Wisconsin Lawyer
Vol. 80, No. 2, February 2007
Waiver of the Attorney-Client Privilege: A Balanced Approach
By the Hon. Dick Thornburgh (Washington, D.C.: Washington Legal Foundation, 2006). Monograph, 33 pgs. $10. Order, (202) 588-0302.
Reviewed by Martin A. Blumenthal
We lawyers are aware of the attorney-client privilege from the first day of law school. Clients might never reveal their innermost thoughts and fears if those revelations could become public knowledge the next day. Lawyers could never give their best advice if they were not told all of the facts (not that clients always do tell all the facts).
What about the client that is not a person? A corporation has the same attorney-client privilege. (U.S. v. Louisville & Nashville R.R., 236 U.S. 318 (1915).)
Criminal prosecutions of corporations have been in the news recently, for example, prosecutions of Arthur Anderson and Enron. Frequently, the government (the U.S. Attorney or the Securities and Exchange Commission (SEC)) will request that the corporation under investigation waive its attorney-client privilege. Why would a corporation want to do that? Under the Federal Sentencing Guidelines, in the comments to § 8C2.5, the SEC holds out the carrot of leniency when a corporation has identified, investigated, and disclosed possible violations of the law. This comment was due to be removed on Nov. 1, 2006.
There also is a duty under the Sarbanes-Oxley Act for a public company to undertake an investigation of possible violations of certain state or federal laws. How frank will corporate employees be if there is no attorney-client privilege or if the privilege could be waived?
The Hon. Dick Thornburgh, former U.S. Attorney General, addresses these issues in detail. He carefully weighs the intent and purpose of the attorney-client privilege and the consequences of its voluntary waiver. (Remember what happened to Arthur Anderson when it waived its privilege.) He also suggests some practical steps to take when faced with the prospect of criminal prosecution with a request for waiver of the privilege from the government. The book is heavily footnoted to facilitate a practitioner's further research.
The issues are important not only for trial counsel but also for corporate, in-house counsel because the latter may be in charge of internal investigations into wrongdoing by the corporation.
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Trial Advocacy Basics
By Dent Gitchel & Molly Townes O'Brien (Louisville, CO: NITA, 2006). 276 pgs. $65. Order, (877) 648-2632.
Reviewed by Paul R. Lokken
This book delivers exactly what its title promises: trial advocacy basics. Written for novice litigators, this book will successfully guide inexperienced lawyers through the maze of the jury trial process.
Divided into 12 chapters, the book begins with an overview of jury trial procedure. The succeeding chapters move in a chronological progression from "Lawyers' Courtroom Demeanor" step by step through "Closing Arguments." Each chapter discusses a phase of the trial in detail and contains citations to both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Aimed at a general audience, the book is applicable to civil and criminal trials and to plaintiff's counsel and defendant's counsel.
While the entire book contains useful information, two areas stand out as being particularly helpful. The first is the book's emphasis on preparation. The authors continuously exhort the reader to thoroughly prepare a case: to know the facts, to know the law, and to develop a plan for presenting the facts and the law to the jury in a compelling fashion. Essential to this process is the creation of a trial notebook. Detailed instructions are provided to enable the reader to produce an orderly trial notebook that puts all the information necessary for the trial within reach at counsel's table.
The second area that stands out is Chapter 10, which shows exactly how to establish the necessary foundation for admitting exhibits into evidence. With these step-by-step instructions, the inexperienced attorney need not struggle to get a crucial item admitted into evidence during the heat of the trial.
This book does not contain anything new or exotic. What it does contain is solid, fundamental information that will serve as a valuable guide to the novice litigator preparing for a jury trial.
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Smart Negotiating: It's a Done Deal
By John Patrick Dolan (Irvine, CA: Entrepreneur Press, 2006). 172 pgs. $19.95. Order, www.entrepreneurpress.com.
Reviewed by Donna M. Jones
The key to effective negotiation, according to John Patrick Dolan, is "working side-by-side with another party (parties) to achieve mutually beneficial and satisfactory results." Dolan recognizes, however, that this key is foreign to many negotiating situations. He believes that being an effective negotiator requires being able to read people and relate to them and understanding how to deal with value perceptions of all the people involved while remembering that values are never objective.
In Smart Negotiating: It's a Done Deal, Dolan draws on his business and legal experience to provide a multitude of advice. An effective negotiator must have a basic strategy that serves as a master plan, Dolan states. Dolan's five-step plan includes: always be prepared; have the parties set objective ground rules beforehand; work with, not against, people you are negotiating with to develop mutually beneficial solutions; finalize all agreements and clarify expectations; and follow through. To help negotiators implement their plans effectively, Dolan offers advice that covers barriers, dangers, defense strategies, guidelines, inventories, myth-busters, ploys, questions, reasons, rules, steps, suggestions, and tactics.
To find a mutually beneficial solution, the smart negotiator begins by identifying the core issues and focusing on those issues, instead of focusing on each side's positions. Throughout the negotiation process, effective two-way communication is essential to avoid barriers such as emotions and smokescreens. Questions are the negotiator's most powerful tool, and the author discusses relevant guidelines and dangers relative to questions. He also provides 14 common negotiating tactics, and much more information.
Each chapter ends with an illustrative "One Last Thought," and the book ends with a glossary and index.
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Judge for Yourself: Clarity, Choice, and Action in Your Legal Career
By Miriam Bamberger Grogan & Heather Bradley (Chicago, IL: ABA, 2006). 100 pgs. $24.95. Order, (800) 285-2221.
Reviewed by Rebecca K. Blemberg
Many lawyers profess to be dissatisfied with their careers. They dislike the type of work they do or the hours they put in or the people with whom they do business. Authors Miriam Bamberger Grogan and Heather Bradley want to help these dissatisfied lawyers in Judge for Yourself: Clarity, Choice, and Action in Your Legal Career.
The book is divided into three sections, and each section tells the story of a lawyer struggling with some type of career dissatisfaction. The lawyers and stories are diverse. Section one is about an attorney who has had a long and satisfying legal career but is concerned about finding job satisfaction in the last two years before mandatory retirement. This same attorney also is concerned about whether he will enjoy retirement. Section two tells the story of two married attorneys who have demanding careers and young children. These attorneys struggle to balance family and work. Section three is about a new attorney who enjoys her work but does not understand the politics of her law firm or how she should position herself for career advancement.
The stories are interesting, and the lawyers are well-developed, engaging characters. Each attorney receives career-changing advice from someone: a retired judge, a spouse, a career counselor. The advice seems sound in each case, but the way it's presented is somewhat hokey. The "wise characters" pose a series of questions to the attorneys about goals and values. (These same questions are repeated in worksheet form at the end of the book for the reader.) Despite this awkward device, however, the book does succeed in raising intriguing questions and even presenting thoughtful advice about what lawyers can do to enhance career satisfaction. All lawyers will probably find some wisdom in this book, even if they don't do the worksheets at the end.
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Just Silences: The Limits and Possibilities of Modern Law
By Marianne Constable (Princeton, NJ: Princeton Univ. Press, 2006). 232 pgs. $29.95. Order, www.pupress.princeton.edu.
Reviewed by Bret A. McKitrick
Just Silences reminds me of a text found on the required reading list of that jurisprudence seminar most of us avoided in law school. The author, Marianne Constable - a professor of rhetoric - sees America at an important juncture in time, when the justice of law finds itself hidden in the silences of what the law fails to say as much as it asserts itself in speech.
Early on, the author asks, "When does silence about silence in a library speak of such familiarity with silence that no sign [instructing silence] is needed?" At once, Constable sets forth a memorable parallel between law and language to which she frequently returns while signaling the audience: this will not be a quick summer read. Admirably, Constable does manage to hold the reader's interest through her use of familiar legal examples and a smooth, conversational writing style.
Through rhetorical analysis of modern law, borrowing thoughts from Nietzsche, Foucault, and legal scholar Robert Cover, the author introduces the notion that law is a sociological phenomenon "manifesting itself as a humanly created social power." She explains how modern law is a reflection of the human laws of society, which establish our standards of judgment.
To err is human and the fallacy in a positive legal view is that human laws often fail to mention the word "justice." Constable illustrates how a word as important as "justice" can easily disappear in two examples of U.S. law: legislation protecting Native American culture and the ultimate "silent" rule, the Miranda warning.
Just Silences quietly warns us of the dangers of the law losing its sense of justice by focusing on what is left unsaid by modern law. Even more alarming might be finding out that silences also hold what modern law cannot hear.
Bret A. McKitrick, Pittsburgh 2000, is general counsel with SASI, an employee benefits administration corporation in Milwaukee.
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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. Reviewers may keep the book they review. Reviews are published in the order in which they are received.
Publications available for review:
- Celebrating the Courthouse: A Guide for Architects, Their Clients, and the Public, edited by Steven Flanders (New York, NY: Norton Books, 2006). 240 pgs.
- The Cybersleuth's Guide to the Internet, by Carole A. Levitt & Mark E. Rosch (Culver City, CA: Internet for Lawyers Press, 2006). 268 pgs.
- Executive Compensation and Related_Party Disclosure: SEC Rules and Explanation, by James Hamilton (Riverwoods, IL: CCH, 2006).193 pgs.
- Fundamentals of Bankruptcy Law, 6th ed., by Richard B. Levin (Philadelphia, PA: ALI-ABA, 2006). 566 pgs.
- How to Build and Manage a Personal Injury Practice, 2d ed., by K. William Gibson (Chicago, IL: ABA Law Practice Management Section, 2006). 176 pgs. with CD-ROM.
- Improvisational Negotiation: A Mediator's Stories of Conflict about Love, Money, Anger - and the Strategies that Resolved Them, by Jeffrey Krivis (San Francisco, CA: Wiley Professional/Trade Group, 2006). 324 pgs.
- The Lawyer's Guide to Creating a Business Plan: A Step-by-Step Software Package, by Linda Pinson (Chicago, IL: ABA Law Practice Management Section, 2006). CD-ROM only.
- A Lawyer's Guide to Networking, by Susan R. Sneider (Chicago, IL: ABA Young Lawyers Division & ABA-CLE Career Resource Center, 2006). 132 pgs.
- The Lawyer's Guide to Records Management and Retention, by George C. Cunningham & John C. Montaña (Chicago, IL: ABA Law Practice Management Section, 2006). 304 pgs. CD-ROM.
- The Negotiator's Fieldbook: The Desk Reference for the Experienced Negotiator, edited by Andrea Kupfer Schneider, Christopher Honeyman (Chicago, IL: ABA Dispute Resolution Section, 2006). 800 pgs.
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