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    Wisconsin Lawyer
    July 01, 1999

    Wisconsin Lawyer July 1999: Book Reviews

    Book Reviews

    This Month's Featured Selections

    Lipman Lawyer: A Life of Counsel and Controversy

    By Arthur L. Lipman
    (New York, NY: PublicAffairs, 1998).
    Hard. 384 pgs. Retail $21.

    Reviewed by David F. Loeffler

    Arthur Liman's death in 1997 deprived the profession of a premier corporate litigator. But Liman's memoir of a life in the law should reassure anxious or depressed lawyers, especially litigators, that they too can lead meaningful and useful legal lives.

    The book is a retrospective of pieces of complex and high stakes corporate litigation. Liman was a "first chair" who spent hours deciding what the dominant theme or narrative of his case would be, and then invested many additional hours absorbing every relevant fact, mastering each crucial document, and personally prosecuting and defending every critical deposition. For Liman, God (or the Devil) was in the details. Preparation always determines a trial outcome, he tells us. And his considerable successes, only some of which are recounted here, are the vindication of his approach.

    Memoirists, especially litigators, cast themselves in an overall favorable light. Liman is no exception, but the unbridled self-promotion and unqualified egoism that exude from most litigators' stories of their career are not present here. Although Liman is convinced that "his side" was invariably the side of "justice and right," he is a sufficiently scrupulous storyteller, so that, in almost every case, the trained reader can conclude from Liman's narration that an alternative view of the case was, at the least, a reasonable one. He includes cases he lost.

    Most interesting is Liman's observation, with illustrations, that the litigator's basic skills - the ability to think strategically while mastering dense detail, and a sense of creative compromise as the road to settlement - enabled him to wisely advise, up front, on large commercial transactions, even though he has no particular transactional expertise in matters of mergers, acquisitions, financing, or the black-letter law of corporations.

    These same litigation skills served Liman well when he served as chief counsel of Gov. Rockefeller's investigation of the Attica prison uprising, and as a chief counsel of the congressional joint committee investigating the Iran/contra affair.

    Arthur Liman was a loyal advocate. He never hesitated to bring the bad news, unvarnished, early on. However, he never cut and ran, either to preserve a reputation for success or to opportunistically minimize costs at the expense of the quality of representation, if any doubt arose as to a client's ability to continue to pay. His personal anguish is palpable as he recounts the moment at which Judge Kimba Wood imposed a 10-year sentence on his client, Michael Milken, after Liman had laboriously negotiated a guilty plea bargain (in which the government promised not to seek more than five years imprisonment), a bargain Judge Wood ignored.

    Arthur Liman is perhaps best known to the general public and to most lawyers for his role as chief counsel to the joint congressional committees investigating the Iran missile/contra diversion transaction. The committees investigated that matter with a view toward determining whether President Reagan committed impeachable offenses. Liman and the committee concluded that he did not, largely because of the lack of evidence that the President, in fact, knew very much at all about the activities of his National Security Advisor, Admiral Poindexter, and Poindexter's assistant, Col. Oliver North. Liman's observations on President Reagan's hands-off style of foreign policy management, as revealed by the committee's record, are not complimentary to the President.

    On a matter of some immediate relevance, Liman's experience with the Iran/contra matter convinced him that the Office of the Independent Counsel was an unwise, if not unconstitutional, delegation of responsibility for democratic governance by politically responsible decisionmakers in the executive and legislative branches. He was deeply disappointed that most Americans thought Col. North was a true patriot - doing what was necessary to do what was right. Liman thought that North, and others, were renegades, contemptuous of the constitutional processes of our democracy. Characteristically, Liman blamed the manner in which Liman had conducted the investigation for what he perceived to be a terrible failure in understanding by most members of the public.

    Arthur Liman loved the law. The manner in which he discharged all his duties for nearly 40 years reaffirms Oliver Wendell Holmes' faith that a lawyer can live grandly in the law.

    David F. Loeffler is a corporate litigator in Milwaukee affiliated with the law firm of Krukowski & Costello S.C.

    Competing Interests in Family Law: Legal Rights and Duties of Third Parties, Spouses, and Significant Others

    By John C. Mayoue
    (Chicago, IL: ABA Family Law Section, 1998).
    Soft. 187 pgs. Retail $84.95.

    Reviewed by Jolene D. Schneider

    This book is a well-written, organized introduction to some of the unique issues confronting the family law practitioner. As the title implies, legislators and jurists are frequently required to balance competing, yet compelling interests in their creation of family law.

    Attorney John C. Mayoue begins his analysis by identifying various evidentiary and civil issues that may arise in the context of a divorce action, including wiretapping. Most family law attorneys have encountered clients in the midst of placement disputes who believed that they gathered valuable evidence in their cases by recording telephone conversations between their spouses and their children. Those same attorneys likely would find Mayoue's readable, concise summary of federal law on the subject useful in dealing with such clients. (Fellow practitioners, take note: Attorneys suffer significant liability exposure if they disclose and/or use an "intercepted" communication.)

    Mayoue also examines the rights of third parties and relates how parties' competing legal interests may result in additional issues being raised within the context of domestic litigation. For example, judicial recognition of third party ownership interests in marital property may dramatically alter the parameters of an equitable property division.

    Finally, Mayoue addresses changes in the law that recognize the growing number of "alternative" relationships in our society. The recent expansion of rights afforded to grandparents and stepparents results in diminished parental rights, and the ensuing tension between these and other competing interests illustrate the delicate nature of many issues challenging our legal system.

    As the foregoing suggests, Mayoue raises many issues for which there is no quick or easy resolution. The reader may be left with more questions than answers. However, the book does enable one to identify situations where additional research would be either necessary or desirable in representing a client. Fortunately, the reader need not look far for additional sources of information. The numerous appendices and works cited will provide a strong foundation for further research of any of the topics addressed within this book.

    Because Mayoue is speaking to a national audience, readers should view his book as a handy guide to potential issues rather than as an exhaustive reference. Frankly, seasoned family law practitioners may find that Competing Interests in Family Law is a bit too simplistic to be useful. On the other hand, newer attorneys and general practitioners probably would view this handbook as a welcome addition to their libraries.

    Jolene D. Schneider, U.W. 1997 cum laude, is an associate at Robinson, Peterson, Berk & Cross LLP, Appleton. Her practice focuses on family law.

    Hot Docs® In One Hour for Lawyers

    By Bruce W. Miller
    (Chicago, IL: ABA Law Practice Management Section, 1998).
    Soft. 55 pgs. Retail $34.95.
    To order, call (800) 285-2221.

    Reviewed by Martin A. Blumenthal

    HotDocs® is a nifty software application that lets the user automate document preparation. For example, assume a lawyer prepares the same real estate contract for all residential properties. He or she normally may go through the document on the word processor and manually change the terms (for example, buyer name, seller name, price) to fit each transaction. HotDocs automates this process and lets the lawyer insert all of the terms that change from contract to contract (called "variables") on one screen while the computer does the rest.

    Hot Docs® in One Hour for Lawyers is a step-by-step manual for learning this program. To run the program, your computer will need at least 6 MB of space left on the hard drive, 8 MB of RAM and a 386 CPU. (If you are still using a 386 machine with 8 MB of RAM, get rid of it. I recommend at least a 120 Mhz CPU with 32 MB of RAM.) HotDocs is not available in DOS or MAC and needs Windows 3.1, 95 or NT 3.51 or 4.0 to run it. It also is compatible with three popular word processors: WordPerfect for Windows (version 5.2 or later), Word for Windows (version 6.0, 7.0 or 97), and AmiPro for Windows (3.0 or 3.1).

    In four easy lessons, complete with detailed steps and on-screen illustrations, the manual guides the reader through the program's capabilities from basic to advanced. "That's great!" you say, "but I can't learn how to use a program from a book alone." Well, you don't have to if you have Internet access. Just point your browser to www.capsoft.com to download a copy of HotDocs that's good for 30 days.

    An extra lesson explores the advanced features of HotDocs that greatly increase the program's usefulness, and the author adds helpful advice culled from his own experience.

    This book will get you up and running quickly and will shorten your learning curve significantly.

    Martin A. Blumenthal, IIT-Chicago Kent 1981, is a CPA and practicing attorney in Illinois and Wisconsin.

    Achilles' Heel America's Achilles' Heel: Nuclear, Biological, and Chemical Terrorism and Covert Attack

    By Richard A. Falkenrath, Robert D. Newman,
    and Bradley A. Thayer
    (Cambridge, MA: The MIT Press, 1998).
    354 pgs. Retail $22.50.

    Reviewed by Daniel B. Baskin

    An Achilles' heel is a unique vulnerability in an otherwise impregnable entity: the chink in one's armor, so to speak. Achilles was the son of a mortal father and the goddess Thetis. To make him immune from physical harm, his mother dipped the infant Achilles in the river Styx. As she dangled him in the river, Thetis held tiny Achilles by the heel of one foot. Achilles' heel, untouched by the river water, remained the one vulnerable spot on his body. During the Trojan War, Achilles died when he was struck by an arrow in this very spot.

    The Cold War is over, and no longer is there an empire that can challenge America's global preeminence. While relatively secure from outside military attack, America remains vulnerable to covert attack from within. It is this vulnerability that is America's Achilles' heel. A nuclear, biological, or chemical (NBC) covert attack may not be imminent, but the threat is very real and growing stronger each day. Indeed, such acts already have occurred in the industrialized world.

    The authors carefully examine the logistics of acquiring weapons of mass destruction and their various effects. They also analyze the motivations and limitations of both "state actors" (nations) and "nonstate actors" (private groups or individuals) with regard to the use of these weapons. Such weapons are well within the reach of those perseverant and fanatical enough to develop or acquire them. Historically, the use of weapons of mass destruction has not served the interests of most traditional terrorist organizations; they understand that overplaying violence can lead to abandonment by sponsors and sympathizers. A noteworthy development, however, is the rise of terrorists who, rather than using violence as a means to an end, regard violence itself as the end. Timothy McVeigh and company are examples of this new breed.

    The authors suggest measures to help America better prepare for covert NBC attack. They argue that the time to plan for such a disaster is now, before judgments are clouded with emotion. Otherwise, in the ensuing panic of a covert NBC attack, Americans' civil liberties could be early casualties.

    For those interested in a comprehensive review of the NBC threat, America's Achilles' Heel is a good place to start.

    Daniel B. Baskin , U.W. 1990, presently practices law in the Milwaukee area.

    Marshall Thurgood Marshall: American Revolutionary

    By Juan Williams
    (New York, NY: Times Books, 1998).
    Hard. 459 pgs. Retail $19.25.

    Reviewed by Julita Kishma de Leon

    It is fitting that someone should write a biography of Thurgood Marshall, one of the most influential Americans in this century. Juan Williams' Thurgood Marshall: American Revolutionary is a wonderful attempt to shed light on Marshall's life and legacy.

    Marshall's prominence arises from his contribution to public law, specifically his interpretation of the First and Fourteenth Amendments of the U.S. Constitution, his landmark decisions such as Stanley v. Georgia (1969) and Grayned v. City of Rockford (1972), and his exemplification of individual rights and civil liberties.

    Williams, the best-selling author of Eyes on the Prize, is a seasoned political analyst with the Washington Post. He gives a thorough account of Marshall's boyhood in Baltimore, his life as an attorney with the NAACP Legal Defense and Educational Fund, his tenure as an appellate court judge, and his reign as solicitor general. The author meticulously relates aspects of Marshall's life - such as his familial relations, his middle-class background, his bout with racial discrimination, and his contribution to the 1960s civil rights movement - to Marshall's work as an attorney. Williams also nudges the reader to view Marshall as a product of an integrated community who fought incessantly to integrate American society. According to Williams, "the key to Marshall's work was his conviction that integration - and only integration - would allow equal rights under the law to take hold." In fact, Williams seems to support this view and he discretely nudges the reader to arrive at the same conclusion.

    Although Williams painstakingly explains and illuminates Marshall's achievements as an attorney, he offers little on Marshall's contribution as a U.S. Supreme Court justice. While Marshall is well known for his influence on civil rights law, he contributed significantly to First Amendment jurisprudence. This biography does not include this aspect of Marshall's tenure at the Supreme Court. In fact, the reader longs to see Marshall's intellect, his views on other areas of the law, and his view of a judge's role in our legal system.

    Nonetheless, Thurgood Marshall: American Revolutionary is an undertaking of considerable merit. The book gives a solid view of a distinguished American who changed our society by "creating a new legal landscape." It also paves the way for a more definitive work on Marshall's legacy as a U.S. Supreme Court justice.

    The book would be most useful to those who are concerned about effectuating social changes and are thinking about attending law school but are unsure of how to use the law as an instrument to effectuate social change. It also may be useful for disillusioned attorneys who, at the nadir of their careers, are rethinking what it means to be a lawyer. Lastly, the book would be useful to those who provide legal representation to the economically dispossessed in this country.

    Julita Kishma de Leon is a 1996 graduate of the U.W. Law School.

    Software Inventing Software: The Rise of "Computer-Related" Patents

    By Kenneth Nichols
    (Westport, CT: Quorum Books, 1998).
    Hard. 169 pgs. Retail $55.

    Reviewed by Aida Michlowksi

    Inventing Software: The Rise of Computer-Related Patents is not for the faint of heart. This work is clearly written for the highly computer literate. To read it is to go through "a dense forest of legal and technical verbiage."

    The first two chapters are replete with computerese and the alphabet soup of acronyms. Then one finds a clearing in chapter 3. Of particular interest to intellectual property practitioners are the definitions of novelty, obviousness and nonobviousness, along with software patent examples such as a text-search system, an object-oriented database, a "C" source code blocker, and a special-purpose sorting method. But a thick fog of software patent controversy descends in chapter 4 followed by a ray of sunshine in chapter 5 with a proposal for change.

    Targeting the software developer in chapter 6, Nichols offers suggestions on how to minimize infringement risk such as: documentation of the sources of the algorithms, defensive publishing, source code availability, and contingency planning. Nichols also includes the all-important section on how to choose a lawyer - one who would take the initiative to safeguard the software inventor's interest. Nichols recommends full-service firms and lawyers with computer science backgrounds for obvious reasons. The book ends with discussions of programming in chapter 7 and the crisis of the patent paradigm.

    Nichols sums the software patent controversy succinctly, "that the legal scheme surrounding software is a mess" and "[I]f only software changed as slowly as the law, maybe then we could all get some much-needed rest." Unfortunately, such is not the case and although Nichol's style is straightforward, I didn't learn anything new. Maybe I should start with Computer-Related Patents for Dummies.

    Aida Michlowski, Marquette 1991, is a full professor at Silver Lake College in Manitowoc.


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