement and then try to negotiate a settlement. If negotiations fail, the spouses have to find new lawyers. Other professionals, like therapists, social workers, financial planners, and clergy, can assist with negotiations and are also in the book’s target audience. Mosten admits that the collaborative law approach is realistically only available to prosperous couples, although it is less expensive than litigating.

    Mosten strives to convince the family law litigator that she should incorporate ADR into her practice, or, better yet, give up litigation entirely and use only ADR in divorce cases. The testimonials sprinkled throughout, from lawyers who have quit litigating divorces, depict ADR and collaborative divorce in particular as paths to a practice that will be personally and financially rewarding. There is an almost religious quality to some of these testimonials. Having spent time as a judicial law clerk in family court in Minnesota, I am not surprised that lawyers who stop litigating family cases are likely to become much happier people. Happy lawyers generally better serve their clients’ interests.

    This, like many ADR books, may at times bring to mind (Senator) Al Franken’s old Saturday Night Live character, Stuart Smalley, and his “daily affirmations.” But the book is also full of practical advice, including a helpful discussion of potential ethical traps that collaborative law practice can create.

    Not strictly a guide to collaborative divorce, the book also serves well as an introduction to, and strong argument for, ADR in the family-court setting. Stressed-out divorce lawyers should read it, for their own benefit and for their clients’ benefit as well.

    Andy Mergendahl, Hamline 2007, is a solo practitioner in Hudson. He is licensed in Wisconsin and Minnesota.

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    Protecting Court: A Practitioner’s Guide to Court Security

    By Lt. Jimmie H. Barrett, Jr. (Minneapolis: Mill City Press, 2009). 137 pgs. $56.95. Order,

    Reviewed by Jason Hanson. 

    Protecting Court: A Practitioner’s Guide to Court Security, although written more for court-security planners and professionals than for judges or lawyers, is a good overview of the security issues faced by courts. The book describes security breaches that have resulted in serious injuries and deaths to court personnel and litigants and then provides several practical solutions for preventing or responding to similar occurrences.

    Some of the suggested solutions, such as duress alarms, x-ray machines, visible cameras, court-security assessments, and court-security committees, are widely used. Other suggestions, such as that “civil courts need [at least] one court security officer,” are common sense, although not yet commonplace in all areas of the state (including in the reviewer’s county). This is so despite SCR 70.39(5)(a), which provides that “[t]here shall be no fewer than 2 properly trained, sworn officers acting as court security officers in each courtroom and each court commissioner hearing room when criminal, divorce, child custody and other family cases are before the court or when domestic abuse, harassment and child abuse injunction hearings are taking place.” In a period of shrinking government budgets, some government officials have even suggested removing some of the crucial safeguards, such as weapons-screening stations, although these are also suggested by SCR 70.39. As an aside, SCR chapter 70 is a treasure trove of best practices on security in court facilities – some of the observations in the book confirm that Wisconsin is a leader in setting standards in this area, even if those standards are not always met.

    The book also serves as a good primer for court-security officers on courtroom tactics, such as where to position themselves in relation to other people and what behaviors might suggest an impending disturbance or escape attempt. One section contains case law concerning the presence and placement of law enforcement officers in the courtroom, the use of restraint devices, and other techniques commonly used to preserve security in criminal proceedings. Of course, a Wisconsin practitioner would want to research Wisconsin precedent and check for more updated federal references, but the author provides a reasonable starting point for legal research on these points.

    Although no book by itself can make a courthouse safer, this book gives enough practical suggestions that it is definitely worth reading. Perhaps more important, the author’s enthusiasm and the numerous examples about courthouse violence make the book a good conversation starter. After the conversation is started, people involved with court security can use the resources described in the book to help develop local solutions. For these reasons, and by calling attention to a life-or-death issue too often dealt with reactively rather than proactively, the book is valuable and should be consulted by court-security professionals.

    Jason Hanson, U.W. 1998, presides over family, small-claims, criminal, traffic, ordinance, and mental health cases as a Dane County circuit court commissioner.

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    Partner Departures and Lateral Moves: A Legal and Ethical Guide

    By Geri S. Krauss (Chicago: ABA Law Practice Management Section, 2009). 110 pgs. $69.95. Order, (800) 285-2221. 

    Reviewed by Frederic W. Knaak 

    To paraphrase the Chinese curse, we lawyers now live in “interesting times.”

    The “gentlemanly” partnerships and supposedly genteel qualities of practicing law are now just memories. More than ever, our profession is focused on hard business realities of performance and competition, while still trying to maintain the professionalism that is supposed to define us. Long-term unions between lawyers and their firms increasingly seem to be the exception to a new rule of mobility, according to which careers typically span multiple firms and employers.

    In these “interesting” new times, law partnership specialist and lawyer Geri Krauss and the ABA Law Practice Management Section have produced an up-to-date and very timely book, Partner Departures and Lateral Moves: A Legal and Ethical Guide.

    Like other books in the ABA Law Practice Management series, this relatively short book is designed to give the reader an overview of the law and reference resources for further work or research, if needed

    Oddly, as Krauss herself notes in the introduction, this is an area in which lawyers often get ensnared by failing to pay attention to the special rules that apply in the area of business law, partnerships in particular. Our professional ethics, as she notes, create potentially very sticky issues in areas such as fiduciary duties to partners and clients when a lawyer moves his or her practice. Often lawyers seek advice or research too late in the process to avoid some nasty consequences. At the very least, a lawyer considering such a move should read this book.

    Krauss examines the issues related to lateral moves from the perspective of both the individual lawyer who may be contemplating a move and the law firm he or she is planning to leave or go to. Underlying the entire issue, of course, is the client’s paramount need and right to choose counsel and the relationship of the lawyer or practice group to the client. The do’s and don’ts of notice and client communication during the process are looked at with care.

    Of particular value are the chapter related to acquisition of a group of laterals and the chapter on the law of due diligence. The final chapter, on claims relating to partner departures and lateral hiring, is as good a summary of the litigation in this field as can be found anywhere and can lead a researcher to other resources and cases.

    This book is a good resource for anyone looking to hire a lawyer or group of lawyers and for individuals planning to make a move.

    Lawyers who are contemplating moving their practices, as well as partners considering expanding their firms by adding lateral hires, whether of individuals or of entire practice groups, would do very well to delve into this relatively short book for some of the do’s and don’ts as well as its well-researched notes and bibliography.

    Frederic W. “Fritz” Knaak, Minnesota 1978, is with Knaak & Kryzer P.A., St. Paul, Minn.    

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    The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases

    By Margaret S. Price (Chicago, IL: ABA Family Law Section, 2009). 357 pgs. w/CD-ROM. $99.95 Order,

    Reviewed by Barry J. Boline. 

    In the introduction to The Special Needs Child in Divorce, a Practical Guide to Evaluating and Handling Cases, Margaret Price notes that the American legal system is “not set up to adequately address the unique needs inherent in cases involving children with special needs.” Price’s intent is to provide a guide to assist attorneys in effectively handling divorce cases involving children with special needs. Unfortunately, her book ends up being a 200-plus page argument on what legislatures should do to change family law procedure in the United States.

    Price argues that because the risk posed to children with special needs is so great and because no state adequately takes into account the needs of these children in their statutes related to divorce, the federal government should develop sweeping family law legislation related to addressing the needs of special-needs children in divorce situations.

    The book does contain several forms, such as initial petitions for divorce, sample answers, sample parenting plans, financial disclosures, and the like, but the author includes them to show the weaknesses in these commonly used legal forms and so she can suggest changes that should be made in addressing cases involving parents of special-needs children. The book includes a cd-rom with electronic copies of Price’s forms, but I found most of them to be of little practical value because she juxtaposes the “non–special needs” forms with the “special needs” ones. The parenting-plan forms, however, are very good and certainly give food for thought on possible changes to the Wisconsin parenting-plan form in cases involving children with special needs.

    The best part of Price’s book is her comprehensive definition of special needs. She points out that children with such common ailments as asthma and allergies should be considered special-needs children. Given statistics cited by Price that divorce rates in families with special needs may be as high as 90 percent, all family law attorneys should be aware of the special considerations required in those cases.

    Although Price includes chapters on estate planning and the education of children with special needs and a good bibliography and list of resources for families with special-needs children, she falls short of her goal to develop a practical guide to evaluating and handling cases. This book is really a philosophical argument in favor of federal legislation.

    Barry J. Boline, Drake 1994, practices family law in Mequon and handles cases with children of special needs.

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    The View from the First Chair: What Every Trial Lawyer Really Needs to Know

    By Martin L. Grayson (Seattle, WA: LawyerAvenue Press, 2009). 176 pgs. $45. Order,

    Reviewed by Kate Thompson Wilkinson  

    Martin Grayson’s book is a quick read, full of practical information for litigators. It would be an ideal teaching text for a trial advocacy course or a valuable inclusion in a new-hire packet for novice lawyers.

    The book is divided into 20 short sections, each dealing with a practical aspect of the litigation process, from depositions and finding experts to thinking on your feet and handling relations with opposing counsel and with your clients. According to the author, the book is intended as a “crash course for litigators” and as a “virtual mentor.” He succeeds on both counts. In an era of sparse practical training for litigators and few opportunities to actually try cases, books like this can be an invaluable and important part of educating the next generation of trial lawyers.

    Aside from the valuable practical information, such as venturing to ask the “why” question during depositions, Grayson discusses important relational aspects of lawyering, such as communicating with clients. Although much of the information may seem obvious to some, it is precisely the kind of thing that nobody teaches you in law school and that most young lawyers fail to learn on the job. For example, Grayson dissects a sample status report sent to clients. He attempts to show the need to provide clients with concrete information and the importance of using plain language to communicate that information.

    The tone of the book is straightforward and engaging, enhanced with practice tips and memorable sidebars. While the author peppers the book with some war stories, they are used effectively to illustrate his larger points. The volume is a useful and valuable tool for new lawyers and a solid refresher for more experienced lawyers.

    Kate Wilkinson, U.W. 1998, is a litigation attorney in Eugene, Ore.

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    Tax Savvy for Small Business

    By Frederick W. Daily (Berkeley, CA: NOLO, 2009). 380 pgs. $39.99 (softcover). Order,

    Reviewed by Erik R. Guenther 

    Every solo practitioner should read this book.

    Tax Savvy for Small Business does not offer the secrets of tax shelters or details about skirting the law with off-shore bank accounts. Rather, it provides easy-to-understand advice about selecting a business entity and maximizing lawful tax deductions. For example, it clearly explains how to deduct vehicle expenses and travel expenses for business and how to depreciate long-term business assets.

    In addition, important topics for lawyers are included such as: record retention time frames, the pros and cons of incorporation and guidance for selecting the appropriate business entity, home-office deduction rules, and the use of fringe benefits (for retirement benefits, health benefits, education benefits, meals, travel and lodging, commuter transportation, and parking, and others) to minimize tax liability. The section detailing tax-advantaged retirement plans alone makes this book a valuable resource.

    The author also provides important information regarding reporting obligations to the IRS when receiving more than $10,000 in cash, traveler’s checks, money orders, or bank drafts from one individual or business. Accounting methods and means of obtaining the best tax advantages from business losses also are explained in a straightforward manner.

    When considering partnership with other attorneys, Tax Savvy also provides a step-by-step guide of items to consider when planning distributions and a primer on how to protect yourself with a payroll tax indemnification clause. The author also offers guidance regarding unequal distribution shares of profits or losses by the partnership and an explanation of capital accounting.

    For those who engage outside help, there is a section regarding whether workers ought to be classified as employees or independent contractors and details on record-keeping for employees. Tax Savvy also includes information on buying or selling a small business and what do to if audited.

    In short, this is a useful resource for all attorneys, but one that borders on essential for solo practitioners and small firm attorneys.

    Erik R. Guenther, U.W. 2002, practices criminal defense with Hurley, Burish & Stanton S.C., Madison, and represents individuals and business entities in Wisconsin courts and in federal courts nationwide. He also handles internal investigations for corporate clients.  

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