Book Reviews
This Month's Featured Selections
The Search for Truth:
An Introduction to the Jury Trial Practice
By Cornelius P. Callahan
(Chicago, IL: Sextant Press, 1998).
288 pgs. Retail $35.
Reviewed by Brian W. Blanchard
Keep yourself in the background. Get enough sleep. Avoid the
appearance that a court ruling has hurt you. Take a pass on any cross
examination that does not promise solid points. Never complain to a jury
about how hard you have worked on the case. Be sure your witnesses
understand your theory.
It's all been said before. But the author of this unpretentious book
with the pretentious title does not strive for originality. Instead,
Cornelius P. Callahan has written a trial practice primer as an
accessible sampling of the aphorisms and rules that trial advocacy
instructors and mentors have offered to generations of young
lawyers.
An Illinois attorney since 1958, Callahan has primarily represented
railroads in the types of cases that frequently cannot be settled in
advance of trial.
Reading this book is like sitting down for a long lunch with an
experienced trial attorney who is in an extremely expansive mood. While
most of it is familiar territory to anyone who has even watched an
entire trial, much is worth hearing from Callahan's perspective.
The author includes practical advice for dealing with a trial's
impossible time demands, while still presenting to the jury "a sense of
confidence and equanimity." He suggests getting exercise, reading the
newspaper, and generally keeping a foot in the "real world" to the
extent possible.
Though heavy on war stories and apocryphal tales (punctuated by corny
one-liners), Callahan occasionally steps back to name important
concepts. For example, he borrows "semantic incursion" from diplomacy to
describe an opponent's inevitable attempt to plant in the jury's
collective mind substitutes for your key terms.
Callahan also has a nice take on the "apparently superficial" but
often "more effective" preparation of a witness whose testimony does not
involve complicated issues. Callahan briefly prepares these
witnesses:
"You were present, you know what happened; the attorney cross
examining you was not present and has no direct knowledge of what
happened. You were there; he wasn't. Therefore, simply continue to tell
the truth on cross examination. There is nothing that can be asked of
you which you will not be able to answer. Any improper question, of
course, I will object to."
Two features of The Search for Truth require note. First, it
is heavily oriented toward personal injury suits against railroads.
Callahan justifies this on ground that "more than 90 percent" of all
civil jury trials are personal injury claims. That may be so, but the
absence of references to a broader range of business, environmental, and
criminal litigation limits the book's value.
Second, large portions the book consist of unedited, barely annotated
trial transcripts from a particular Federal Employers' Liability Act
case that Callahan defended in Illinois state court in 1980. The reader
is left to do the hard work of mining many pages of transcripts for the
most illustrative passages. Few readers will be inclined to do so.
Nevertheless, The Search for Truth is a well-intentioned
guide for the beginning trial attorney. The author's thesis can hardly
be repeated too often: The respect of a jury is earned only through an
honest, low-key presentation of relevant facts. If it is a choice
between this book and a guide by an established trial expert such as
Steven Lubet, Thomas A. Mauet, or James W. McElhaney, go with Lubet,
Mauet, or McElhaney. If a newer lawyer also has room for an additional
small set of reminders, he or she may want to add this book.
Brian W. Blanchard, Northwestern
1989, is an associate with Quarles & Brady in Madison. He was a
criminal prosecutor with the U. S. Attorney's Office in Chicago from
1990-97.
Freedom of Speech in the Public
Workplace:
A Legal and Practical Guide to Issues Affecting Public Employment
By Marcy S. Edwards, Jill Leka, James Baird & Stefanie
Lee Black
(Chicago, IL: ABA State & Local Government Law Section, 1998).
Soft. 200 pgs. Retail $74.95.
Reviewed by Timothy J. McAllister
Arguments exist that the First Amendment right to freedom of speech
has been carried too far and that "speech" has been viewed in an overly
liberal context, but since the 1892 ruling in McAuliffe v. Mayor of
New Bedford the U.S. Supreme Court has held that the freedom of
speech protection for public employees is different than that afforded
the general populace.
A series of rulings has led to balancing tests (Pickering v.
Board of Education, 391 U.S. 563) that attempt to rectify the
rights/privilege issue. Public employees are not devoid of freedom of
speech rights. Rather, their speech, which may carry a greater impact
than nongovernmental individuals (particularly the speech of
policymakers), is balanced by the state's interests.
Public versus personal speech rights need to be balanced. The
specific facts of individual cases determine the public/private issue.
Speech motivated by self-interest is far less protected than speech
exposing corruption and waste. Safety issues may be public or private
depending upon circumstances. Gossip is not a protected form of speech
for public employees. Speech that is completely unrelated to public
employment is most likely protected, depending upon the context.
For public employees, particularly those in the educational and
public safety fields, a major issue is the context of their speech. It
has been said that a spectrum of First Amendment rights exists, from
professors to police officers. While professors expound upon potentially
controversial thought to make a theoretical point, the speech of police,
fire department, and corrections personnel is ruled by discipline and
the authoritarian necessity of maintaining an esprit de corps.
The text addresses the problem of the variance in decisions made by
circuit courts that the U.S. Supreme Court has left unresolved. Judge
Scalia is reported to have stated that "uncertainty breeds litigation,"
and this is certainly going to be the case as the imprecision of the law
is narrowed.
The authors do a reasonable job of covering the issues of the U.S.
Supreme Courts' interpretation of the First Amendment, the roles of
content and context, and balancing competing interests. Most of this
information is common knowledge to the educated public employee, and
certainly to attorneys who work in public employment relations.
Freedom of Speech in the Public Workplace: A Legal and Practical
Guide to Issues Affecting Public Employment is a decent enough
guidebook for seminars or a primer for pre-law students, but its
mediocre index and table of cases (which needed to be supplemented by
stapled papers tucked into the text) are obvious shortcomings.
Tim McAllister is employed by the
Wisconsin Department of Corrections at the Wisconsin Resource
Center.
The Internet Fact Finder for Lawyers
By Joshua D. Blackman with David Jank
(Chicago, IL: ABA Law Practice Management Section, 1998).
157 pgs. Retail $39.95.
Reviewed by Stephanie L. Melnick
Publication of the Starr Report online tested the Internet's ability
to quickly make information available worldwide. The Internet passed the
test. After this most recent demonstration of the Internet's potential,
lawyers should recognize its value as a research tool.
Using the Internet can provide Wisconsin lawyers with access to
seemingly unlimited information, from locating experts to searching SEC
filings, to finding opposing counsel's email address. On the other hand,
finding useful material on the Internet can be time-consuming and
frustrating. In The Internet Fact Finder for Lawyers, Joshua D.
Blackman and David Jank attempt to guide lawyers through the Internet
maze. Although a potentially useful resource for the beginner, the book
is not for the advanced Internet user. More importantly, the rapid
technological advances of the Internet make the book, published only
months ago, seem dated. For example, although the authors list Web sites
that appear useful, the constant changes on the Internet make finding
those sites now difficult and sometimes impossible.
Part one of the book instructs lawyers how to conduct Internet
research. The authors begin by offering a summary of research methods
generally, including definitions of primary, secondary, and tertiary
sources. Chapter three discusses research methodology, including
discussions of what type of information is available on the Internet and
when to use the Internet for research. For anyone familiar with the
Internet, part one of the book is review.
The authors next discuss accessing and navigating the Internet. For
the novice user, this discussion of the Internet's structure is helpful.
For example, the authors dispel the common misconception that only the
speed of the modem determines the speed of the user's Internet access.
The last chapter in part two covers "Navigating the Net" and describes
Web browser features, compares search engines, and defines electronic
bulletin boards and electronic mailing lists. The authors include many
useful tables, for example, a detailed comparison of search engines
helps when deciding which search engine is best suited to a specific
type of research.
Part three of the book is most useful. This section includes how to
find news, experts, people, companies, "competitive intelligence," and
medical information on the Internet. The most significant problem with
these chapters is that many Web sites listed have been moved or
eliminated. Also, conspicuously absent from this section is a chapter
describing how to find statutes and case law on the Internet. Although
the authors may have concluded that the Internet is not the best source
for legal research, they did not even list state bar or U.S. Courts of
Appeal Web sites, generally sources for such information.
Overall, The Internet Fact Finder for Lawyers is an adequate
Internet guide for lawyers who are novice Internet users. It also
includes lists of Web sites lawyers might find helpful. However, despite
the authors' claims, reading the book is no guarantee that you will find
what you are looking for on the Internet.
Stephanie L. Melnick, U.W. 1994,
concentrates in business litigation and appellate practice at Melnick
& Melnick S.C., Milwaukee.
Strengthening Your Firm: Strategies for
Success
By Arthur G. Greene, Editor
(Chicago, IL: ABA Law Practice Management Section, 1997).
175 pgs. Retail $74.95.
Reviewed by Jason T. Studinski
This book offers a practical guide "designed to assist the small and
medium-sized firms in recognizing and implementing the changes they need
to make in order to continue to survive and thrive." Strengthening
Your Firm: Strategies for Success, the second in a three-volume set
discussing law firm operations, identifies common problems experienced
by law firms and recommends clear and concise solutions.
The contributors do a particularly good job of identifying the
competing influences that can destroy firm unity and alienate productive
people within the firm. The challenges of responding to clients' needs
in a competitive legal market require firms to contend with financial
challenges, staffing needs, institutional vision, compensation schemes,
and leadership issues, which previously were not cause for concern.
The editor recommends a flexible approach to firm governance and
operations that features several important components. First, the firm
needs the right leaders to define, instill, and perpetuate a shared firm
vision. This guiding principle serves as a source of unity, even in
divisive situations. The firm members must then have the discipline to
practice in conformity with their mission statement, which may require
subordinating individual autonomy in furtherance of firm goals.
Second, the contributors emphasize he importance of communication in
furthering inclusion for associates and staff. This consists of clearly
defining expectations, listening to recommendations for change, and
conducting meaningful reviews where positive feedback and constructive
criticism can be exchanged. Improved communication can increase
efficiencies resulting in greater productivity, all for the same
cost.
Third, the firm must acknowledge, solve, and develop systems to
prevent personnel, financial, and partner disputes. For example, if a
particular partner fails to perform up to standard, the firm must not
blindly defer to the partner's autonomy, but must instead hold the
partner accountable. Such measures previously would have been poorly
received. However, given the new marketplace, these measures are
necessary. Moreover, firms should institutionalize methods for dealing
with such recurring problems to avoid claims of disparate treatment
among attorneys.
This book offers a concise guide to dealing with the unique
challenges facing law firms in today's competitive marketplace. It
recommends what would have been bold initiatives several years ago, but
which today have become central tenets for developing, maintaining, and
perpetuating a thriving law practice.
Jason T. Studinski, U.W. 1998,
practices law in Madison.
Why Lawyers Behave as They
Do
By Paul J. Haskell
(Boulder, CO: West-view Press 1998).
160 pgs. Soft. Retail $18.
To order, call (303) 444-3541.
Reviewed by Jami S. Hubbard
After reading this book I still don't know. I did not find the
profound, psychological explanation that the title promises. In fact, it
took me about 20 sittings to force myself to finish the 160-page
book.
When I did finish it, however, I appreciated the daunting task that
Mr. Haskell had undertaken - to analyze the shortcomings of our system
of professional rules, which allow attorneys to transgress into morally
gray waters, and to offer suggestions for improving the rules (that is,
making the rules more stringent where appropriate).
This book generally reads like a law school professional
responsibility course book. It is laced with a variety of sample ethical
conflicts from all practice areas and with well-reasoned explanations of
what sort of attorney conduct is allowable and why. Unfortunately, the
sample problems raised by the author are mild and, in some cases, so
tame that prior to reading this book I would not have given them a
second thought. For example, in one scenario the client tells his
attorney that, although many years have passed, he still owes the
plaintiff a large sum of money for which he's being sued. Haskell then
questions whether it is appropriate to raise the statute of limitations
as a defense when it's the sole defense available to the client.
Personally, I don't know a single attorney who would hesitate to raise
this defense.
Additionally, if the author truly intended for the rest of the world
(including clients) to comprehend the rules of professional
responsibility, he has missed the mark. The Grisham-fed general public
just does not have the attention span, nor does it care enough about the
ethical rules that govern attorneys, to dedicate a serious effort to
reading and contemplating the issues raised in this book. A book that
educates the public and offers practical tips to nonattorneys about
using the judicial system, and explaining the steps involved in
commencing a civil action or in conducting a criminal defense, would go
further towards demystifying what lawyers really do. When the public
understands such things as the difference between statutory and common
law, discovery, and attorney billing practices - in short, when the
public takes a more active role in the judicial system, it will be
harder for lawyers to take advantage of clients, or to transgress into
other "morally gray" areas.
The answer to our ethical dilemma lies not in amending the
professional rules as the author proposes, but in educating the
consumer. Unfortunately, this may take a lot of time. New York state,
for example, has made it mandatory for law firms to post a "Statement of
Client Rights" in a visible location (that is, the waiting area or
conference room) that explains clients have a right to have their cases
pursued diligently, have their phone calls returned, and so on. Since
this mandate went into effect in January 1997, I've seen the "Rights"
posted in exactly two law firms, one of which posted them in the staff
copying room. Amending the Rules of Professional Responsibility will
probably not stop unscrupulous attorneys from bending the rules, but an
educated consumer will.
Jami S. Hubbard, U.W. 1997,
practices law in New York, N.Y.
Wisconsin
Lawyer
