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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.
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