Book Reviews
This Month's Featured Selections
Accidental Justice: The Dilemmas of Tort
Law
By Peter A. Bell & Jeffrey O'Connell (New Haven, CT: Yale
University Press, 1997). 266 pgs. Retail: $30.
Reviewed by Lisa M. Arent
In the first two paragraphs of Accidental Justice: The Dilemmas
of Tort Law, law professors Peter Bell and Jeffrey O'Connell
compare American tort law to the stuff of Stephen King novels. Although
the system has served to confront true horrors such as poisoned water,
fiery car crashes and maimed children, the authors observe that "much of
the horror of tort law that Americans have heard about recently has come
from legal machinery run amok." For example, they list the $9 million
verdict for the intoxicated person who fell in front of a subway train,
the recovery by the criminal who was injured during a break-in, and the
large judgment against McDonald's obtained by the woman scalded by
spilled coffee.
Accidental Justice is not an indictment of American tort
law. The authors' stated aim is to present all viewpoints and not to
proselytize. They succeed. Accidental Justice is a balanced and
thoroughly detailed explanation of the "horror" after the initial injury
- the frustration and anguish for the participants in the litigation of
a tort case, and for the businesses and individuals affected by tort law
in the big picture - insurers, manufacturers and consumers.
According to Bell and O'Connell, one important service of a trial is
in giving the injured person and his or her family the opportunity to
tell their stories and share their pain and grief. Accidental
Justice opens with the story of Howard Young, a young attorney.
Interestingly, Young's is a story that would be ridiculed and
trivialized on talk radio and late night television and mere fodder for
persons who believe the justice system is out of control.
Young's story begins on the day of a motion hearing. An associate at
a law firm, he faces a motion to dismiss a discrimination case that he
begged his firm to take. The court dismissed the case. Unable to cope
with defeat, Young drowns his sorrows at a local tavern. Young is
completely drunk; he stumbles to a subway station. On the subway
platform, he leans over the track to look for the train, loses his
balance and falls onto his back in the middle of the track. Rushing to
make up for lost time, the train races into the station and runs over
Young.
As a result of the accident, Young lost the use of his legs and his
mental capacities were diminished. Young's story is woven through the
authors' detailed explanation of the justice system and the process of a
tort action. Accidental Justice takes into account the
financial and emotional impact on Young and his wife and young daughters
as their tort case wends its way through the legal system.
Accidental Justice walks through the decisions to be made at
various points in the litigation process, beginning with the
considerations behind the decision to file a tort claim, including the
likelihood of success, the impact of the plaintiff's own negligence and
the choice of who to sue. Within their discussion of the twists and
turns of the litigation process, Bell and O'Connell remind the reader of
realities that are not always considered in the heated and highly
politicized debate about tort reform - the impact upon the immediate
players. They take into account the Youngs' financial dilemmas and the
emotional, physical and financial changes that flow from a catastrophic
injury.
Anyone looking for answers will not find them in Accidental
Justice. Instead, it lines up all the questions presented by the
litigation process and tort law generally. No consideration is left
unturned. It carefully explains the factors affecting the process, and
how the process works. Accidental Justice is an informative and
useful primer on the realities of tort litigation and possible reforms.
It would be a worthwhile addition to the libraries of those on either
side of the tort reform debate, and anyone interested in tort reform
generally.
Lisa M. Arent, Indiana 1992, is an
associate in the litigation department of Foley & Lardner,
Milwaukee.
The Defense (fiction)
By D.W. Buffa (New York, NY: Henry Holt & Co. Inc., 1997).
224 pgs. Retail: $20.
Reviewed by Teresa M. Elguézabal
Joseph Antonelli wins every case he tries and makes more money than
every lawyer in his firm. Still he is unhappy. If I were defending a
criminal case, I wouldn't want anyone who had read D.W. Buffa's The
Defense on the jury.
Antonelli has endless conversations with judge Leopold Rifkin,
debating thorny dilemmas that face judges and lawyers. The judge, a
wealthy transplant from New York to Portland, Ore., also throws lavish
parties.
As a former defense lawyer, Buffa most successfully presents the
voices and mannerisms of the rogues: Johnny Morel, the accused child
rapist whom Antonelli defends, at Rifkin's request; Denise, the mother
of the 12-year-old victim; and Myrna Albright, Denise's former lover who
tells Antonelli the truth. Nevertheless, Antonelli makes the 12-year-old
appear unreliable on the stand.
Years later, Johnny Morel turns up dead under circumstances that
point to Denise. Antonelli knows she didn't kill him, but he never takes
a case he can't win. After paying for someone else's crime, Denise's
body is found at Judge Rifkin's house. Since the story is predictably
unrealistic, Antonelli represents his judge friend.
That Johnny Morel and Denise were killed on anniversaries of the date
the jury acquitted Johnny in the rape trial, holds the key to the
identity of the killer(s). Immediately after Rifkin's acquittal,
Antonelli's true-love, whom he finds later in life and later in the
book, disappears and he uncovers her true identity.
The Defense reads like a writer's first novel. Giant leaps
in time and subject often leave the reader wondering what happened
in-between. At times, Buffa is more lawyer than writer, explaining
evidence rules through the internal musings of his lawyer
protagonist.
The Defense's strength is its plot; entertaining, but not
Scott Turow.
Teresa M. Elguézabal, U.W. 1979, is a
partner at LaFollette & Sinykin, Madison. Her current civil
litigation practice focuses on employment law, but she has done her
share of criminal defense.
Emergency Planning and Management: Ensuring Your Company's
Survival in the Event of a Disaster
By William H. Stringfield (Rockville, MD: Government Institutes
Inc., 1997). 306 pgs. Paper. Retail: $59.
Reviewed by Maureen W. Hoffmann
This practical and basic manual is designed for the busy
practitioner, business owner or manager. It is a concise listing of
possible threats to businesses and a blueprint for planning how any
business can prepare itself to react to emergencies.
The book's text portion contains 100 pages, with clear headings that
allow readers to skim over areas that may not apply to their specific
enterprises. More than 200 pages of supplemental appendices include a
sample emergency plan suitable for adaptation to an individual business.
Internet resources, disaster-related organizations, and emergency
planning publications are just three of the detailed lists that can be
scanned for the reader's individual needs.
The potential dangers to businesses go far beyond most people's worst
nightmares. While the author's tone is somewhat alarmist and the chances
of any given business experiencing a major disaster are rather remote,
it also is undeniable that a major interruption would be traumatic if
not catastrophic. Most business owners, including lawyers, would be
well-advised to take several of the precautions discussed in the book.
Emergency preparedness actually may prevent some accidents from
happening, and minimize the traumatic effects of any unavoidable
problems that occur.
Off-site record storage and insurance coverage are still the basic
measures that must be taken to protect a business, but the author
includes many other ideas - some easy and inexpensive, others more
complex - that could save a business faced with a disaster.
There are several incorrect page headings in the book, the table of
contents contains an area in which the subject outline does not follow
the text, and there are frequent spelling and punctuation errors
throughout. However, as a workbook in a somewhat neglected area of
business planning, this is a helpful tool that lawyers would be advised
to use and recommend to their business clients.
Maureen W. Hoffmann, Marquette 1980, is a
writer and proofreader.
Modern Theories of Justice
By Serge-Christophe Kolm (Cambridge, MA: The MIT Press, 1997).
525 pgs. Retail: $40.
Reviewed by Dianne Post
Kolm covers Modern Theories of Justice from neo
"libertarians" to utilitarianism and from Rawls to Gauthier focusing on
distributive justice. Kolm is a French economist, so he describes
economic justice in detail. He has little truck with utilitarianism and
critiques, based on moral grounds, all of the prevailing justice
theories. The book is timely in light of our present political culture
that should be struggling with these issues in terms of welfare reform,
affirmative action, poverty, and other current issues.
In each chapter on a specific justice theory, he not only critiques
the theory but by default illustrates its relevance for modern justice
and the law. His definition of act-freedom, the right to be free to act
as one chooses, includes spending (for example, no taxes) and hiring
(for example, no equal opportunity, let alone affirmative action). In
our culture these act-freedoms are limited to the basic liberties; to
vote, think, speak without regard to the actual ability of the person to
carry out this freedom (for example, no ride to the polls, no money to
attend higher education, no media that will transmit my speech), and
seem to be the basis of the current right-wing philosophy. Let us have
total freedom to do as we please and those of us who can will. For the
rest, well, that's called a free market of ideas, of speech, of acts.
And if you don't have the exchange value, you will be left behind.
On the other hand, the liberal social contract embodied in
process-freedom says we all should have the same ability to use our
act-freedom a la equal protection as we define it in our legal system.
And since we do not live in a world where we all have had act-freedom
(African-Americans were slaves; women could not vote or own property,
keep their wages or children; neither could go to school), the role of
the public sector is to equalize the process so we can get to the
act-freedom a la affirmative action.
Kolm discusses equalities, needs and miseries with the numerical
detail of the economist. He discusses freedom, the state, the free
market and the interplay of morals in it all. The present vast and
increasing disparity of wealth in this country violates and is
counterindicative of justice.
Justice is relative and is not a base upon which to build a system.
While it is an essential property of communities, it is not a universal
concept but peculiar to current Western nations. Ultimately, Kolm argues
that none of the prevailing theories of justice are necessarily based in
morals or are of first-level society concerns. But peace and dignity
require justice to be actualized and so a good grounding in justice
theory still is required.
This is not light reading. But for those of us addicted to justice,
Kolm's critique and ideas will provoke thought on the bedrock of our
profession and on the direction of our politics.
Dianne Post, U.W. 1979, practices civil
rights law in Arizona.
Notary Law & Practice: Cases &
Materials
By Michael L. Closen, Glen-Peter Ahlers, Robert M. Jarvis,
Malcolm L. Morris & Nancy P. Spyke (Chatsworth, CA: National Notary
Association, 1997). 640 pgs. Hard. $85. To order, call (800)
876-6827.
Reviewed by Arthur K. Thexton
If you are like me, you gave hardly a thought to becoming a notary
when admitted to the bar. We all trooped over to the Wisconsin Supreme
Court, then to the Western District, then to a fancy dinner with our
families, and shortly thereafter filled out the Secretary of State's
forms and mailed them in with our fees. It was a natural progression,
about which we knew as little as we did about the real life practice of
law, in those days of being 20-something.
Perhaps you wondered what that stuff about a "protest" was in the
statutes, as I did, or just how you "demand acceptance of foreign and
inland bills of exchange." I never had a clue, not being a UCC
practitioner; nor have I ever charged the lawful .50 cents for "drawing"
an affidavit.
Did you go to the clerk of court to file your seal (an optional step)
so that the clerk could certify your official qualifications, under
section 137.01(6)(b) of the Wisconsin Statutes, and have you notified
the Secretary of State of your last address change within five days of
moving, as required by subsection (6m)? Do you think that your
malpractice insurance will cover you if you notarize something
incorrectly?
The two associations of notaries, the American Society of Notaries
(ASN) and the National Notary Association (NNA), both of which have Web
sites, sell notary seals and supplies, and claim to help, support and
represent notaries nationwide. The NNA publishes a reasonably extensive
list of books, pamphlets and educational materials. It recently
published what is structured like a garden-variety law school casebook,
complete with five law professor authors, case excerpts with notes,
problems and exercises, and appendices of model codes and commentary. I
have read the entire book, and now know a lot more about notaries and
notary liability than I thought possible.
The trouble with this book is that it has no market. Law schools are
not about to offer an entire course on being a notary, lawyers are not
about to buy casebooks after they have done their time in law school,
and the book is simply beyond a nonlaw student or lawyer reader. Perhaps
that is why it is self-published instead of being offered by one of the
standard law school presses.
While it was interesting, instructive, valuable, and even in parts
fun (old cases always being fun to read for their archaic language,
especially those from Louisiana), it is not an addition to a reading
list. On the other hand, if you just want to know how to be a notary in
Wisconsin, read the Uniform Law on Notarial Acts, section 706.07 of the
Wisconsin Statutes, and don't ever notarize anything unless the person
is in front of you, and (if not known to you) presents positive
identification. There you have it, the book in one sentence.
Arthur K. Thexton, U.W. 1977, is a
prosecuting attorney for the Department of Regulation and Licensing, and
a part-time private practitioner. He invites readers' notary questions
and can be reached by email.
Wisconsin Lawyer
