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Vol. 74, No. 6, June 2001
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Book Reviews
Privileged
Communications in the Delaware Corporation: Corporation
and Commercial Privileged Litigation in the Delaware Courts
by John E. James (Riverwoods, IL: CCH Inc., 2000). 186 pgs.
$95. Order, (800) 248-3248
Reviewed by Thomas L. Doerr Jr.
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This book sets forth the decisional history of the Delaware courts' interpretation
of the attorney/client privilege. Due to Delaware's reputation and perception
as an excellent forum for resolving corporate issues, and because Delaware
is home to many Fortune 500 corporations, litigation is brought frequently
in that state.
The book provides a detailed history of the attorney/client privilege,
including references to the common law of England, and Delaware's first
constitution of 1776. Readers learn that the privilege was codified in
1980; however, when Delaware adopted the Federal Rules of Civil Procedure,
the privilege and the discovery rules did not mesh, and thus, the courts
were forced to make many significant decisions that still are cited today.
The author does an excellent job of going through Delaware decisions
in which the Delaware courts had to examine the incompatibilities of the
privilege and liberal discovery rules. The book discusses the work product
doctrine and what factors the Delaware courts have considered when rejecting
or recognizing exceptions to the protection of work product.
When sensitive fiduciary relations are at issue, such as when the corporation
or its directors dispute other directors or fiduciaries, the attorney
often is in a compromising position. Although Delaware law on this is
somewhat scant, the author does a nice job of analogizing the situation
to similar situations, including disputes such as whether the privilege
had been waived and what a shareholder must do to demonstrate enough evidence
to obtain disclosure of privileged information.
The book addresses the waiver of the attorney/client and work product
privileges and the exceptions to the application of the privilege. The
book explains the two-step analysis that the Delaware courts follow when
deciding whether communications in furtherance of a crime or fraud are
adequate to overcome the privilege. Several additional exceptions to the
application of the privilege are examined, such as the breach of an attorney's
ethical responsibilities and when an assertion of ineffective representation
is made. Although these exceptions are used infrequently, they shed some
light on other exceptions that can be asserted. The book discusses the
communications between the attorney and the witness and the exception
that allows the attorney and the client to discuss strategies.
In the end, the book turns to how Delaware continually has recognized
that the party asserting the attorney/client or work product privilege
holds the burden of establishing its application. Nonetheless, once the
privilege is established, the burden is on the party arguing for an exception
to the privilege. In sum, the book is a wonderful tool for the business
litigator to get an all-inclusive background and understanding of both
the history and the developments of privileged legal communications.
The business litigator who deals with corporate governance should consider
reading this book to develop a better understanding of the history of
the privilege and so that he or she may better predict how the Delaware
courts will continue to balance and consider different concerns that continue
to arise.
Thomas L. Doerr
Jr., Marquette
2000, practices in Milwaukee at Beck, Chaet, Molony & Bamberger.
Tipping
the Scales of Justice: Fighting Weight-Based Discrimination
by
Sondra Solovay (Amherst, NY: Prometheus Books, 2000). 261 pgs.
$13.60.
Reviewed by Lucy Hawley Terry
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In perhaps the first and only authoritative book on fat prejudice, attorney
Sondra Solovay paints a disturbing picture of widespread mistreatment
of the obese and urges extending current law to remedy these problems.
Proclaiming "fat discrimination" as the civil rights issue of the millennium,
she calls for increased legal protection, detailing a litany of abuse
inflicted upon fat people by peers, teachers, employers, and even judges.
She disputes the prevailing notion that fat people's size is their own
fault, saying scientific evidence shows that obesity is not within the
individual's control. Because body size may be immutable and not reflective
of a person's abilities, she argues that antidiscrimination law should
apply. She touts progress against fat discrimination, including laws passed
in Michigan and California that specifically prohibit discrimination on
the basis of weight in employment and housing.
The author recommends applying disability laws to the obese; a controversial
stance that puts her at odds with other so-called fat-rights advocates
who resist using the disabled label. After examining several cases involving
the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation
Act, she concludes that the courts' treatment of larger-sized people under
these laws too often is inconsistent, confused, and tainted by fat prejudice.
She proposes a clearer, more logical way of categorizing and analyzing
these cases, and reiterates how destigmatizing obesity helps correct pervasive
misperceptions of fat people's abilities.
The book's strength lies in its focus on education and reform and the
human face put upon the problem of fat prejudice. However, even the author's
extensive use of footnotes can't compensate for the dearth of legal materials
involving weight discrimination. The appendices list organizations devoted
to fat-rights advocacy, recommended readings, samples of antidiscrimination
laws, and excerpts from the ADA. But the paucity of published opinions
reflects the reason why the book is a "tool of legal scholarship" as opposed
to a "handbook" - the still novel issue remains largely confined to academia
and talks shows, not the actual practice of law. In our progressively
heavier society, fat people may be closer to tipping the scales as the
majority, but one wonders whether protection against fat prejudice will
ever become the prevailing legal norm.
Lucy Hawley Terry,
Denver 1988, has been a member of the Wisconsin bar since 2000.
The
Never-Ending Divorce: A Handbook for Clients
by ABA Family Law Section (Chicago, IL: ABA, 2000). 40
pgs. $12.95.Order, (800) 285-2221.
Reviewed by Donna M. Jones
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Most often, divorce is a very unpleasant and painful experience. Sometimes,
it is also extremely difficult. The Never-Ending Divorce is an excellent
resource for the client who experiences a difficult divorce. This ABA
Family Advocate handbook provides nine articles that offer insights and
practical suggestions. Five articles cover relationships, including "Managing
Your Difficult Ex-Spouse," "Emotional Uncoupling," "Put Your Kids First,"
"Succeeding as a Stepfamily," and "Play It Safe." Four articles cover
property and finances, and include "It's Not Over Till It's Over," "Flex
Control Over Your Finances," "What Happens When Your Ex Files Bankruptcy?",
and "What Will Be." The theme that runs through each is also the subtitle
of the handbook: "How to step away and stop fighting."
Difficult divorces make it very hard to step away and stop fighting
because they seem endless, occurring when at least one (ex-)spouse is
unable to completely separate emotionally and psychologically from the
other. Inability to let go and move on becomes fuel for contentious interactions.
Fortunately, the other (ex-)spouse can use this handbook for valuable
strategies. "Managing Your Difficult Ex-Spouse" is well written, instructive,
and concise. Complete with a "Take Charge" list, its sections include
"why people hang on," "predicting problems," "handling danger," and "positioning
for success." "Put Your Kids First" offers wise advice to divorced parents
from two perspectives. "A four-step approach" provides guidance for effectively
using the legal and extra-legal processes.
"Do's and Don'ts for Divorced Parents" offers 18 suggestions for fostering
positive parent-child relationships, while reducing conflict between parents.
"Play It Safe" arms (ex-)spouses with "legal and practical remedies" for
preventing domestic violence. It also provides a plan and cites that "75
percent of domestic violence-related emergency room visits occur after
separation."
"It's Not Over Till It's Over" emphasizes "Drive a hard bargain, follow
through on enforcement, and know when to stop." It is representative of
the property and finance articles. Each is detailed and methodical. Each
emphasizes that timely follow-through is critical and provides checklists
or online resources. They cover property, investments, tax planning, and
more in a clear, understandable, and nonintimidating manner. This very
instructive handbook includes a bibliography and "Client Satisfaction
Questionnaire." It leaves clients in difficult divorces well equipped.
Donna M. Jones,
U.W. 1978, is a member of the Participation of Women in the Law Committee
and a past member of the State Bar Board of Governors.
Marketing
and Legal Ethics: The Boundaries of Promoting Legal Services
by William E. Hornsby Jr. (Chicago, IL: ABA Law Practice Management
Section, 2000). 203 pgs. $89.95.
Reviewed by Raj Kumar Singh
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Hornsby, the author, is staff counsel in the ABA's Division for Legal
Services and has spent a good deal of his professional career working
and writing about legal ethics and marketing.
Written in a nonmoralistic tone, the book's substance is presented in
the first 153 pages, which are broken down into 11 chapters. The remainder
is made up of appendices and an index. The points made are heavily cited,
using chapter endnotes.
This book is extremely dry. Illustrative examples are offered in a concise
and detail-shy fashion, and the writing is nearly bereft of humor, all
of which is good from the standpoint of efficiency and maintaining focus,
but makes for more labored reading.
This book is clearly intended by the author and publisher to be of valuable
use to attorneys and scholars of legal practice everywhere in America,
but it is not of such value, nor could it be, con-sidering its purposely
national perspective. I would highly recommend this book only to those
statistically few members of the legal profession who are in a position
to influence policy in the area of legal services marketing. Law professors
also may find it to be of interest, but not as a textbook for their students.
Lastly, those involved in resolving charges of unethical conduct in the
area of legal services marketing may find it to have a soft, relatively
diffused value as they attempt to find support for the acceptability of
their arguments from the policies of the various states. I would expect
typical legal practitioners, though, to find the information in this book
to be a dangerous and pointless distraction from the specific rules of
their own state bar.
Raj Kumar Singh,
Valparaiso 1999, is a liaison between a multistate petroleum conglomerate
and its numerous outside counsel.
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,
klester@wisbar.org. Reviewers
may keep the book they review. Reviews are published in the order
in which they are received. To purchase any book reviewed in this
column, please contact the publisher, or ask your local bookstore
to order it for you.
Publications and videos available for review
- Damages: A Plaintiff's Attorney's Guide for Personal
Injury and Wrongful Death Cases, by David Ball (Notre
Dame, IN: National Institute for Trial Advocacy, 2001). 180 pgs.
- Informal Corporate Disclosure Under Federal Securities
Law: Press Releases, Analyst Calls and Other Communications, by
Ted Trautmann & James Hamilton (Riverwoods, IL: CCH Inc., 2001).
243 pgs.
- OSHA's New Ergonomic Standard: A Cost-Effective Guide
to Complying with the November 2000 Final Rule, by Deborah
Kearney (Rockville, MD: Government Institutes Division, 2001).
300 pgs.
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