Verdict: It’s a Keeper

Reading Law: The Interpretation of Legal Texts

By Bryan Garner & Antonin Scalia (Eagan, MN: Thomson Reuters, 2012). 608 pgs. $49.95. Order, legalsolutions.thomsonreuters.com.

Reviewed by Richard Binder

Reading Law is not in the same league as Wigmore on Evidence or Common Law by Oliver Wendell Holmes, but it will find its way to the bookshelves of many judges and lawyers, and deservedly so. It describes itself as a treatise, but it is also a textualist catechism full of proselytizing zeal for originalist thinking and disdain for those who think otherwise. If you love (or even like) the law, this opus has a lot of educational and entertainment value.

The book is systemized into a discussion of fundamental principles and canons of varying types, for example, semantic, syntactic, stabilizing, and so on. The authors expose 13 legal-interpretation “falsities” and provide a legal-interpretation glossary. The table of cases and bibliography are each 21 pages long. The authors do not stop at legal references. There is a quote from Alice in Wonderland, reference to a short story by Sir Arthur Conan Doyle, and a footnote reference to the Loch Ness monster.

Scalia and Garner exhibit an expansive vocabulary and phraseology. I have never seen the word “nugatory” nor was I familiar with “belts and suspenders” phrases and “viperine” interpretations. The authors might have created new words, such as “thinkability” and “tendentiously.” I agree with the authors that some legal drafters use words promiscuously, “shall” is a semantic mess, hostility to punctuation exists, and semicolons are often subjected to indignities. There is so much Latin that I think I could now serve at an old-style Catholic mass. I did not expect this book to be such a fun read.

The authors are firmly planted in the originalist/textualist approach to legal interpretation. Legislatures, not judges, enact the public will. Plain words should evoke predictable meanings. Alas, legal interpretation is rife with confusion. There are too many penumbras, emanations, and emendations in today’s statutes and court decisions. The authors believe that any alternative approach (for example, living constitution/ spirit of the law/ purposivism) undermines the certainty and predictability that are necessary for a government of laws, not men. Most interpretive questions have a “right” answer, if one would only follow the authors’ guidance.

The authors make a good case, but they seem so grumpy about it. Not every deviation from their line of thinking is a sign of being linguistically naïve or contemptuous of the democratic process. The perceived need to have a compilation of legal principles and interpretive canons itself demonstrates there will always be disputes when fact is applied to law. Even many interpretive canons are iffy, since the authors decided only to collect and arrange “valid” canons, which they tell us are one-third of possible candidates. Facts are often disputed, and laws will always contain ambiguities. It can be hard to know how ambiguous is too ambiguous, especially because a natural role of lawyers is to try to manufacture ambiguity. High stakes often ride on narrow linguistic questions.

The book makes certain points that all lawyers should keep in mind. Preparation of a legal instrument is a solemn and deliberate act that requires verbal exactitude. Judges must give both private and public texts their fair meanings. These outstanding principles should be appreciated by all. Both Scalia and Garner are eminent in the legal profession. Almost everybody is aware of Scalia’s brilliance. Unfortunately, he is, too, and he does not wear superiority well. Garner has his own achievements. I think a copy of his A Dictionary of Modern Legal Usage belongs in every lawyer’s library. The authors did not need to editorialize so many of their points, even if doing so is entertaining. Nonetheless, Reading Law: The Interpretation of Legal Texts is worth your time and effort. It will take a lot of both.

Richard L. Binder, U.W. 1973, is a senior partner with Rohde Dales LLP, Sheboygan. He has been the reporter for the Solo/Small Firm & General Practice News (formerly the General Practice News) since 1989.

Verdict: Touchdown!

Winning at Deposition

By D. Shane Read (Dallas, TX: Westway Publishing, 2012). 264 pgs. $69.95. Order, www.amazon.com.

Reviewed by Nick Zales

Are you preparing to take or defend a deposition? Then Winning at Deposition is a must read for you. Although the book is particularly useful for new lawyers, even seasoned attorneys will find something of value. Well written, concise, and easy to read, this how-to book covers depositions from A to Z. The author provides practical tips using depositions from famous cases, including ones involving O.J. Simpson, Bill Gates, and Bill Clinton. One special feature of this book is that it provides connections to online excerpts of videotaped depositions, which are analyzed and discussed in the book.

The book starts off with the basics of depositions, including who may be deposed, exhibits, protective orders, and privileges. It then moves on to taking the deposition, focusing on reasons for taking depositions and how to prepare for them. The author’s mantra is “less is more,” and he shows you how that works by using real-life examples. Next up is preparing witnesses, defending depositions, and dealing with experts.

The author then discusses problems that often arise at depositions and how to deal with them, and he describes how to use depositions at trial. The book concludes with an analysis of Bill Clinton’s deposition and grand jury testimony, and various deposition excerpts that are found at the author’s web site.

If you read this book you will be far more confident in taking and defending depositions. Each chapter concludes with a checklist summarizing the key topics from that chapter. Few other how-to books that I’ve seen pack as much punch as this one. From the most basic topics to intricate ways of dealing with witnesses, this book will give your depositions focus and purpose. I highly recommend it.

Nick Zales, Marquette 1989, is a solo practitioner in Milwaukee and a member of the State Bar of Wisconsin Communications Committee and the WisTAF board.

Verdict: Not for Me, Maybe for You

The Covert Element

By John L. Betcher (Red Wing, MN: John L. Betcher, 2011). 264 pgs. $12.99. Order, www.amazon.com.

Reviewed by Douglas L. Leppanen

James “Beck” Becker, the fictional character in this thriller, is an attorney from Red Wing, Minnesota, who seems indifferent to the practice of law, which makes this book an interesting choice to be reviewed in the Wisconsin Lawyer.

Becker is introduced “reclining in my ultra-comfortable, leather, swiveling lawyer’s chair, with my feet up on my huge mahogany desk….” That is the closest he gets to practicing law, because he never meets a client, prepares a pleading, sets foot in a courtroom, or even comments about his apparent lack of income. At first glance, Becker may seem like a self-satisfied huckster, but by the end of the story, the reader might (or might not) agree with his wife’s assessment of him as “the most capable, cautious, caring man I know of, or even have heard of.”

In between loafing in his office and being deified by his wife, Becker attempts, with some assistance, to take down a major methamphetamine operation established near Red Wing by members of a ruthless Mexican cartel. His main allies include a stereotypically stoic Native American, an easily led sheriff’s deputy, and his loving wife, who happens to be a former CIA code-cracker.

Although not lacking in wit and charm, Becker’s character is not fully developed in this, the third book of a self-published series. Perhaps more of Becker is revealed in the first two installments. Also, readers new to the series are left to speculate about Becker’s size and other physical characteristics. Late in the story, a passing reference is made to his daughters, but they must be off to college, because the reader is not told their names or ages. In fact, the author does not even reveal Becker’s age, although because he is identified as a retired military intelligence officer, readers know he must have a few years under his belt.

At times, the writing seems to mockingly emulate a hardboiled, noir-like attitude, as when Becker and his wife take turns calling each other “doll” and “babe,” or when Becker helps his Native American friend in a bar fight by flinging beer bottles at members of a motorcycle gang. And right on cue, while sneaking around one evening looking for answers, Becker is knocked unconscious by a whack to the head and ends up tied up in a strange location. Raymond Chandler would be proud.

At the end of the day, fortunately, Becker finally relaxes. After many of the bad guys are either dead or captured, but with a few questions still unanswered, Becker ends up in bed with his wife and has a tickle fight, after which she pats him on the belly and returns to reading her book. Hot!

The Covert Element is a quick read, and despite some deficiencies, is worth finishing once started. I would not order it from Amazon, but if it was all I had to read on a rainy day, I would not complain. Overall, the series is not for me, but maybe for others.

Douglas A. Leppanen, Marquette 1981, is in private practice in Sheboygan.

Verdict: A Tree Died for This?

So You Want to Be a Lawyer: The Ultimate Guide to Getting into and Succeeding in Law School

By Timothy B. Francis, Lisa Jones Johnson & Walter C. Jones (New York, NY: Skyhorse Publishing, 2012). 352 pgs. $19.95. Order, www.skyhorsepublishing.com.

Reviewed by Theresa A. Golski

As someone who tackled the law school application process with only the information I found online, I was interested in reading So You Want to Be a Lawyer: The Ultimate Guide to Getting into and Succeeding in Law School, mostly to see if there was anything I missed going it alone. Unfortunately, there is no information in this book that cannot be found online with minimal effort. Additionally, the information it does provide is superficial at best and, at worst, is outdated and misleading in the face of the abundant changes taking place in the legal job market.

The book’s main drawback is its almost complete lack of useful information. Only 36 of the book’s 315 pages contain information about applying to and attending law school. Approximately half those 36 are devoted to the application process, including choice of undergraduate major, the LSAT, law school selection, application essays, and financial aid. The exceedingly short shrift the book gives to these subjects – arguably some of the most important to prospective and new law students – leaves readers no choice but to look elsewhere for more comprehensive information.

The book briefly describes each year of law school and clinical programs and closes with an impractical overview of both law and nonlaw job opportunities, such as working in the “plush offices” of a large law firm, in the legal division of an international organization such as the United Nations, in Europe, or as in-house counsel for a major Hollywood studio.

This take on the legal job market is the book’s most alarming feature. The legal job market of the 1980s that the authors entered is not the job market today’s graduates are facing. The authors should have instead included advice on looking for positions with small- and medium-sized law firms, starting a solo practice, and using a law degree in the nonlaw job market.

The remainder of the book is, in essence, a glorified workbook. There are exercises on briefing and applying precedent and a two-part criminal law exercise that purports to simulate a law school exam. Such exercises, particularly in this quantity, are unnecessary (in fact, my law school told incoming students not to do any sort of practice problems before the first day of class) and could possibly deter people from attending law school. If I had attempted to complete the book’s exercises before starting law school, I might have been too scared to go. Much of the information is too specific for individuals who have not even had their first day of orientation yet, and I doubt proves very useful to students once they actually start classes.

Theresa A. Golski, Illinois 2011, is a volunteer attorney with the Milwaukee Bar Association.

Verdict: It’s a Keeper

My Beloved World

By Sonia Sotomayor (New York, NY: Random House, 2013). 336 pgs. $27.95. Order, www.randomhouse.com.

Reviewed by Jason Hanson

My Beloved World is the memoir of U.S. Supreme Court Justice Sonia Sotomayor, outlining her life from birth through the beginning of her career as a judge in 1992. Probably to avoid any comment on the internal workings of the federal district courts, federal courts of appeals, and the Supreme Court or on issues likely to come before the Court, Sotomayor limited her account to events occurring before she became a judge. Despite the challenges of growing up in a Bronx housing project, learning English as something of a second language, struggling with Type I diabetes beginning at age seven, losing her father to alcoholism two years later, being raised by a somewhat emotionally distant single mother, and being surrounded by school officials who set low expectations, Justice Sotomayor graduated as a high school valedictorian and summa cum laude from Princeton, earned a law degree from Yale, and now sits on the nation’s highest court.

My only criticism is that the book contains too many instances of gratuitous self-congratulation. Sotomayor’s descriptions of solving problems her professors did not realize existed, ending her marriage because her husband could not keep up with her accomplishments, her various academic and employment achievements, her work ethic, and the like, are examples. Although Justice Sotomayor seems like a warm and caring person who is willing to give credit to those who have helped form her and her career and although she has much to be proud of, these discussions distracted from an otherwise excellent story and caused me to lose interest at times.

The audiobook format of the book begins with an introduction by the Justice herself, but most of it is read by Rita Moreno, which adds an additional hue to an already colorful story.

There is no doubt that Justice Sotomayor’s life story is inspiring, and the book is generally well written. She very thoroughly describes other important people in her life, including her parents, grandmother, friends, former husband, and former colleagues. It is always interesting to learn what makes our highest judges tick. This book gives great insight in that regard, and it is worth a read.

Jason Hanson, U.W. 1998, presides over family, small claims, criminal, traffic, ordinance, probate, juvenile, and mental health cases in Dane County Circuit Court. He is also the municipal judge for the village of DeForest and the town of Windsor. 

Verdict: It’s a Keeper

From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights

By Penelope Andrews (Burlington, VT: Ashgate Publishing Co., 2012). 221 pgs. $119.95. Order, www.ashgate.com.

Reviewed by Dianne L. Post

The main question in From Cape Town to Kabul is how to create gender equality after a country has experienced violence. The author, who was born and raised in South Africa, focuses on legal strategies and a comparison between the transitions in South Africa and in Afghanistan. She looks at each country’s hierarchy of rights (or whether there even is one) and the countries’ social and cultural contexts. Of course, the ultimate problem is that even with robust legal guarantees, discrimination and violence against women persist.

Universal standards exist in United Nations declarations and treaties. While Andrews argues that one can’t generalize, she admits that women can be defined by what they share – oppression under patriarchy. Patriarchy, whether clothed in religion, custom, or tradition, is the overriding concept that keeps women enslaved.

Andrews uses “conditional interdependence” as a conceptual tool and argues that recognizing conditional interdependence will help Western feminists better understand, analyze, and assist movements in other parts of the world. But for any strategy, implementation is the biggest hurdle. Customs, traditions, and religion often hamper implementation of equality for women.

Focusing on legal issues, Andrews outlines the decisions from the South African Constitutional Court and its implementation of the broad equality provisions in the constitution. In South Africa, affirmative action is mandated and discrimination is presumed unfair so that the burden of proof is on the defendant. The South African Constitutional Court looks more at outcomes than inputs and is concerned with both equal treatment and substantive, real-world equality. But, as Andrews points out, the constitution and related decisions are far from reality for most South African women, who face serious violence and poverty every day.

In contrast, the constitutional framework in Afghanistan lacks the structures to ensure the operation of equality guarantees and also lacks the affirmative action requirement or any operational protections, such as quotas, which have proven so successful in Central America and South America.

Clearly the legal guarantees in the Afghan constitution have not brought Afghan women equality. Andrews suggests formation of a truth commission to “unearth layers of violence against women in Afghanistan,” while admitting that the Truth and Reconciliation Commission in South Africa, a highly regarded model the world over, did not adequately address women’s issues. If South Africa could not do it despite so much international hope and attention focused on the process, and such stellar human rights advocates as Nelson Mandela and Desmond Tutu involved, how could it possibly happen in Afghanistan?

Dianne Post, U.W. 1979, is an international-human-rights attorney who works primarily on gender-based violence. She has worked in 14 countries and lived extensively in five of them. She began that work after representing battered women and molested children in family law matters for 18 years.