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Vol. 71, No. 3, March
1998
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.
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