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    Wisconsin Lawyer
    June 01, 2011

    Book Reviews

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 6, June 2011

    Virtual Law Practice: How to Deliver Legal Services Online

    By Stephanie L. Kimbro (Chicago, IL: ABA Law Practice Management Section, 2010). 212 pgs. $79.95, $67.95 with State Bar 15% discount. Order

    Reviewed by John S. Swimmer

    Stephanie Kimbro believes that the devil is in the details. She does an excellent job of setting forth the details that you need to consider to deliver legal services online to your clients and to set up, operate, and market a virtual practice. She makes a very persuasive case that the cost savings realized through a virtual practice will allow attorneys to provide more services to traditionally underserved clients and to expand revenue while having greater flexibility in serving clients’ needs.

    This book brings together a thorough list of resources to aid you in establishing a virtual practice. It is not so much a how-to book (although it does offer practical help in chapter four) as it is a case study of other attorneys who have ventured into the virtual realm.

    My favorite parts of the book are the case studies that discuss marketing, budgets, technology, and use of SaaS (software as a service) and present practical advice to help you set up a virtual practice. This book provides an excellent startup checklist and two sample virtual law office agreements for providing unbundled legal services online and services in conjunction with a physical office.

    The book is very well organized and a quick read. I strongly recommend buying this book, and I think most attorneys will find value in the author’s advice. She discusses structures and technology, such as best practices for website design, choosing technology, and marketing, that are applicable to any law practice, including bricks and mortar firms, as well as what I call hybrid practices: traditional practices that are early adopters of technology but perhaps are not virtual law practices. (The author defines a virtual law practice as a professional law practice that exists online through a secure portal and is accessible to both a client and a lawyer anywhere the parties access the Internet.)

    My only criticism is that this book lacked the client’s perspective. I wanted to know what clients think about virtual practice, and I thought it also would be helpful to provide an analysis of what practice areas would be best suited for a virtual practice. Perhaps when the second edition is released the author will include case studies from the client’s point of view. I would also like to see some additional forms and a sample business plan of a virtual law office.

    John Swimmer, U.W. 1998, is the owner of Swimmer Law Offices LLC, Milwaukee. His practice focuses on Indian law and civil litigation. He is a former chair of the State Bar Indian Law Section and a former member of the State Bar Board of Bar Examiners Review Committee.


    American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia

    By Joan Biskupic (New York, NY: Sarah Crichton Books, 2010). 434 pages. $16 (paperback). Order,

    Reviewed by Matthew M. Fernholz

    Appropriately, Joan Biskupic begins her biography of Supreme Court Justice Antonin Scalia by detailing his remarks at the 2008 Federalist Society Lawyers Convention, for the story of Scalia is inextricably linked with the rise of the conservative legal movement. “Maybe the original meaning of the Constitution is back. We’re not all back there yet, but maybe we’re on the way,” he told the audience. If that statement is true, Biskupic underscores that much of the credit (or blame) belongs to Scalia.

    The son of an Italian immigrant father and a first-generation Italian-American mother, Scalia grew up in Trenton, N.J., and Queens. As an only child with no cousins, he was the great hope of both his parents and his extended family. Biskupic details how the intelligence he inherited from his father and the charisma he picked up from his mother’s family were the twin engines that propelled Scalia’s academic and political success.

    Biskupic also covers Scalia’s Catholicism quite well. She makes clear that although Scalia does not consider himself a “Catholic judge,” his religion clearly has shaped who he is. Scalia attended Xavier High School, an all-boys Jesuit school. Biskupic convincingly argues that Xavier instilled a love of text and a respect for rules in the young Scalia.

    Scalia graduated from Georgetown University with a history degree and was class valedictorian. One incident in particular at Georgetown reinforced for Scalia the connection between Catholicism and his professional life. At an oral exam, Scalia was asked what he believed the most significant historical event was and thought, he recalled, “there’s no wrong answer to this … I don’t remember what I even answered, maybe the Battle of Waterloo, maybe the battle of the Solomon Islands … And [the chairman of the panel] shook his head sadly and said, ‘No, Mr. Scalia. The Incarnation, Mr. Scalia.’” The professor’s response “was the last lesson I learned at Georgetown: not to separate your religious life from your intellectual life. They’re not separate.” At commencement, Scalia implored his fellow graduates, “[i]f
    we will not be leaders of a real, a true, a Catholic intellectual life, no one will!”

    The first decade of Scalia’s legal career was nonpolitical: he worked as an associate at Jones Day for seven years before joining the University of Virginia School of Law. Scalia began his career in public service as general counsel to the Office of Telecommunications Policy. Three years later, at the height of Watergate, President Nixon appointed Scalia head of the Office of Legal Counsel (OLC), which provides legal advice to the President. According to Biskupic, the time Scalia spent at the OLC made him hostile to Congress’s attempts to encroach on executive prerogatives, a viewpoint that shaped his thinking on separation of powers.

    Biskupic shows how Scalia was both lucky and good in his path to becoming a Supreme Court Justice. He left the OLC in 1976, but Ronald Reagan’s victory in 1980 had Scalia itching to get back into government. He initially applied for the solicitor general position but lost out to another candidate. The Reagan administration then offered him a spot on the Seventh Circuit Court of Appeals, but he and his wife wanted to leave Chicago and so he declined the offer. In 1982, Scalia was confirmed as a judge on the D.C. Circuit Court of Appeals. In 1986, Reagan nominated then-Associate Justice William Rehnquist to fill the Chief Justice seat left vacant by Warren Burger’s retirement and Scalia to fill the Rehnquist seat. Scalia was chosen over Robert Bork, a fellow D.C. Circuit judge. In 1987, control of the Senate flipped from Republicans to Democrats, allowing Democrats to block the 1987 Bork nomination, while Scalia – who shared the same ideology as Bork – was confirmed unanimously.

    Biskupic organizes the chapters about Scalia’s time on the Supreme Court by subject matter. This structure works well, allowing readers to focus on what Scalia had to say about each issue rather than jumping from topic to topic.

    Biskupic successfully pulls the curtain back to help us understand the inner workings of a man who upended the conventional wisdom in the legal establishment and helped to create a new kind of judging. Readers who admire or disdain Scalia will learn much from this book, although it probably will only reinforce preexisting opinions. As far as judicial biographies go, American Original is worth the investment.

    Matthew M. Fernholz, Marquette 2010, is the law clerk to the Hon. Paul F. Reilly, Wisconsin Court of Appeals (District II).


    In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided

    By Walter R. Echo-Hawk (Golden, CO: Fulcrum Books, 2010). 576 pgs. $35. Order,

    Reviewed by Robert A. Yingst

    It is difficult to read In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided without feeling conflicted, especially if you are white. Nevertheless, whatever your ethnic heritage, you will be challenged if you read this book. I promise. Having been a white civil rights lawyer in what the author calls the “Courts of the Conqueror,” I found myself looking at Indian country in a way both enlightening and promising, in spite of being constantly reminded of what the author calls the “darker side of Indian law.”

    Attorney Walter R. Echo-Hawk presents lawyers, especially, with a challenging question: What if it is really true that the bundle of rights we have fought for through the 5th and 14th Amendments to the U.S. Constitution were never intended by the “founders” to be applied to Native Americans?

    Echo-Hawk singles out one case in particular that he thinks should be repudiated and rejected – Johnson v. M’Intosh. In 1955, the U.S. Supreme Court, relying on M’Intosh, took it as a given in Tee-Hit-Ton v. United States that “savage tribes of the continent” were deprived of their land for “trinkets” by the “conqueror’s will.”

    The author argues that Johnson v. M’Intosh will repeatedly cause wrongs unless it is overturned. It must be overruled in the same way that Plessy v. Ferguson met its demise in Brown v. Board of Education, when the U.S. Supreme Court rejected segregation, says Echo-Hawk.

    The author’s approach in describing how we got to this point is artful and interesting to read, although some readers will chafe as he takes them through some awful times and places to show us that past wrongs are not “water under the bridge.”

    The application of the First Amendment in Native American cases is one example he uses to argue that the U.S. Supreme Court does not really deal with Native American religion as religion. The Rehnquist court was “not up to this task,” he says, and urges that Lying v. Northwest Indian Cemetery Ass’n must be overturned. The high court failed to protect Indian holy places and produced a “cruelly surreal result” when it declared, in the words of dissenting Justice Brennan, that “government action that will virtually destroy a religion is nevertheless deemed not to ‘burden’ that religion.” Lying is still the law of the land.

    Echo-Hawk offers eight specific reforms as he calls for a new generation of “legal warriors” who will have the courage to “… row against the tide of prejudice, racism, dispossession, and oppression of vulnerable minorities.”

    Robert A. Yingst, Howard 1969, is a civil rights lawyer in Abrams, Wis.


    Abraham Lincoln, Esq.: The Legal Career of America’s Greatest President

    By Roger Billings & Frank J. Williams (eds.) (Lexington, KY: University Press of Kentucky, 2010). 263 pgs. $40. Order,

    Reviewed by Stacy A. Broman

    This collection of essays by leading Lincoln scholars explores the legal practice of one of this country’s most well-known attorneys. The authors quickly dispel the notion of Lincoln as a hapless lawyer who worked with his feet up on the couch while neglecting to study the law. Lincoln was a precedent-setting attorney who typically handled 200 cases a year and may have handled 5,000 during his career.

    The book is notable for the depth of experience and knowledge of the authors and the amount of in-depth research supporting the essays. The book is divided into three parts. Part one, “Evaluating Lincoln’s Career,” includes chapters by Carol Holzer, who served as cochair of the Lincoln Bicentennial Commission, and Mark E. Steiner and Brian Dirck, authors of books about Lincoln. Part two, “The Illinois Years,” includes chapters by John Lupton, director of history programs at the Illinois Supreme Court Historic Preservation Commission, and Christopher A. Schnell, who spent years working for the Lincoln Legal Papers and its successor project, The Papers of Abraham Lincoln. And part three, “The Washington Years,” was written by Lincoln scholars Mackubin Thomas Owens and William D. Pederson.

    I found most interesting part two, which addresses Lincoln’s practice as an Illinois attorney. Several authors wrote about Lincoln’s experience as a debtor/creditor lawyer and his early advocacy of mediation. I most enjoyed the chapter “Lincoln’s Legal Ethics,” which addresses a world that predated the Model Rules of Professional Conduct. Correspondence between Lincoln and Judge David Davis is reprinted, as are several of Lincoln’s short and precise legal opinions. In one of Lincoln’s letters, Lincoln resolved a conflict-of-interest question, assuring that he would not take a case against his railroad client “as I have sold myself out to you.” Several of Lincoln’s letters to clients are reprinted, including ones apologizing for Lincoln’s neglect of business while campaigning and for the loss of documents in his stovepipe hat.

    There is some duplicative material among the essays. The book contains several photographs of Lincoln and drawings of his office. Lincoln must not have been adverse to advertising: a copy of his firm’s newspaper advertisement appears in the book.

    Abraham Lincoln, Esq. is extremely well-researched and informative. If you are looking for insights into Lincoln’s legal career, this short book provides a wealth of information. The endnotes provide an excellent bibliography for those yearning to learn more about the life of this great lawyer.

    Stacy A. Broman, Hamline 1988, is a partner with Meagher & Geer PLLP, Minneapolis. Her practice includes complex commercial litigation, emphasizing issues involving insurance coverage and the insurance industry. She is an avid reader.

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