Wisconsin Lawyer
Vol. 83, No. 5, May 2010
Computer Fraud Casebook: The Bytes that Bite
Edited by Joseph T. Wells (Hoboken, N.J.: John Wiley & Sons 2009). 349 pgs. $75. Order, www.wiley.com.
Reviewed by Jason S. Crye.
Does a day go by that one does not hear about the perils of using the Internet? From malicious programs acquired via e-mail to more sophisticated schemes like identity theft and Internet auction fraud, there seems to be no limit to what can happen in that nebulous place called cyberspace. Indeed, as the world becomes increasingly dependent on computer technology, the prevalence of high-tech crime increases. To help lawyers and nonlawyers alike understand one large and rapidly growing area of high-tech crime, Joseph T. Wells has compiled 42 computer-fraud case studies, authored by the investigators who worked on each case.
Because the authors of the respective chapters are not necessarily seasoned or tight writers, readers will find that although some of the case studies are absolute page turners, others get bogged down here and there. However, every story is fascinating in that each unravels an interesting crime, and a wide array of plots are presented. The book introduces renegade employees, mail-order Russian brides, high school dropouts, disenchanted executives, and a host of others who swindled amounts ranging from a few thousand dollars to millions. Surprisingly, many of the most successful crimes were also the simplest, for example, using an office computer to change tax information or an account number. Anyone with an e-mail inbox filled with spam messages will think twice about clicking on unsolicited e-mail after reading about the computer wizards who bombard the world with e-mails with the hopes of invading the computers of unsuspecting Internet users for all kinds of nefarious purposes.
While it is not a book filled with legal strategy or cases ready to cite, The Computer Fraud Casebook is brimming with useful information for attorneys interested in high-tech crime, and more important, for anyone who regularly uses computers. Understanding how would-be criminals target their victims and lure them in is essential to avoiding the most common computer-fraud schemes. Additionally, at the end of each chapter is a small section highlighting the lessons learned from the case and tips on how to prevent similar crimes.
The Computer Fraud Casebook would be an excellent addition to any attorney’s firm or personal library.
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Forensic Vision with Application to Highway Safety, Third Edition
By Mark Green, Merrill J. Allen, Bernard S. Abrams & Leslie Weintraub (Tucson, AZ: Lawyers & Judges Publishing, 2008). 488 pgs. w/CD-ROM. $129. Order, www.lawyersandjudges.com.
Reviewed by John A. Kornak
“There is more to vision than meets the eye,” writes author Marc Green.
Every conceivable aspect of forensic vision (the application of the science of vision to legal issues) is covered in this nearly 500-page book, the primary focus of which is the application of the science surrounding vision to issues involving fault determinations in vehicular accidents.
This book proceeds from basic science to more complicated topics. The first section is a mini-course in “basic vision.” It offers a detailed account of everything a lawyer needs to know about the vision process. It is not an easy read, but this is a complex area of science.
The second section of the book, on “clinical vision” (described as “impairments of vision due to disease and aging”), contains a useful chapter on how drugs and alcohol affect highway safety. But the bulk of the topics here are too esoteric to be of use in most forensic applications.
The third section addresses “roadway vision,” i.e, “factors affecting vision in the roadway environment.” Topics here include dirt and scratches on the windshield, headlight aim, and signal visibility. Here, again, there is a lot of detail.
Section four, on “forensic vision,” is where the rubber meets the road. The author describes forensic vision as the “application of the preceding material to accident analysis.” Topics include pedestrian-accident analysis, collision analysis, and stopping- and braking-distance methodology. Here is where you really get to learn about how to apply the dry scientific concepts to the real world. The chapter entitled “Forensic Vision Toolkit” is probably the most useful part of this book; also helpful are the appendix and the attached CD with supplemental materials.
This book offers a good starting point for highway-accident cases in which vision issues figure. Attorneys can use the book as a starting point in their investigation of litigation-related issues involving vision. The book can also be used as a guide to finding the right expert. Perhaps the best application of this book for lawyers is that it will get you on the road to asking the right questions. As we all know, 90 percent of litigation is asking the right questions. If that’s all this book offers to litigators, it is worth the price.
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Rainmaking 101: How to Grow Your Client Base & Maximize Your Income
By Patrick D. Kelly (Bloomington, IN: AuthorHouse, 2009). 102 pgs. Order, (800) 839-8640 or www.authorhouse.com.
Reviewed by Ted Kafkas
Rainmaking 101: How to Grow Your Client Base & Maximize Your Income is a helpful book for attorneys who aspire to become partners or to increase their firm’s profits. Patrick Kelly’s book covers a pivotal issue in the currently saturated and increasingly competitive legal market. Kelly starts with the premise that attorneys need more than to be smart and work hard; attorneys also need to find new clients. Kelly thinks that law schools do not teach students that if they want to fully succeed, they need to be rainmakers.
Kelly believes that successful rainmakers are made and are not born with their skills. The book states that such individuals develop traits, habits, and secrets that anyone can employ but that few people choose to develop. The book completes its mission by providing ideas and techniques for developing the requisite skills.
The book starts with the number-one secret of rainmaking: the power of relationships. On page 1, Kelly states, “The better you become at developing and maintaining relationships, the more successful you will become.” Kelly points out that the power-of-relationships concept frustrates some professionals but must be recognized nevertheless. Most of the book focuses on external relationships. It is refreshing, even if simplistic, that Kelly sees that the door to internal and external business relationships hinges on whether people know you care about them.
Rainmaking 101: How to Grow Your Client Base & Maximize Your Income contains valuable techniques, clear guidelines, interesting examples, and well-reasoned viewpoints. This short book succinctly covers the following topics: first impressions, remembering names, becoming memorable, the art of conversation, making the most of events, etiquette, providing personal services that a computer cannot, presentations, maintaining health, time management, and the relationship of failure to success. The book is well written and easy to read. In addition, chapters start with enjoyable quotes that will inspire readers to read more. Even if a reader uses only a few of the book’s techniques for refining rainmaking skills, the reader will find the book very worthwhile.
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E-Discovery: Twenty Questions and Answers
By John M. Barkett (Chicago, IL: ABA Science & Technology Law Section, 2008). 450 pgs. $119.95. Order, (800) 285-2221.
Reviewed by Justin J. Bates
In these times of technological dependency, it is often said that “computers are our friends.” However, many times nothing can seem more irritating or daunting than receiving discovery requests that cover “e-discovery.” When a litigator first comes across such a request, the first questions that come to mind are usually, “How do I respond to this?” and “What are my obligations to the opposing party?”
If an attorney practices in any category of business litigation, a working knowledge of the possible pitfalls of e-discovery will become necessary. As John M. Barkett points out in his book, currently this is true more for practice at the federal level than at the state level. However, state courts will soon catch up to their federal counterparts in the field of e-discovery.
The Federal Rules of Civil Procedure have recently been updated to include provisions for e-discovery. Once state courts and legislatures begin to update their discovery procedures, they will undoubtedly pattern their rules on federal law. This book discusses specific federal cases dealing with cutting-edge e-discovery issues that could at least be used as persuasive citations in support of a motion to compel and that may even shape the way the Wisconsin legislature amends the current discovery statutes.
One question the author addresses is the issue of full compliance, or lack thereof, with an e-discovery request. The author gives an in-depth analysis of the topic of “discovery on discovery” (when the propounding party suspects the other of withholding discoverable information) and of some of the possible remedies of which a party can avail itself when faced with noncompliance. An additional chapter provides an in-depth analysis of the possible sanctions provided for in the Federal Rules of Civil Procedure for failure to comply with e-discovery requests. When these chapters are read together, they provide a detailed road map of how to deal with uncooperative parties in the e-discovery process, an all-too-common problem.
The author indicates that the overall rule of thumb is that e-discovery should be conducted and approached with an eye toward reasonableness. As with all discovery, the goal of e-discovery is to encourage the speedy and effective disposition of litigation. This book will prove to be a valuable addition to any litigator’s library, especially because e-discovery will only become more prevalent in coming years.
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International Commercial Arbitration
By Gary B. Born (Riverwoods, Ill.: Kluwer Law International 2009). 3,303 pgs. $445. Order, www.kluwerlaw.com.
Reviewed by Roger Wiegley
Close to 500 books on the subject of international arbitration are available. Why choose International Commercial Arbitration by Gary B. Born, apart from its imposing size?
Whatever acclaim is due the author (described as “the world’s leading authority” on the book’s topic), International Commercial Arbitration certainly merits high praise. The book is exceptional in three respects. It is very comprehensive, is written from a comparative-law perspective, and is scholarly without sacrificing usefulness.
In the area of international arbitration, comprehensiveness in a treatise is essential. Legal issues must be analyzed under the applicable national law and the applicable international conventions. Often the answer to a question is unclear or unsettled. Reasoning by analogy to other jurisdictions is a challenge because the results are often different, sometimes directly opposite. It is therefore important to understand how and why the law has evolved in various countries and how different courts have interpreted particular issues. International Commercial Arbitration provides this in-depth analysis.
Unlike litigation, in which detailed procedural rules are issued by the governing court or court system, arbitration allows the parties themselves to establish rules. However, the arbitration agreement is likely to be silent on how procedural or threshold issues should be resolved. This can raise perplexing questions. For example, a clause in a reinsurance agreement between an insurance company and a reinsurer says, “The arbitrators shall interpret this Agreement as an honorable engagement and not merely as a legal obligation; they are relieved of all judicial formalities and may abstain from following the strict rules of law, and they shall make their award with a view to effecting the general purpose of this Agreement in a reasonable manner rather than in accordance with a literal interpretation of the language.” What does that mean? Can the arbitrators override national law or international convention, if they think they are expressing the parties’ intention? May a lawyer be named as an arbitrator by a party when the agreement says that each party shall select one “commercial” arbitrator and those two arbitrators shall select a third arbitrator? Is a lawyer “commercial”? Who decides? If the issue is resolved by the arbitrators, including the lawyer, after they are seated, can a court vacate the arbitration award? A thousand questions like this could be posed, which is another way of saying that attorneys in this area will invariably face many hard-to-answer questions – hence the need for a comprehensive treatise.
International Commercial Arbitration is also a work of comparative law. Whether the applicable transaction agreement is governed by the substantive laws of Sweden, England, New York, or any other jurisdiction, it is important to know which international conventions apply, which other national laws might apply to the arbitration process, and whether there are threshold issues that can be heard by a court. Increasingly, lawyers in one jurisdiction are asked to review or interpret an agreement that is governed by another jurisdiction’s laws. It is prudent to involve a lawyer from the applicable jurisdiction, but that should not be the end of one’s involvement. It is important to know what questions to ask the other lawyer, and if the answer is different than it would be in one’s own jurisdiction, to understand why there is a difference. International Commercial Arbitration helps by explaining how and why rules and conventions vary between jurisdictions.
Best of all, the work is scholarly: the author provides insightful opinions and commentary in areas in which the law is ambiguous, inconsistent, or unsettled. For example, Born discusses trends in judicial review of arbitration awards, likely to become an increasingly important topic in the future. Born provides an excellent commentary and concludes, “If properly cabined, in the manner of most U.S. and English decisions, the possibility of very limited substantive review of legal conclusions in arbitral awards is, on balance, desirable.”
Volume 2 of the treatise has an excellent subject index and a list of commentaries, treatises, and monographs; articles on international arbitration; international conventions and instruments; constitutions; national statutes and instruments; rules; and other materials. Also included are an index of arbitration awards and an index of cases.
Valuable as well is the book’s practical guidance, on such matters as handling written submissions, oral hearings, evidence presentation, deliberations, and other procedural steps.
This book is extremely relevant. In today’s global economy, trade and transactions are increasingly cross-
border. A neutral and impartial procedure for resolving disputes is essential when neither party wants to be subject to the judicial system in the other party’s home jurisdiction. Many lawyers draft, review, and interpret international arbitration clauses.
Arbitration’s benefits are widely acknowledged although sometimes overstated. In theory, arbitration is speedier and cheaper than litigation. However, as Born points out, “In reality, both international arbitration and international litigation can involve significant expense and delay, and it is unwise to make sweeping generalizations about which mechanism is necessarily quicker or cheaper.”
With the growth of international arbitration over the past 10 years, there has been a parallel growth in its complexity. Often, parties take a traditional, litigious approach to arbitration, including using extensive pleadings, protracted discovery, and lengthy witness and expert evidence. Added to this are jurisdictional questions, the potential for judicial challenges, and the risk that an arbitration award might be attacked in court on one of the narrow grounds available for vacating an award. All these potential hazards call for having International Commercial Arbitration to navigate these murky waters.
One advantage of arbitration is also one of its weaknesses – the finality of awards. Prevailing parties like finality, while their opponents argue that bad decisions should be subject to further review. Similarly, an oft-cited advantage of arbitration is that the individuals who are selected as arbitrators typically have expertise in the industry relevant to the dispute. On the other hand, expertise is not necessarily synonymous with wisdom, insight, or good judgment. Industry or commercial experience does not necessarily qualify a person to make procedural rulings about such matters as conflicts of law, scope of discovery, admissibility of evidence, and adequacy of response times to newly discovered facts. Given the difficulty of these issues, every international arbitrator should have International Commercial Arbitration close at hand.
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A. Lincoln
by Ronald C. White, Jr. (Random House, Inc.: New York, 2009). 796 pgs. $35. Order, www.amazon.com.
Reviewed by Timothy B. Daley
Issued in conjunction with the anniversary of Abraham Lincoln’s 200th birthday, this biography traces Lincoln’s life from his birth to his ascendancy to President of the United States. The wit, intelligence, political ambition, and humility of Lincoln are all revealed in this biography. I particularly related to his days as a “poor country lawyer” riding the Eighth Judicial Circuit in Illinois.
Lincoln was born in Kentucky and moved as a boy to Indiana, where he remained until 1830. He later moved to Illinois, where he ran for State Assembly in 1832 (and lost). He ran again in 1834 and was elected to the first of three terms in the Illinois Assembly. He was elected to the U.S. House of Representatives but was unsuccessful in his bids for the U.S. Senate in 1854 and 1858.
In between Lincoln’s numerous campaigns, he practiced law. Lincoln received his law license in 1836, settled in Springfield in 1837, and twice a year, in the spring and fall, would travel more than 500 miles within the Eighth Judicial Circuit. He made about $3,000 per year. In 1838, he handled his first criminal case, a murder. The defendant was found not guilty after Lincoln delayed the trial from July to October to dissipate both passion and prejudice. In one of his civil cases, Lincoln successfully represented a railroad, which then refused to pay him his $2,000 final bill. He then sued the client, Illinois Central, for $5,000 and won.
In 1849, Lincoln became the only president to ever apply for a patent, for his invention to help lift boats over sandbars or shoals. The patent was granted as U.S. Patent No. 6,469.
Lincoln was famous for his “team of rivals” in his administration. Before his election as President in 1860, he always worked with the Democrats and he intended to continue doing so after elected. His chief Republican rival for the presidency in 1860 was William H. Seward; after the election, Lincoln appointed Seward as Secretary of State.
People recognized in Lincoln a gentle leader, free from the egomania associated with most political leaders. The C-Span 2009 Historians Presidential Leadership Survey ranked Lincoln as the best president. I highly recommend this comprehensive biography of one of our great leaders.
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Criminal Procedure in Practice, 3d ed.
By Paul Marcus & Jack Zimmermann (Louisville, CO: NITA, 2009). 276 pgs. $45. Order, www.nita.org.
Reviewed by Kathleen Pakes.
As noted in the preface, Criminal Procedure in Practice provides a broad overview of the parameters of the United States criminal justice system. The authors indicate their belief that the book will be “of genuine assistance to those who are involved, on a regular basis, in the criminal justice system.” With this in mind, I reviewed this book from two different perspectives: that of lawyers who practice criminal law on a regular basis (as I do), and that of attorneys with little or no experience in the field of criminal law.
The paperback text (approximately 275 pages) is divided into 12 chapters, of which half (after an overview of the criminal-justice process) cover basic criminal procedure that is fairly standard in most states: pretrial matters, the trial, sentencing, and postconviction matters. For the experienced attorney, these chapters are far too elementary to be of assistance. For a less experienced attorney, familiarity with Wisconsin Statutes chapters 968 (commencement of criminal proceedings), 969 (bail and other conditions of release), 970 (preliminary proceedings), 971 (proceedings before and at trial), 972 (criminal trials), and 973 (sentencing) would provide a better and more comprehensive understanding of criminal procedure in Wisconsin, as would reference to the volume 9 of the Wisconsin Practice Series, which deals with criminal practice and procedure.
The other chapters in the text identify and discuss common issues related to the Fourth, Fifth, and Sixth amendments to the U.S. Constitution, such as the exclusionary rule, search and seizure, the privilege against self-incrimination, entrapment, the right to counsel, and double jeopardy. Attorneys cannot rely solely on this text’s general overview of these broad federal constitutional principles, which it does not cover in the detail a lawyer needs to competently practice in this area of law. Furthermore, attorneys must be familiar with state law in the relevant jurisdiction, especially because a state’s constitution may provide more rights to criminal defendants than does the federal counterpart.
The text’s commentaries, written by an experienced criminal-law defense attorney, offer useful strategy tips for less-seasoned criminal law litigators. The volume also contains practical references to the military justice system.
I would recommend this book for classroom use, as it presents, in easy-to-understand language, an explanation of the basic framework of criminal procedure and major constitutional issues applicable in all jurisdictions. Attorneys interested in a manual for actual litigation, however, will be better served by consulting a text related to the specific jurisdiction in which criminal law will be practiced.
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In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics
By Victoria F. Nourse (W.W. Norton & Co., 2008). 256 pgs. $24.95. Order, books.wwnorton.com.
Reviewed by Kenneth W. Krause.
The law can be a force for good, but the legal process is subject to terrible abuses as well. In a 1927 decision, Buck v. Bell, the U.S. Supreme Court upheld Virginia’s forced sterilization of a woman. Justice Oliver Wendell Holmes, Jr. declared, “Three generations of imbeciles are enough,” triggering the adoption of eugenics statutes nationwide.
By 1933, 27 states had passed forced-sterilization laws. The Oklahoma law signed by governor “Alfalfa Bill” Murray in 1931 allowed sterilization of all persons housed in publicly funded facilities who were “afflicted with hereditary forms of insanity” as well as “idiocy, imbecility, feeblemindedness, or epilepsy.” These legal abominations, according to Victoria F. Nourse, author of In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics, resulted from the “intellectual seduction” of eugenics – reckless but well-intended science gone awry.
Sterilization laws were designed to protect and enhance community health and welfare. “It was the logic of breeding,” says Nourse, “to which the apostles of eugenics turned in the 1920s to spread the ideals of eugenics.” The author says most proponents of forced sterilization were anti-democratic aristocrats punch-drunk on science.
Sterilization statutes had been challenged before 1942, when Skinner was decided, but such claims were not based on any alleged individual freedom to procreate. Nourse insists that Skinner was not a “right to privacy” case and, thus, not a legal precursor to or precedent for Roe v. Wade. Instead, during an era when notions of “rights” and “liberties” were largely defined in economic terms, such laws were usually opposed on the basis that they constituted attempted “class legislation.”
In 1935, Oklahoma passed another eugenics statute – sponsored zealously by Dr. Louis Ritzhaupt, a rising political star. This time, any “habitual criminal” (with two prior convictions) found guilty of a third crime involving “moral turpitude” would be subject to sterilization. Liquor, tax, embezzlement, and political crimes were specifically exempted. The law did not permit the jury to question whether criminal tendencies were heritable. In 1936, the state filed its test case against Jack Skinner, a chicken thief and two-time armed robber.
The jury didn’t deliberate for long. Skinner was ordered to be sterilized, pending appeals, and by the time the U.S. Supreme Court unanimously granted certiorari in 1942, only Chief Justice Harlan Stone remained from the Buck v. Bell era.
The state argued that the Court should defer to the Oklahoma legislature. The defense shifted its focus from the alleged penal (and, thus, not socially ameliorative) nature of the statute to due process and equal protection. Justice William O. Douglas, who penned the Court’s opinion, based the decision in Skinner’s favor on the statute’s arbitrary (and hypocritical) distinction between different classes of crimes. But a comment that Douglas offered as a mere “afterthought,” according to Nourse, eventually stole the ruling’s thunder. “This case touches a sensitive and important area of human rights,” Douglas professed. “Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race – the right to have offspring.” When Skinner was handed down, Nourse stresses, these words would not have been understood even to support, much less create, a constitutional right of privacy.
Nor did Skinner expressly overrule Buck. Forced sterilizations continued to be performed. But Skinner did “almost immediately change the Supreme Court’s approach toward questions of race” and, eventually, gender equality as well. Because of Skinner, the strict-scrutiny standard would be applied in 1944 to Japanese internment and in 1967 to anti-miscegenation laws.
I question Nourse’s claim that science was responsible for eugenics and forced sterilization laws. Holmes and Murray, after all, were not scientists, and Ritzhaupt was a politician who happened to possess a medical degree. The author’s contention that “it takes a lawyer, curiously, to reveal the history of science” is both incredible and conceited. Nevertheless, In Reckless Hands is a real gem: an authoritative, insightful, and well-presented history of a political disaster overcome, at least in part, by a vigorous, responsive, and ever-maturing constitutional framework capable of deconstructing and then reconstructing all but its most essential components. Let us hope it stays that way.
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Justice Examined: A Humorous Romp Through the Foibles of the Legal System
By Richard Weiss (Bloomington, IN: AuthorHouse, 2009). 229 pgs. $26.95. Order, www.amazon.com.
Reviewed by Mary C. Pfotenhauer.
We’ve all experienced it: a potential client comes into the office with a story. For that client, the story is the single most important, complex, and interesting story in his or her life at the moment. The lawyer, however, may have heard the same story dozens or even hundreds of times. Often, clients aren’t familiar with telling a story in a linear timeline, and the first telling of their story can be rambling and incoherent. But they mean well, and their story is important to them, so we sit and listen intently (or at least pretend to).
This is what it feels like to read Justice Examined. In the book, Richard Weiss has compiled about 50 “vignettes,” highlighting his experiences with the legal system during more than 30 years of practice in Massachusetts. Weiss’s desire to document and preserve his experiences is commendable. In my opinion, more lawyers should do the same, if not for publication, then at least as a personal reminder of important memories.
Unfortunately, the stories included in Justice Examined will be old hat to any attorney. Each story is presented as a buildup to a big epiphany or a punchline that ultimately presents no surprises: The judge decided incorrectly in a case! The client should have accepted a settlement offer but instead ended up with nothing! When my client asked if he could shoot his two-timing wife and her lover like he wanted, I told him he couldn’t!
To be fair, the book is not geared toward lawyers. Before every story, Weiss includes a brief explanation of basic legal terms and ideas that are (sometimes) used later in the story, presumably as help to the nonlawyer reader. And a nonlawyer might find stories about what happens in settlement conferences and arraignments to be new and surprising. There are a few gems among the stories, although these seem to be stories the author had heard from other attorneys and not his own experiences.
An issue for any reader, though, lawyer or not, may be the author’s idiosyncratic writing style. The book reads as though it was dictated aloud by the author and then not edited for style or grammar. This style of storytelling would work well in casual conversation, but it makes for difficult reading at times. Because of the writing style, and the briefness of the stories (most are two or three pages), this book would work best as a coffee table book, something to pick up now and then for a short interlude but not to read through in one sitting.
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Wisconsin Lawyer
