Wisconsin
Lawyer
Vol. 81, No. 3, March
2008
Book Reviews
LLCs and LLPs: A Wisconsin Handbook, 3rd
Edition
By Steven R. Battenberg, Joseph W. Boucher, Debra Sadow
Koenig,
Marcus S. Loden, Sarah E. McNally, Douglas J. Patch, Bret A. Roge &
William
R. West (Madison, WI: State Bar of Wisconsin CLE Books, 2007). 515+
pgs. Forms on CD. $180 members / $225 nonmembers. Order, www.wisbar.org.
Reviewed by Clarence W. Malick
The eight authors write with authority, aided by six skilled
reviewers.
Mr. Boucher was a drafter of the original 1994 Wisconsin LLC Law
(WLLCL), the
first edition of this handbook, and the 1999 revision. The handbook was
extensively cited by both majority and dissent in 2005 in the Wisconsin
Supreme
Court's first opinion that applied the WLLCL.
The book uses State Bar CLE Books' typical loose-leaf three-ring
binder
to facilitate supplementation and replacement. To give a sense of the
book's
scope and depth, the chapter titles and the chapters' respective page
lengths
are: Introduction, 19 pages; Choice of Business Entity, 21 pages;
Organization
and Formalities of LLCs, 38 pages; Operational Issues of LLCs, 48 pages;
Tax
Issues, 82 pages; Limited Liability Partnerships, 23 pages; Limited
Liability Entities for Lawyers and Other Professionals, 21 pages; and
Forms, 173 pages.
There are five appendices: 1) Wisconsin LLC and LLP statutes; 2)
the
federal check-the-box regulations; 3) Wisconsin Department of Revenue
Publication
119; 4) a table of the Wisconsin Department of Financial Institutions
filings
and fees; and 5) a "State Tax Treatment of Limited Liability
Companies and
Limited Liability Partnerships" table that shows key features of
the laws of all
states and the District of Columbia.
The book also contains a table of statutes, regulations, and
rules and a
13-page index. The CD-ROM contains a checklist for member agreements,
five
types of member agreements, one LLP partnership agreement, and a generic
engagement letter with an example of the client disclosure required of
limited
liability practices by the ethics rules. The CD-ROM does not have the
comments
contained in the forms chapter (8), so the user is advised to use them
together.
As I wrote in 1995, business lawyers will find this book
worthwhile.
Because the area of practice is evolving, I advise ordering automatic
supplementation.
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American Religious Democracy: Coming to Terms with
the End of Secular Politics
By Bruce Ledewitz (Westport, CT: Praeger, 2007). 243 pgs.
$49.95.
Order, www.praeger.com.
Reviewed by Kenneth Krause
American secularism continues to face serious challenges. Perhaps
Establishment Clause litigation cannot, depending on your perspective,
either save or
advance the secular ideal. To most spectators, plaintiffs appear to
behave like
spoiled, jealous children, begrudging religionists insignificant if not
nonexistent
advantages. In a constitutional democracy, many wonder, how can any
expression
_ including religious expression _ deserve judicial suppression? As for
politicians, few, if any, can achieve national office after confessing
their
atheism. But do such facts necessarily portend the demise of American
secular democracy?
When Americans reelected George W. Bush in 2004, answers
Duquesne law
professor Bruce Ledewitz, they officially and permanently abandoned a
secular
government loath to endorse religion in favor of a "religious
democracy"
wherein policies actually are designed to reflect and advance the
overwhelming
majority's faith. Thus, Ledewitz advises his secular audience to join
those whom
they cannot beat _ in the end, to accept and assert a vague, diluted,
but
politically opportune biblical devotion allowing them not merely to
tolerate, but also
to embrace, the formerly unpalatable concept of "God."
To be convincing, Ledewitz must demonstrate first, that
American
secularism is both dying and unrevivable, and second, that religious
democracy can
emerge as its successor. Although the author rightly observes that,
eventually,
legislation and constitutional interpretation must bow to popular
opinion, he
arguably misjudges either the character or the historical persistence of
that
opinion.
Contrary to the "secular consensus," Ledewitz claims
that as Americans
have grown more educated, they have failed to become less religious.
Although
he equates education with occupational training, others might insist
that
more worldly enlightenment does indeed tend to frustrate
supernaturalism. After
all, while 90 percent of Americans profess belief in a personal God,
more than
90 percent of America's leading scientists do not. Secularism's
continued
success, in other words, might depend only on a deeper commitment to
popular education.
Although Ledewitz demonstrates appropriate knowledge of First
Amendment
jurisprudence, his grasp of religious history is suspect. Despite very
recent trends, the civilized world has clearly grown more secular over
the
centuries. As for the propriety of religiously based government, readers
might wonder
why Ledewitz ignores the facts of Islamic jihad and dhimmitude, European
crusades, inquisitions, and pogroms, as well as American bible riots and
witch hunts.
American Religious Democracy is timely, but, in the
end,
its substance
is lacking. Once again, political rhetoric thrives despite history, and,
once again, the political season is on us.
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A Lawyer's Guide to Networking
By Susan Sneider (Chicago, IL: ABA Young Lawyers Division
&
ABA-CLE Career Resource Center, 2006). 132 pgs. $29.95. Order, (800)
285-2221.
Reviewed by Nilesh Patel
Networking is a crucial skill for professional success. A good legal
practice
is built by developing solid relationships with clients and other
attorneys, who
in turn recommend you to potential clients, refer new business your way,
and
point you toward resources for difficult or novel cases. Many job
opportunities
also come about through good networking when people hear of an
opportunity and
think you are perfectly suited for the position.
Even though networking is a crucial skill, attorneys are left to
figure
out the basic norms of good networking through trial and error. However,
A Lawyer's Guide to Networking provides a very good roadmap on
the basic premises
behind successful networking and practical exercises to start thinking
about how
to develop networking skills.
The book is a short 126 pages and a very easy read. Sneider uses
two
formats _ the first provides advice and insights from other attorneys on
topics such
as what is networking, why networking is beneficial and even necessary,
and
even what networking is not. The second format uses exercises to help
define
who already is in your personal and professional networks, personal
barriers
to effective networking, and developing conversation starters at
networking
events or even in the elevator.
Sneider intended the book to be a workbook, and she manages to
cover
the basic skills without making the process sound tedious and without
preaching.
The advice she offers is complemented by examples from practitioners and
their
tips on how to develop networking skills. Some of the best advice deals
with
defining networking: building relationships through helping
people. As one
practitioner states, networking is not a sales tactic _ you don't
network with the
express objective of developing sales because then, you are just using
people and
it will be obvious that you are not genuine in your interactions.
I would recommend this book to anyone who does not consider
herself an
expert networker. The book is clearly useful for law students and new
attorneys
who have not thought about or experienced all the aspects of networking.
However, the book also provides a quick review for experienced attorneys
and
discusses relevant topics such as networking issues of in-house counsel
and networking
for a new job.
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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. $79.95. Order,
(800) 282-2221.
Reviewed by Roger W. Palek
The title of this book says it all: This is a resource for the
experienced
negotiator. Its chapters are arranged by broad topic, are extensively
referenced, and cite to source material that provides more in-depth
explanations. At
the beginning of each chapter, the editors pose difficult negotiation
dilemmas
that are answered within the chapter. These questions are conveniently
arranged
in the annotated table of contents by topic and subtopic, providing a
road map
for targeted access. The book's strength is its accessible format and
ease of
use. While it may not be a book to enjoy while sitting in front of a
fire and
sipping your favorite vintage port, you will reach for it for guidance
during
perplexing or frustrating negotiations. One good example is the chapter
"Internal and External Conflict" by psychologist Morton
Deutsch. Deutsch uses
Freud's psychodynamic theory to provide a framework for understanding
the conflicts
inherent within difficult negotiations. Using this framework to
understand the
"whys" of the individuals involved in the negotiations is an
invaluable technique.
One of my favorite chapters is Ambassador John W. McDonald's
"A New
Future For Kashmir." It addresses the India-Pakistan standoff, a
situation that
does not appear amenable to any plausible long-term solution. McDonald
outlines
some of the citizen-based strategies he employed to bring the parties
together
before undertaking more formalized governmental talks. While the
ultimate success
of his strategies may have been limited, his discussion offers helpful
insights into tackling what appears to be a completely unsolvable issue
and making
it incrementally better. In some negotiations, this is the measure of
success.
If you would like an overview of basic negotiation techniques,
please
look elsewhere. However, if you are an experienced negotiator who has
"seen it
all," you will benefit from the book. You are almost guaranteed to
find more than
a nugget or two of gold in this overflowing collection of expertise.
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Slips, Trips, Missteps and Their Consequences, 2nd
Edition
By Gary M. Bakken, H. Harvey Cohen, Jon R. Abele, Alvin S.
Hyde
&
Cindy A. LaRue (Tucson, AZ: Lawyers & Judges Publishing Co., 2007).
375
pgs. $129. Order, (800) 209-7109.
Reviewed by Martin A. Blumenthal
The authors of this treatise include a lawyer and experts in
ergonomics,
safety research, physiology, biophysics, and medicine. Each contributed
important
insights concerning the topic of accidental falls.
The reader first learns how people walk. The special problems of
elderly persons and their particular susceptibilities are well
illustrated. The
central nervous system's role in walking is described as well. The
physics of
friction, walking surfaces, stairs, and hazards is pictorially presented
with
computer-designed figures.
The discussion divides falls into several categories and
explains how
humans react to these falls. The authors included statistics on various
injuries
and age groups. There is a separate chapter that discusses the
biomedical
factors, such as heart disease, musculoskeletal system diseases, and
age-related
changes, that contribute to falls.
The book also is a handy guide for property owners regarding how
to
"fall-proof" their premises.
The legal part centers on tort theory such as premises liability
and
the standard discussion of the duty owed to the plaintiff, proximate
cause,
and damages. Specific types of falls are singled out, such as those
involving
ladders, showers, parking lots, and stairs. There is no mention of the
proverbial banana peel, but customer-created hazards are reviewed.
The treatment of skylight falls is particularly timely;
recently, a
teenager was trespassing on a roof of a Chicago factory with some
friends and
fell through a skylight. The autopsy showed she had ethanol in her
blood. If
it weren't so tragic, it would be the perfect, real-world illustration
of 95
percent of the material in the book.
Any practitioner who handles an occasional slip-and-fall matter
may find
this to be a comprehensive guide, whether from the plaintiff's or the
defendant's perspective.
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The Military Divorce Handbook: A Practical Guide to
Representing
Military Personnel and Their Families
By Mark E. Sullivan (Chicago, IL: ABA Family Law Section,
2006).
600+ pgs. CD-ROM/forms. $149.95. To order, www.abanet.org.
Reviewed by Lt. Col. Fritz Mielke
The Military Divorce Handbook is a detailed, comprehensive,
and pragmatic
guide that addresses the many issues and arcane procedures unique to
military
divorce. As the officer in charge of a legal assistance clinic at a
major Marine
Corps base in eastern North Carolina, I constantly use this ABA Family
Law
Section treatise, as do my subordinate judge advocates. The author,
retired reserve
Army Col. Mark Sullivan, has taken his more than 30 years of experience
as a
family law practitioner and lecturer with a focus on military family
matters and
placed that knowledge into a single, easily readable text. ABA Family
Law Section
president-elect and noted Milwaukee attorney, Gregg Herman, has this
comment:
"Attorney Mark Sullivan brings together all the loose ends in his
new treatise
on military divorce. Comprehensive, yet written with numerous checklists
to
quickly bring everyone up to speed _ even the attorney with a first-time
military
divorce case."
The need for this book is clear. According to a recent
USA Today article, the divorce rate of Army officers has gone
up
78 percent since the initial
invasion into Iraq in 2003 and has more than tripled since 2000, before
war
efforts began in Afghanistan. Based on the client data that I manage, I
believe
the Marine Corps generally matches that trend. With Wisconsin's
reservists and
National Guard members being routinely mobilized, it is only a matter of
time before Wisconsin family law practitioners get involved with
military
divorce issues.
The book opens with nuts-and-bolts guidance about serving papers
on
military personnel, including specific addresses and guidance when
service must be
accomplished overseas under the Hague Service Convention. Another useful
practice pointer is Sullivan's discussion concerning counsel for the
civilian
spouse exploiting a gap in the Servicemembers' Civil Relief Act (SCRA)
in situations
in which the military spouse faces continuing proceedings, such as
visitation
or child support. The chapter devoted to the SCRA is characteristic of
how
various military-oriented matters are handled. Sullivan devotes 38 pages
to the
SCRA, including a sample stay motion, two flow charts, 10 practice tips
set
within separately highlighted blocks, and more than 90 footnotes to SCRA
citations
and other resources. My subordinate judge advocates working on their
first
military divorces quickly get up to speed by using this text.
The text particularly shines in its treatment of the handful of
legal
malpractice issues that are unique to military divorce. Perhaps the most
common potential pitfall judge advocates face is the jurisdictional
basis for
dividing a servicemember's pension. Rather than using traditional state
long-arm
statutes, a court's jurisdiction over a military pension is instead
based solely
on 10 U.S.C. § 1408(c)(4). Sullivan's detailed trial guidance for
situations
when counsel for the civilian spouse should
not take a default judgment against a spouse in the military,
or
conversely how counsel should advocate for a
military respondent following a default judgment, presents information
that alone
is arguably worth the book's purchase price.
Additional malpractice traps explored at length include: 1) the
influence
on military pension division of a Veterans Administration disability
rating
either less than, equal to, or greater than 50 percent; 2) the ease with
which
counsel for the civilian spouse can fail to protect the civilian
client's survivor
benefit plan annuity; 3) the effect of a career status bonus reduction
on
pension calculation; 4) the "20-year rule" for continued
military health benefit
coverage; and 5) the commonly misunderstood "10-year rule"
regarding military
pension eligibility.
As an added bonus, the book includes a useful compact disc with
all
sample materials and resources. Examples include the Judge Advocate
General's
military tax outline and state court treatment of veterans' disability
benefits.
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Fundamentals of Bankruptcy Law, Sixth Edition
Edited by Richard B. Levin (Philadelphia, PA: American Law
Institute/ABA, 2006). 543 pages. $129. Order, (800) 253-6397.
Reviewed by James W. McNeilly Jr.
Bankruptcy law is a complex and difficult area of the law, largely
statutory, practiced primarily by a small number of attorneys who devote
a substantial
part or all of their practice to the area. However, because bankruptcies
are filed
by businesses and individuals who often have other legal matters pending
at
the time of filing, it is likely that every lawyer, regardless of the
area of law
in which he or she usually practices, will sooner or later be involved
in a
matter that involves bankruptcy.
This book, which is intended as an overview of bankruptcy law
for
students and for attorneys with little or no bankruptcy law experience,
would be of
benefit to lawyers involved in such matters who do not regularly
practice
bankruptcy law. As an introductory resource, the book does not contain
any case cites
or forms. In keeping with its purpose, the book focuses on bankruptcies
filed
under the most commonly used Chapters of the Code: 7, 11, and 13; it
does not
cover those filed under Chapters 9, 12, or 15.
This edition is up to date, incorporating the major provisions
of the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and
contains
a subject matter index for easy reference.
The book has a unique structure, with the text in a simple
narrative style
on the right-hand pages and the relevant statutory language on the
left-hand
pages. This feature makes the book useful for even the seasoned
practitioner, who
can use it as a quick reference to find the statutes relevant to a
particular issue.
The book provides an easily understood explanation of the basic
provisions
of the Code that most often come into play in the most common bankruptcy
cases.
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The Cybersleuth's Guide to the Internet: Conducting
Effective
Investigative & Legal Research on the Web
By Carole A. Levitt & Mark E. Rosch (Culver City, CA:
Internet
for
Lawyers Press, 2006). 268 pgs. $59.95. Order, www.iflpress.biz.
Reviewed by Donna M. Jones
Are you savvy at conducting investigative and legal research on the
Internet?
The Cybersleuth's Guide to the Internet offers tremendous
assistance for
accessing vast resources on the Web. After giving a useful primer on
using the
Web, this detailed guide identifies numerous investigative and legal Web
sites,
provides specific directions for accessing their information, discusses
their strengths and weaknesses, and indicates whether they are free or
available for
a fee (per use or by subscription).
Cybersleuth describes how legal portals and
directories
offer
significant resources for substantive legal research. Legal directories
categorize Web
sites by area of law or jurisdiction and provide links to these Web
sites. Legal
portals include directories and, more importantly, provide full-text
keyword searchable databases of court cases or subject-specific articles
about an
area of law. Each of the top 10 legal directories and portals, such as
FindLaw
and Cornell Law School's Legal Information Institute (LII), are
discussed, as
are criteria for assessing the quality of legal directories and portals.
Legal and nonlegal investigative tools also are useful. Many Web
sites
help users locate people and background information and find experts and
verify
their credentials. Pretrieve.com is a meta-search site that searches
numerous
public records databases simultaneously. Typing in criteria once allows
the user
to view public records on multiple sites. Anywho.com provides telephone
listings for more than 90 million consumers and 10 million businesses
and updates
the listings every three months and monthly, respectively. MoreLaw.com
is a
litigation and practice tool that provides a free jury verdicts and
settlements
database and offers a directory of experts. The Google
Advanced Search page provides access to PowerPoint
presentations
posted on the Internet.
This informative guide is updated annually. Its extensive table
of
contents (seven pages) and index (11 pages) reflect its detail. Many
black and
white illustrations of relevant computer screens are shown but are
difficult to see.
A sharper color contrast would better serve readers.
Cybersleuth cautions that information on the Web can change
quickly.
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Heuristics and the Law
Edited by Gerd Gigerenzer & Christoph Engel (Cambridge,
MA:
The
MIT Press, 2007). 465 pgs. $40. Order, http://mitpress.mit.edu.
Reviewed by Barbara Fritschel
How does the use of heuristic techniques influence legal
problem-solving
and decisions? (Webster defines heuristic as "involving or
serving as an aid
to learning, discovery, or problem-solving by experimental and
especially
trial-and-error methods.") Does knowing which heuristics are used
in various
situations help law makers make more effective laws? Are there some
areas of
legal procedure that are not adaptable to heuristics? Under what
conditions does
using heuristics produce negative or unintended results?
This book is the work of the Dahlem Workshop, a program that
looks at a
variety of topics from a problem-oriented, interdisciplinary approach,
and contains papers written by
American and European law professors and scientists. The papers seek to
address the
above questions and indicate areas for future research.
Heuristics are viewed as a possible way for explaining actual
behavior
which may be more accurate than other methods of decision making. One
study, noted
in several of the papers, demonstrated that the "pass the
buck" heuristic (in
this case the prosecutor's or police recommendation) had a 92 percent
predictive
rate for how British magistrate judges made bail decisions as opposed to
looking
at all of the statutory factors they were to actually consider.
There are some practical implications in this mostly theoretical
work.
For example, how statistical evidence is framed affects how the
statistics are
understood. Suggestions also are offered for drafting laws; for example,
should drug labels be required to include all possible risks and side
effects or,
because you believe that most people will not take time to read that
information, should labels only highlight the most important or
dangerous risks and
side effects? Problems with using heuristics in the law also are noted,
especially that of applying a heuristic outside the environment in which
it arose.
This book is not for everyone. If you are interested in theories
of
decision making and how they apply to the law, this is an excellent
collection.
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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 and may be edited for length and clarity.
Publications available for review:
- Alive and Kicking: Legal Advice … for
Boomers! By Kenney F. Hegland & Robert B. Fleming (Durham,
N.C.: Carolina Academic Press, 2007). 286 pgs.
- Constructing Core Competencies: Using Competency Models to
Manage
Firm Talent, by Heather Bock, Ph.D., & Robert Ruyak, JD
(Chicago, IL: ABA-CLE
Career Resource Center, 2006). 133 pgs.
- • Coeur du Feu /
Fireheart, by Michael Cavendish (San Diego, CA:
Aventine Press, 2007). 94 pgs.
- From Law School to Law Practice: The New Associate's Guide, 3d
Ed., by Suzanne B. O'Neill & Catherine Gerhauser Sparkman
(Philadelphia, PA:
ALI-ABA, 2008). 450 pgs.
- How to Build and Manage an Estates
Practice, 2d ed., by Daniel B. Evans (Chicago, IL: ABA Law
Practice Management and Real Property, Trust and
Estate Law sections, 2008). 232 pgs.
- The Language of Law School: Learning to Think Like a
Lawyer, by Elizabeth Mertz (New York, NY: Oxford Univ. Press,
2007). 308 pgs.
- Law Lit: From Atticus Finch to the Practice _ A Collection of
Great
Writing About the Law, edited by Thane Rosenbaum (New York, NY:
The New Press,
2007). 320 pgs.
- Law Makers, Law Breakers, and Uncommon
Trials, by Robert Aitken & Marilyn Aitken (Chicago, IL: ABA
Litigation Section, 2007). 358 pgs.
- The People's Guide to the United States
Constitution, by Dave Kluge (Glendale, CA: Action Publishing,
2007). 224 pgs.
- A Practical Guide to Medicare
Appeals, by Daniel A. Cody & Kathleen
Scully-Hayes (Chicago, IL: ABA Health Law Section, 2007). 412 pgs.
- Raise the Bar: Real World Solutions for a Troubled
Profession, edited by Lawrence J. Fox (Chicago, IL: ABA,
2007). 300 pgs.
- Trial Manual for Defense Attorneys in Juvenile
Court, 2d ed of the Juvenile Delinquency Chapters, by Randy
Hertz, Martin Guggenheim & Anthony G.
Amsterdam (Philadelphia, PA: ALI ABA, 2008). 882 pgs. w/CD-ROM.
- Whose Monet? An Introduction to the American Legal
System, by John A. Humbach (Riverwoods, IL: CCH, Wolters
Kluwer, Aspen Publishers, 2007). 260 pgs.
Wisconsin
Lawyer
