Book Reviews
This Month's Featured Selections
Effective Depositions
By Henry L. Hecht
(Chicago, IL: ABA Litigation Section, 1997).
$110. 784 pgs.
Reviewed by Roger Pettit
In 24 years of practice, I have run across several "how to" books
that do not live up to their billing. Just when I had convinced myself
to save my money, I had an opportunity to review Henry Hecht's
Effective Depositions. Hecht is a trial lawyer turned lecturer
at the University of California - Berkeley, School of Law, and is
involved with the Practicing Law Institute.
In addition to the chapters authored by him, Hecht has assembled a
group of experienced litigators to contribute various sections and
chapters depending upon their particular expertise. The result is not so
much a practice book as it is a treatise on the subject of preparing for
and taking and using depositions. At 695 pages, excluding the helpful
indexes, it would be incorrect to refer to Effective
Depositions as a handbook nor was it apparently meant to be. All of
the chapters are footnoted with the references in the back of each
chapter and the discussions are much more detailed both in scope and
background with effective illustrations than you would find in a book of
checklists. The use of a fictitious civil lawsuit makes the lecture come
to life. While the book is set up in treatise format, the writing is
entertaining, informative, and sometimes witty.
The book covers the entire subject of depositions from the analysis
in Chapter 2 of the importance of a discovery plan through the use of
depositions at trial. The coverage is detailed and full of useful
practice tips (from the examiner and defender viewpoints) covering the
actual taking of depositions, defending depositions, preparing
witnesses, and using documents. The book also contains chapters on
special subjects, such as videotaping, perjury, and the very informative
- especially for younger attorneys - summarizing, indexing, and
searching deposition transcripts.
While the appendixes have the obligatory deposition notice and
subpoena forms, they also contain helpful guides for novice
practitioners in questioning witnesses regarding their knowledge of
documents and the scope of their conversations. A list of objections
also is provided.
Particularly interesting was the discussion of the tactical use of
30(b)(6) (Fed. R. Civ. P.) not only to secure testimony of corporate
witnesses but as a strategy for information-gathering. The chapters on
deposing expert witnesses and the proper use of documents at depositions
are exceptional in their analysis and importance in the overall context
of the litigation.
As with any book published for a nationwide audience, the advice
given must be taken within the context of the practitioner's
jurisdiction; however, I did not find an undue amount of advice to be
contrary to Wisconsin practice.
Many practitioners, including myself, may have The Deposition
Handbook by Suplee and Donaldson (Wylie Law Publications, New
York). Effective Depositions deals more thoroughly with all of
the subjects given its textbook nature, and the practitioner would be
happy to have them both. (In fact, Suplee and Donaldson author Chapter 8
of Effective Depositions on "Substantive Preparation of the
Witness").
The overall purpose of the book is best summarized by the conclusion
to the last chapter:
"In the imaginary, idealized trial, you would never use a deposition.
On direct examination, your witnesses would testify eloquently and
effectively, never once wavering from their prior, firm grasp of the
facts. Nor would you ever impeach a witness with a deposition, because
on cross-examination, every hostile witness would readily aver to the
story told through your penetrating cross-examination. Down here,
though, you will need to use depositions at trial. In the end, the
outcome of your trial should depend on how well you prepared for it, on
whether you ably took or defended a deposition, and whether you know how
and when to use a deposition at trial."
In an ideal world, law school would be four years, rather than three,
for those who wished to become litigators and there would be an entire
course on the taking of depositions. Effective Depositions
would get my vote for the text to be used with that course. The
attorney, regardless of sophistication, who spends time with this book
will be amply rewarded with insight to the deposition craft.
Roger Pettit, Marquette 1974, is a
shareholder and director of Petrie & Stocking S.C., Milwaukee. He
limits his practice to civil litigation and is certified as a Civil
Trial Advocate by the National Board of Trial Advocacy.
Accounting & Finance for Lawyers
By Rose Marie L. Bukics and Cynthia M. Urbani
(Newtown Square, PA: Altman, Weil, Pensa, 1998). 347 pgs.
To order, call (610) 359-9900.
Reviewed by Martin A. Blumenthal
This is not a textbook on accounting and finance for the legal
profession but rather a guide on setting up and using an accounting
system for the solo practitioner or managing partner. For lawyers who
cannot balance their own checkbooks (you know who you are), this book
will introduce you to the buzz words and issues in the financial
management of a law office.
If you are using or thinking about trying QuickenTM or QuickbooksTM
for your office, this book would be a great place to start. The authors,
both CPAs, in addition to explaining accounting concepts, even suggest
various types of income and expense accounts you may want to set up on
your software.
This book is not light reading. Be prepared to study it and ask
questions of your accounting friends. For example, the material
presented on financial analysis is comprehensive. Unfortunately, this
area takes a lot of experience to get a feeling for what the numbers
tell the reader. (You won't qualify for an MBA after reading this
book.)
I would have liked to see the authors discuss the concept of
materiality. For example, when certain expenses are paid - such as
prepaid insurance or supplies - the theoretically proper way to treat
them is to set up an asset, and expense the asset as it is used up. That
means someone in the office has to physically count the office supplies
at the end of the year and make the appropriate adjustments.
Can we talk? The managing partner will not roll up his or her sleeves
and inventory the firm's legal pads and pencils come Dec. 31. Further,
even if the firm's total billings are merely $50,000 for the whole year,
will a couple of hundred dollars worth of inventoried supplies make a
big difference in the net income? Of course not. This is called
materiality. The effort to conform to strict theoretical concepts
sometimes far outstrips the benefits derived therefrom.
The authors also neglected to discuss Roth IRAs in the chapter about
retirement. This is a popular topic for financial planners and much ink
has been spilled in figuring out if these new savings vehicles make
sense for an individual.
I also take issue with the authors' statement on page 114 that,
"Unlike other fixed assets, land generally appreciates, not depreciates,
over time. As a result, land is never depreciated." Accounting theory
teaches that only assets with a measurable useful life are depreciated.
Since land never is really "used up" (mining operations are another
matter) it cannot be depreciated.
Objections aside, the bottom line is this: Anyone who needs to
understand accounting and finance fundamentals will do well to study
this book.
Martin A. Blumenthal, IIT
Chicago-Kent 1981, is a CPA and practicing attorney in Illinois and
Wisconsin.
Democracy at Dawn: Notes from Poland and
Points East
By Frederick Quinn
(Texas A&M University Press, 1998).
250 pgs. Retail: $29.95.
Reviewed by Lawrence G. Albrecht
What exactly do we mean by the"rule of law"? How is a democratic
state established? Following the demise of the Soviet Union and the
resultant political upheavals in Central and Eastern Europe and in the
satellite states of Asia, these fundamental problems confront the newly
formed legal cultures throughout the region. The emerging democracies in
these newly independent states must accommodate deeply divided,
antagonistic, and often autonomous, economic, religious, ethnic and
cultural interests that share few common institutions. In these
countries, an open society may denote a freely segregated society. How
to accommodate and integrate fractious, competing interests into a
credible legal system is the quest.
To experience these cultures and their vibrant, detail-remembered
histories is endlessly fascinating. Frederick Quinn's travel notes
record dozens of encounters, from Warsaw to Kazakhstan, with individuals
and nascent constituencies dedicated to building legal cultures. His
purpose is to report and analyze the complex array of institutional
difficulties these countries face in the transformation from command
economies in repressive states, where law was an instrument of control
and terror, to open societies supported by positive law and enforceable
commercial and human rights.
Quinn is a legal historian who holds a Ph.D. in history and has
served as a career Foreign Service officer. His academic expertise and
travel experiences have served him well in his reporting and contextual
analysis. It is impossible to approach or understand the disparate
political and economic realities in this region without a historian's
perspective on the competing ancient mythologies vying for current power
and control. Traveling with colleagues from the Organization for
Security and Cooperation in Europe (OSCE) as head of a rule of law
program, Quinn participated in drafting constitutions, organized legal
seminars on the paramount need for an independent judiciary, and talked
with everyone he encountered regarding their deep-rooted fears and shaky
hopes that the rule of law will bring true stability and prosperity.
Although his work lacks a detailed overriding thesis, his experiences
introduce and illustrate the hopefulness and the complexity inherent in
the legal transformation process. Long after the constitutional
scholars, omniscient Chicago School economists, and other pundits on
arcane legal topics have had their say, history's deep divisions will
continue to exert antidemocratic pressures that undermine the due
process and equal protection foundation of the rule of law.
As Quinn reports, issues of state security and protection of free
markets predominate the legal agenda. While human rights require
genuflection by all, enforcement of positive rights lags far behind as a
priority - which is understandable given the historical absence of
independent judiciaries and the inherent civil law limitations on
judicial power. Perhaps our own common law legal history presaged this
unfolding of events in Eastern Europe and Central Asia since common law
protection of economic rights developed and preceded judicial
enforcement of civil rights by nearly a century, until "activist" judges
exercised increased powers of constitutional and statutory
interpretation and policy analysis.
Legal education reforms underway in these new legal cultures will
prepare skilled private attorneys to handle individual rights cases and
creatively expand the domain of human rights law in an orderly manner.
(And, inevitably, defense attorneys will learn how suitable for
transplanting are our doctrines of absolute or qualified immunity and
other high procedural barriers that frustrate state accountability to
its citizenry.) Quinn, however, remains hopeful that by building
constitutional systems of law that reflect the contextual convergence
and blending of civil law and common law traditions, enforced by
independent judiciaries, these countries will accommodate competing
interests and build democratic societies in which individual rights, and
the market rights of corporations and other business associations, are
both pronounced and enforced. And, as he concludes, these heroic efforts
against the powerful experience of history deserve our active
professional support.
Lawrence G. Albrecht, Valparaiso
1973, is a shareholder at First, Blondis, Albrecht, Bangert &
Novotnak S.C., Milwaukee. He taught at the University of Bucharest
School of Law in 1997 and consulted at several law schools in Romania
and Bulgaria on behalf of the ABA Central and Eastern European Law
Initiative.
The 1040 Handbook: A Guide to Income and
Asset Discovery
By Jack Zucker-man, William Wolf, Peggy L. Podell, and David
M. Franklin
(Chicago, IL: ABA Family Law Section, 1997).
$74.95. 96 pgs.
To order, call (800) 285-2221.
Reviewed by Jeffrey W. Hart
In the movie "Jerry Maguire," Tom Cruise's client chants a familiar
message: Show me the money! The 1040 Handbook offers a similar
message for attorneys seeking to discover whether a party is hiding
assets or income: Show me your tax returns!
The authors use a hypothetical divorce proceeding to explain how
attorneys can use tax returns to discover hidden assets and income. This
concise guide, consisting of approximately 30 pages of text and numerous
forms, provides useful information for all attorneys - regardless of
their practice area - unfamiliar with income tax returns, forms, and
schedules.
The authors explain each form's function and the supporting
documentation required for critical entries. By focusing on specific
forms and line items, an attorney can use a tax return and the
supporting documents as a road map to locate hidden assets and income.
The handbook explains how to request the necessary documents, start the
investigation and, in complex cases, provide a "forensic accountant"
with the information necessary to reveal concealed assets and
income.
Enforcing a judgment or seeking to discover hidden assets can be a
daunting task. Opposing counsel may refuse to provide the documents
necessary to determine whether a party is concealing assets or income.
Understanding the function of tax forms and the documents supporting
each entry is important to support a discovery request. Tax returns also
may be used to show ownership and control and may serve as a basis for
impeachment. Given the wealth of information included in many returns,
attorneys should routinely seek copies of them.
The authors are no doubt working to incorporate the changes of the
Taxpayer Relief Act of 1997 into the next edition. The next edition also
should encourage attorneys to use IRS Form 4506 to obtain (with the
taxpayer's consent) a free summary of a taxpayer's returns for the last
four years. The summary will verify that the return provided actually
was filed and not subsequently amended. The authors also should explain
that clients can use IRS Form 211 to collect a finder's fee of 10
percent (up to $100,000) for information leading to the collection of a
delinquent tax liability. After collecting your client's judgment, let
the IRS join the chorus: Show us the money (and your records)!
Jeffrey W. Hart, Seattle 1992, is
admitted to practice before the U.S. Tax Court and is a member of the
American and Wisconsin Institutes of CPAs. He is an associate in the
business section of Weld, Riley, Prenn & Ricci S.C., Eau
Claire.
Leveraging the Law:
Using the Courts to Achieve Social Change
Edited by David A. Schultz
(New York, NY: Peter Lang Publishing Inc., 1998).
354 pgs. $32.95.
Reviewed by Debra L. Quentel
This is an interesting collection of eight essays that explore the
impact of the courts on fostering change and reform in our society.
Written, for the most part, by professors of political science (and
nonattorneys), the essays are refreshing and engaging to read.
The book is part of a textbook series to teach undergraduate students
about the multi-disciplinary areas of law and politics. This particular
volume evolved from two sources. Many of the essays were prepared for
the 1995 American Political Science Association Convention panel on the
courts and social change. In addition, the essays grew out of a series
of issues raised by debates between two leading political scientists,
Gerald Rosenberg and Michael McCann.
Although designed as a textbook, the book is interesting for anyone
involved in the law or who thinks about the "big picture" of law in our
society. Leveraging the Law is a wonderful excuse to look at
some U.S. Supreme Court decisions over the last 50 years and examine
their impact, if any - as some essayists argue, on society.
Each essay focuses either on a few U.S. Supreme Court cases or case
studies involving legal issues. The essays analyze those cases against
the paradigms established by the Rosenberg/McCann debate. The essayists
look at decisions in various areas of the law, including school reform,
bus boycotts, abortion, and judicial efficacy. Each essay carefully
establishes a method for collecting information on the impact of change
resulting from each decision. Also, the essays discuss the link between
the media and the courts.
I enjoyed the book because it required me to consider the law over
decades. I did not agree with all the authors' methods, or with all
their conclusions; however, I did find myself engaged in an interesting
theoretical debate while reading the essays. Because the book is a
collection of essays, it can be read in stages. The editor nicely
summarized each essay's theme in the first chapter. Each chapter is
self-contained (although there are references to the other essays) and
includes a detailed list of endnotes and bibliography.
Debra L. Quentel, U.W. 1988, works
for the Center for Computer-Assisted Legal Instruction as director of
curriculum development and associate counsel.
The Time of the Gypsies
By Michael Stewart
(Boulder, CO: Westview Press, 1997)
Retail $15.96. 320 pgs.
Reviewed by Timothy McAllister
The Time of the Gypsies is a well-written socio-economic
study of the Gypsy, or Rom, culture in Communist Hungary during the
mid-1980s. Michael Stewart immersed himself in the Gypsy ghetto
existence to gain understanding and psychological insights that flush
out the drier economic data.
Rom cultural identity is based upon language, the projection of an
illusive image of "brotherhood," and marginalized capitalism. The Rom do
not make claims to a territorial homeland. Rather, they substitute
linguistic affinity to establish and maintain their culture. The
male-dominated society is centered upon the brotherhood of the Rom. This
is a supposedly nonhierarchical group identity in which the past is
"forgotten" and the present lived for and shared. Living upon the refuse
and foolishness of the peasants is preferred to wage-labor. The Rom
raise animals, particularly horses, for profit and trading purposes.
Cultural idiosyncrasies, such as the Rom aversion to bathing ("sitting
in one's filth"), also are discussed.
The communist government of Hungary attempted to assimilate the Rom
through "forced" wage-labor and schooling. The government believed, as
did the majority of the Hungarian Magyar population, that an "honest
day's work" was essential to the individual and their culture. Thus the
Rom were put to work, but in the lower-paying factory positions. The
mutual distrust and misunderstanding of the values of the Rom and Magyar
cultures perpetuated the marginalization of the Rom.
What can be viewed as a form of "affirmative action" impeded the
assimilation by forcing diverse cultures to act as if their values were
the same. The failure of the Rom and Magyar cultures to mesh cemented
the ghettoization of the Rom and their secondary status. This was
furthered by the majority Magyar view that the Rom were cultureless and
the establishment of special "Schools for the Educationally Subnormal"
in which Rom children were educated.
The Rom aspirations for the good life and free lunch culled from the
peasant Magyar clashed with the Magyar penchant for diligence and
thrift. In reality though, the two cultures were interdependent in that
each provided the goods and services that the other was ashamed to
perform.
The text is enhanced by charts, black and white photographs,
translated songs to illustrate cultural points, a glossary of terms, and
plenty of footnote documentation. Overall the text is well-done, but the
specialized topic will limit the number of readers.
Timothy McAllister, U.W.-Oshkosh
1997 Master of Public Administration, is employed by the Department of
Corrections at the Wisconsin Resource Center.
Wisconsin Lawyer
