Book Reviews

• Privileged Communications in the Delaware Corporation: Corporation and Commercial Privileged Litigation in the Delaware Courts
• Tipping the Scales of Justice: Fighting Weight-Based Discrimination
• The Never-Ending Divorce: A Handbook for Clients
• Marketing and Legal Ethics: The Boundaries of Promoting Legal Services

• To review a book

This book sets forth the decisional history of the Delaware courts' interpretation of the attorney/client privilege. Due to Delaware's reputation and perception as an excellent forum for resolving corporate issues, and because Delaware is home to many Fortune 500 corporations, litigation is brought frequently in that state.

The book provides a detailed history of the attorney/client privilege, including references to the common law of England, and Delaware's first constitution of 1776. Readers learn that the privilege was codified in 1980; however, when Delaware adopted the Federal Rules of Civil Procedure, the privilege and the discovery rules did not mesh, and thus, the courts were forced to make many significant decisions that still are cited today.

The author does an excellent job of going through Delaware decisions in which the Delaware courts had to examine the incompatibilities of the privilege and liberal discovery rules. The book discusses the work product doctrine and what factors the Delaware courts have considered when rejecting or recognizing exceptions to the protection of work product.

When sensitive fiduciary relations are at issue, such as when the corporation or its directors dispute other directors or fiduciaries, the attorney often is in a compromising position. Although Delaware law on this is somewhat scant, the author does a nice job of analogizing the situation to similar situations, including disputes such as whether the privilege had been waived and what a shareholder must do to demonstrate enough evidence to obtain disclosure of privileged information.

The book addresses the waiver of the attorney/client and work product privileges and the exceptions to the application of the privilege. The book explains the two-step analysis that the Delaware courts follow when deciding whether communications in furtherance of a crime or fraud are adequate to overcome the privilege. Several additional exceptions to the application of the privilege are examined, such as the breach of an attorney's ethical responsibilities and when an assertion of ineffective representation is made. Although these exceptions are used infrequently, they shed some light on other exceptions that can be asserted. The book discusses the communications between the attorney and the witness and the exception that allows the attorney and the client to discuss strategies.

In the end, the book turns to how Delaware continually has recognized that the party asserting the attorney/client or work product privilege holds the burden of establishing its application. Nonetheless, once the privilege is established, the burden is on the party arguing for an exception to the privilege. In sum, the book is a wonderful tool for the business litigator to get an all-inclusive background and understanding of both the history and the developments of privileged legal communications.

The business litigator who deals with corporate governance should consider reading this book to develop a better understanding of the history of the privilege and so that he or she may better predict how the Delaware courts will continue to balance and consider different concerns that continue to arise.

Thomas L. Doerr Jr., Marquette 2000, practices in Milwaukee at Beck, Chaet, Molony & Bamberger.

In perhaps the first and only authoritative book on fat prejudice, attorney Sondra Solovay paints a disturbing picture of widespread mistreatment of the obese and urges extending current law to remedy these problems. Proclaiming "fat discrimination" as the civil rights issue of the millennium, she calls for increased legal protection, detailing a litany of abuse inflicted upon fat people by peers, teachers, employers, and even judges. She disputes the prevailing notion that fat people's size is their own fault, saying scientific evidence shows that obesity is not within the individual's control. Because body size may be immutable and not reflective of a person's abilities, she argues that antidiscrimination law should apply. She touts progress against fat discrimination, including laws passed in Michigan and California that specifically prohibit discrimination on the basis of weight in employment and housing.

The author recommends applying disability laws to the obese; a controversial stance that puts her at odds with other so-called fat-rights advocates who resist using the disabled label. After examining several cases involving the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, she concludes that the courts' treatment of larger-sized people under these laws too often is inconsistent, confused, and tainted by fat prejudice. She proposes a clearer, more logical way of categorizing and analyzing these cases, and reiterates how destigmatizing obesity helps correct pervasive misperceptions of fat people's abilities.

The book's strength lies in its focus on education and reform and the human face put upon the problem of fat prejudice. However, even the author's extensive use of footnotes can't compensate for the dearth of legal materials involving weight discrimination. The appendices list organizations devoted to fat-rights advocacy, recommended readings, samples of antidiscrimination laws, and excerpts from the ADA. But the paucity of published opinions reflects the reason why the book is a "tool of legal scholarship" as opposed to a "handbook" - the still novel issue remains largely confined to academia and talks shows, not the actual practice of law. In our progressively heavier society, fat people may be closer to tipping the scales as the majority, but one wonders whether protection against fat prejudice will ever become the prevailing legal norm.

Lucy Hawley Terry, Denver 1988, has been a member of the Wisconsin bar since 2000.

Most often, divorce is a very unpleasant and painful experience. Sometimes, it is also extremely difficult. The Never-Ending Divorce is an excellent resource for the client who experiences a difficult divorce. This ABA Family Advocate handbook provides nine articles that offer insights and practical suggestions. Five articles cover relationships, including "Managing Your Difficult Ex-Spouse," "Emotional Uncoupling," "Put Your Kids First," "Succeeding as a Stepfamily," and "Play It Safe." Four articles cover property and finances, and include "It's Not Over Till It's Over," "Flex Control Over Your Finances," "What Happens When Your Ex Files Bankruptcy?", and "What Will Be." The theme that runs through each is also the subtitle of the handbook: "How to step away and stop fighting."

Difficult divorces make it very hard to step away and stop fighting because they seem endless, occurring when at least one (ex-)spouse is unable to completely separate emotionally and psychologically from the other. Inability to let go and move on becomes fuel for contentious interactions. Fortunately, the other (ex-)spouse can use this handbook for valuable strategies. "Managing Your Difficult Ex-Spouse" is well written, instructive, and concise. Complete with a "Take Charge" list, its sections include "why people hang on," "predicting problems," "handling danger," and "positioning for success." "Put Your Kids First" offers wise advice to divorced parents from two perspectives. "A four-step approach" provides guidance for effectively using the legal and extra-legal processes.

"Do's and Don'ts for Divorced Parents" offers 18 suggestions for fostering positive parent-child relationships, while reducing conflict between parents. "Play It Safe" arms (ex-)spouses with "legal and practical remedies" for preventing domestic violence. It also provides a plan and cites that "75 percent of domestic violence-related emergency room visits occur after separation."

"It's Not Over Till It's Over" emphasizes "Drive a hard bargain, follow through on enforcement, and know when to stop." It is representative of the property and finance articles. Each is detailed and methodical. Each emphasizes that timely follow-through is critical and provides checklists or online resources. They cover property, investments, tax planning, and more in a clear, understandable, and nonintimidating manner. This very instructive handbook includes a bibliography and "Client Satisfaction Questionnaire." It leaves clients in difficult divorces well equipped.

Donna M. Jones, U.W. 1978, is a member of the Participation of Women in the Law Committee and a past member of the State Bar Board of Governors.

Hornsby, the author, is staff counsel in the ABA's Division for Legal Services and has spent a good deal of his professional career working and writing about legal ethics and marketing.

Written in a nonmoralistic tone, the book's substance is presented in the first 153 pages, which are broken down into 11 chapters. The remainder is made up of appendices and an index. The points made are heavily cited, using chapter endnotes.

This book is extremely dry. Illustrative examples are offered in a concise and detail-shy fashion, and the writing is nearly bereft of humor, all of which is good from the standpoint of efficiency and maintaining focus, but makes for more labored reading.

This book is clearly intended by the author and publisher to be of valuable use to attorneys and scholars of legal practice everywhere in America, but it is not of such value, nor could it be, con-sidering its purposely national perspective. I would highly recommend this book only to those statistically few members of the legal profession who are in a position to influence policy in the area of legal services marketing. Law professors also may find it to be of interest, but not as a textbook for their students. Lastly, those involved in resolving charges of unethical conduct in the area of legal services marketing may find it to have a soft, relatively diffused value as they attempt to find support for the acceptability of their arguments from the policies of the various states. I would expect typical legal practitioners, though, to find the information in this book to be a dangerous and pointless distraction from the specific rules of their own state bar.

Raj Kumar Singh, Valparaiso 1999, is a liaison between a multistate petroleum conglomerate and its numerous outside counsel.

Wisconsin Lawyer