Vol. 28, No. 10
Review of Legal Resources
This department is published to apprise attorneys of legal resources that may be of interest to them. Readers wishing to make review suggestions, provide review copies, or write reviews should contact the Editorial Office of The Colorado Lawyer, 1900 Grant St., Ninth Floor, Denver, CO 80203; (303) 860-1118. Review of Legal Resources is prepared by the journal’s Book Review Committee, chaired by Allen Sparkman, (303) 820-0833, in Denver. For information on the materials reviewed or to obtain a copy, please contact the publisher directly.
A PRACTICAL GUIDE TO FEDERAL EVIDENCE: OBJECTIONS, RESPONSES, RULES, AND PRACTICE COMMENTARY
By Anthony J. Bocchino and David A. Sonenshein (Notre Dame, IN: NITA, 1999) [National Institute for Trial Advocacy, Notre Dame Law School, Notre Dame, IN 46556; phone orders to (800) 225-6482; e-mail to email@example.com or www.nita. org; ISBN 1-55681-0650-2268], 260 pp., paperback, rev. 4th ed.; $35.95.
Reviewed by Christopher T. Macaulay
A partner with the Denver firm Cortez Macaulay Bernhardt & Schuetze LLC. Macaulay is a business and commercial litigator and trial lawyer.
The National Institute for Trial Advocacy ("NITA") has released its newest update to A Practical Guide to Federal Evidence: Objections, Responses, Rules, and Practice Commentary by Anthony J. Bocchino and David A. Sonenshein. This one-volume, soft-cover book is a handy and practical guide for trial lawyers and law students alike. Designed to be carried to the courtroom or classroom, it has everything advocates need to handle evidence problems. The revised fourth edition reflects the December 1, 1998, changes to the Federal Rules of Evidence and is organized for quick reference and response during trial.
The book is divided into sections that group potential evidentiary objections by subject matter, making them easy to locate. The evidence sections are categorized into nine headings: General Considerations, Forms of Questions, Relevance, Authentication and Original Documents, Exhibits, Opinions, Cross-Examination and Impeachment, Character Evidence, and Hearsay. The ninety short chapters in this work touch on all common evidentiary issues, whether or not found in a federal rule. Hearsay alone takes up thirty-five chapters, although no chapter in this book is longer than four pages and most are only a page or two.
Each chapter is structured in the same manner. The authors first provide a definition of the evidentiary matter, typically three or four sentences that define the issue. The authors then provide a form of objection and response. Each objection and response is given in a manner that the trial lawyer can quote verbatim while making an objection or a response at trial (e.g., Objection: "I object that this evidence is inadmissible as an offer to pay medical expenses"; Response: "This statement is admissible because it is not offered on the issue of liability."). A reprint of the controlling federal rule or reference to a related rule of evidence follows the objection and response.
The most helpful section of each chapter is the "Practice Commentary." The Practice Commentary discusses common issues confronted by trial lawyers. It also provides detailed and specific practice pointers, practical day-to-day courtroom issues, a discussion of trial tactics, and a cross-reference to other relevant rules. Particularly helpful for inexperienced trial advocates are the foundational prerequisites for the admission of exhibits. The Practice Commentaries for the various rules regarding admissibility of exhibits contain the step-by-step foundational prerequisites for seeking the admission of exhibits.
The Appendix comprises the full text of the Federal Rules of Evidence as amended to December 1, 1998, and a quick reference guide containing the minimum language required to make a response to various objections.
Criticisms of this practical guide are few. It is not intended to be a treatise on the Federal Rules of Evidence and, as such, case citations in the Practice Commentaries are few and far between. Additionally, most trial lawyers know the Federal Rules of Evidence by number and are used to searching for the rules by number. The organization of this book takes a little getting used to, but once the practitioner is familiar with the way the rules are categorized, specific rules, objections, and responses can be found quickly.
Many trial attorneys are familiar with an earlier publication by these authors, Federal Rules of Evidence with Objections, the pocket-sized reference book also published by NITA. The current revised edition of A Practical Guide to Federal Evidence should replace the pocket guide for most practitioners. It provides the kind of in-depth analysis of evidentiary rulings not found in the pocket guide, but in a format that is still small enough and convenient enough to be left on the corner of counsel’s table during trial. A Practical Guide to Federal Evidence, at 260 pages, should satisfy any litigator looking for an inexpensive, portable resource that allows quick access to the appropriate way to offer and oppose evidence during both the pretrial stage and at trial. No litigator should do without it.
THE COMPLETE GUIDE TO CONTRACT LAWYERING (What Every Lawyer and Law Firm Needs to Know about Temporary Legal Services)
By Deborah Arron and Deborah Guyol (Seattle, WA: Niche Press, 1999) [P.O. Box 99477, Seattle, WA 98199; phone orders to: (206) 285-5239]; 316 pp., 2d ed.; $34.95.
Reviewed by David A. Perlick
A sole practitioner in Boulder, Colorado.
The Complete Guide to Contract Lawyering, 2d ed. ("Guide") updates the first edition, published in 1995 [see review at 25 The Colorado Lawyer 30 (May 1996)]. Although the second edition includes a few minor additions or revisions, the text closely parallels that of the first edition. In this reviewer’s opinion, revisiting that material is not warranted. However, publication of a second edition supports the proposition that contract lawyering is a recent trend that is here to stay. While such arrangements have been said to promote efficiency in the provision of legal services, numerous issues need to be considered by contract lawyers and hiring lawyers alike. The Guide is a useful resource that outlines and explains these issues.
For those involved in or contemplating contract lawyering arrangements who have yet to study the issues in depth, the Guide is probably the best place to start. Complete with historical data, sample contracts, ethics opinions, and real-life accounts from contract lawyers and hiring lawyers, the Guide is packaged to enable the reader to enter such arrangements with confidence that all the risks have been assessed. Indeed, while the authors clearly promote the idea, they do not fail to address a variety of problem areas, including conflicts of interests, client consent, billing, and professional malpractice liability coverage. The authors define the risk and desirability of such contract arrangements.
The Guide is readable, without technical jargon, and is structured in a way that allows the reader to focus on specific issues of concern. Contract lawyers starting out are given instructions on how to market themselves, how to set-up an office, and how to negotiate the contract with a hiring lawyer. On the other hand, the Guide has a separate section geared toward the concerns of hiring lawyers, including information on how to assess the need for contract help and how to find, supervise, and communicate with contract lawyers, as well as how to handle conflicts and confidentiality issues. Another section compares contract lawyering to other arrangements, such as of counsel, independent general counsel, and litigation support services.
In this reviewer’s opinion, significant risks and benefits inhere in contract lawyering arrangements. For those practitioners who are or may become involved in such arrangements, the Guide is an extremely useful and cost-effective tool in developing an awareness of, and checklists for, many important issues.
ENVIRONMENTAL SCIENCE DESKBOOK: A COMPREHENSIVE GUIDE
Edited by James W. Conrad (Eagan, MN: West Group, 1998) [610 Opperman Dr., P.O. Box 64526, St. Paul, MN 55164-0526; phone orders to (800) 328-7990], 600 pp.; $140.00.
Reviewed by Arthur P. Mizzi
An environmental attorney, who has a Ph.D. in applied mathematics and an MS degree in environmental science. Mizzi is with Burns, Figa & Will, P.C., Englewood, Colorado.
Many environmental attorneys find that the technical details of environmental matters overwhelm the more substantive issues, causing them "to lose sight of the forest for the trees." Often, it would be helpful if there were a comprehensive guide to lead the attorneys through this morass of technical details. West Group’s Environmental Science Deskbook ("Deskbook") provides such a guide. The Deskbook is broadly organized into two sections. The first four chapters introduce the technical underpinnings of mathematics, statistics, physics, chemistry, sampling methods and analysis, and risk assessment. The last four chapters discuss the physical nature, contamination pathways, characterization methods, and remediation strategies for the following environmental media: groundwater, surface water, soils, and air.
In the first section, chapters one through four fall into three subsections. Chapters one and two contain an introductory discussion of mathematics, statistics, physics, and chemistry. Chapter three contains a detailed and comprehensive discussion of sampling and analysis methods. Finally, chapter four contains a non-quantitative discussion of risk analysis.
Chapters one and two attempt to convey a broad base of knowledge, beginning with some of the more elementary concepts and ending with some of their most sophisticated technical principles. This is a very difficult task. Readers having had introductory college classes in these subjects may find the beginning of these chapters too elementary, while at the same time finding the end of these chapters too complex. The transition between elementary and complex material takes place rapidly and requires independent knowledge of the subject to bridge the transition. For example, chapter one begins with a discussion of mathematical notation, follows with physical units, and ends with statistics. Similarly, chapter two begins with a discussion of the fundamental elements of chemistry such as matter, atoms, molecules, and their physical properties. It follows with a discussion of chemical bonds and chemical reactions and ends with organic chemistry, its nomenclature, and nuclear chemistry.
Needless to say, it is nearly impossible to provide a thorough review of the subjects in the 125 pages making up the first two chapters. Nevertheless, the authors were up to their task, because the first two chapters are well written and provide the reader with an excellent review. Additionally, these chapters provide a useful reference for the definition of various physical units, such as distinguishing between hectometers and decimeters or between hydraulic conductivity and transmissivity (Tables 1.01, and 1.02). For a summary of physical unit conversion factors, such as the conversion between pounds per cubic foot and grams per milliliter, see Table 1.04, or for an explanation of organic chemical nomenclature and the distinction between the "-anes," "-enes," and "-ynes," see § 2.03.
Chapter three is one of the most useful chapters in the Deskbook. It begins with a description of sampling theories and follows with a discussion of the different sampling techniques used in the various environmental media. The second part of this chapter discusses chemical analysis methods and equipment. Most readers will find that this chapter is an excellent reference resource because the descriptions are both concise and intelligible. However, some of the chemical analysis equipment descriptions may be too technical.
Chapter four presents a conceptual discussion of risk analysis that will be useful to readers who are unfamiliar with this subject. Its general utility is limited because it presents a discussion of hazard identification, dose-response assessment, exposure assessment, risk characterization, and probabilistic risk assessment—in a brief thirty-four pages. Some readers, especially those familiar with risk analysis, also will find that chapter four lacks the quantitative rigor associated with current developments in this area.
The second section, chapters five through eight, contains information on the application of the technical concepts, discussed in chapters one through four, to the various environmental media. Nearly all readers will find the discussions useful. Generally, these chapters are organized with a beginning discussion of the environmental media. For example, §§ 5.01-5.03 discuss groundwater, groundwater flow, and groundwater contamination pathways; §§ 6.01-6.02 discuss surface water and pollution categories; § 7.01 briefly introduces contaminated soils and solid waste; and § 8.01 introduces air pollution terminology. These introductory sections are followed with discussions of the various media and/or contamination characterization methods: §§ 5.04-5.05 discuss groundwater analysis, modeling, and sampling; § 6.02 discusses the classification and measurement of surface water pollutants; and § 8.02 discusses air quality monitoring and modeling. Finally, each of these chapters concludes with a discussion of different treatment and/or remediation technologies: § 5.06 discusses groundwater remediation strategies; § 6.03 covers wastewater primary, secondary, and tertiary treatment technologies; §§ 7.02-7.11 discuss solid waste and soil treatment technologies; and § 8.03 concerns air pollution control technologies.
The introductory and characterization portions of these chapters provide a readable overview of the physical aspects and the associated quantification methods for the various environmental media. The final provisions relating to treatment and remediation technologies are somewhat technical and less readable. Nevertheless, they also provide a comprehensive overview of current technologies and, together with the table of contents, provide an excellent reference resource for an introductory understanding of the physical and chemical principles behind the different treatment and remediation technologies.
The Deskbook is an excellent reference resource for attorneys and environmental consultants who need an intermediate-level understanding of the various environmental media, their characterization, and current treatment and remediation technologies. Both the seasoned environmental attorney and the general practice attorney encountering environmental issues for the first time should find the Deskbook a useful addition to their libraries.
HOW TO WIN JURY TRIALS: BUILDING CREDIBILITY WITH JUDGES AND JURORS
By Stephen D. Easton (Phila., PA: American Law Institute-American Bar Association, Committee on Continuing Professional Education, 1998) [4025 Chestnut St., Phila., PA 19104-3099; http://www.ali-aba.org; phone orders to: (800) 253-6397, ext. 1650; fax orders to (215)243-1664]; 229 pp.; $83.00 (includes shipping/handling).
Reviewed by Lawrence M. Zavadil
Senior counsel with the firm of Holme Roberts & Owen LLP in Denver. Zavadil is a business trial lawyer and editor for the "Civil Evidence" column for The Colorado Lawyer.
As the title suggests, this book espouses the increasingly popular theory that a trial lawyer’s most critical task in the courtroom is establishing and maintaining credibility. The book’s twelve chapters are broken down into numerous one- and two-page sections that succinctly convey tips and "rules" for maintaining credibility during the various stages of trial. At 59 x 7½9, with large print, the book is a quick and easy read. It is well-written and reasonably well-organized.
The book’s opening chapters ("The Building Blocks of Credibility" and "Rules of the Road for Trial Attorneys") provide a lot of common-sense suggestions that seem unremarkable until you consider how infrequently they are followed. The chapters on "The Real World Rules of Evidence," "Hidden Gems in the Rules of Evidence," and "Objections: To Be or Not To Be," although not comprehensive by any means, do contain a lot of wisdom that will not be found in a reading of the rules of evidence. A chapter on the treatment of fact witnesses is good as far as it goes, but it is a bit shallow, particularly in comparison to the considerable amount of content devoted to expert witnesses.
Experienced trial lawyers will not find a lot of new insights here, although the book could be used as a good, quick refresher course when gearing up for trial. New and mid-level associates would probably benefit the most from this book, as it contains practical, real-world advice that is usually obtained only through experience. Although its price seems a little steep for the content provided, in light of the reported decrease in mentoring of young lawyers, this reviewer recommends the book as an addition to the law firm library.
THE MAN WHO ONCE WAS WHIZZER WHITE
by Dennis J. Hutchinson (New York, NY: Free Press, Div. of Simon & Schuster, 1998) [1230 Avenue of the Americas, New York, NY 10020; phone orders to: (800) 223-2336]; 457 pp. + 83 pp., attachments; $30.00.
Reviewed by Richard A. Westfall
Clerked for Justice Byron White during the 1986 term of the U.S. Supreme Court. Westfall presently works for Hale Hackstaff Tymkovich & ErkenBrack, LLP.
Dennis Hutchinson describes in rich detail the life of Justice Byron Raymond White: beet farmer, prep star, All-American, Rhodes Scholar, professional football star, war hero, distinguished lawyer, political activist, major figure in the election of a U.S. president, number-two man in the Department of Justice, and finally, U.S. Supreme Court Justice for over three decades. President John F. Kennedy’s statement announcing the Justice’s appointment to the Supreme Court read, in part, that the Justice had "excelled in everything he has attempted—in his academic life, in his military service, in his career before the Bar, and in the federal government."
Dennis Hutchinson’s book, The Man Who Once Was Whizzer White, ably describes Justice White’s accomplishments, but also offers glimpses of the man behind those accomplishments. Hutchinson is a professor of law at the University of Chicago, and he clerked for the Justice during the 1975 term. The book is not an authorized biography. As noted in the prologue, Justice White neither endorsed nor condemned Hutchinson’s work. When Hutchinson visited the Justice, he was told that he would be "on his own." Nevertheless, the Justice could have significantly inhibited Hutchinson’s work; he did not. The result is a lengthy and very detailed analysis of the Justice’s life and work.
Hutchinson begins the book with a look at the Justice’s ancestors and traces his family from Iowa to Colorado. White was born in the Larimer County hospital on June 8, 1917, and grew up in Wellington, working long hours in the sugar beet fields, playing football and baseball, and studying hard. He graduated with a "straight A ranking" and was first in his class, earning a scholarship to the University of Colorado, where he played football, basketball, and baseball. He earned conference honors in all three sports. His prowess on the football field earned the attention of the Denver and Boulder newspapers, and he became the focus of an attempt by CU to have someone from the university named an All American. Thus began what became White’s lifelong battle with the press.
The institution of a moniker that the Justice disliked immensely but one that would follow him for years to come—"Whizzer"—is attributed to a September 6, 1936, Rocky Mountain News article that referred to the Justice as "Whizzer White." His senior year at CU created what Hutchinson describes as "Whizzermania." That year, the Justice was named a consensus All American and won a Rhodes Scholarship.
The Justice attended Oxford for part of 1939, played professional football the previous fall, and enrolled at Yale Law School. When the war escalated, the Justice enlisted as a naval intelligence officer. His tour included investigating the sinking of John F. Kennedy’s PT boat. The Justice had previously met the future president in Europe while attending Oxford. After the war, the Justice completed his studies at Yale (graduating magna cum laude), married Marion Stearns (the daughter of CU’s president), and clerked for Chief Justice Fred Vinson on the Supreme Court.
After finishing his clerkship, the Justice returned to Colorado to work for the four-man firm of Newton, Davis & Henry, which later merged with Lewis & Grant and then became Davis, Graham & Stubbs. He was essentially a transactional lawyer and also was active in state Democratic Party activities, repeatedly rejecting attempts to draft him as a candidate.
In 1960, White was state chair and an important member of Kennedy’s campaign for President. After Kennedy’s election, the Justice became the number-two person at the Department of Justice (Deputy Attorney General), working for Robert Kennedy, John Kennedy’s brother. When Justice Charles Evans Whittaker became ill in the spring of 1962 and resigned from the Court at the age of 61, John Kennedy asked him to accept the appointment. The Justice’s confirmation hearing before the Senate Judiciary Committee lasted ninety minutes, and that afternoon, he was confirmed by voice-vote by the full Senate.
The remainder of Hutchinson’s book focuses in great detail on White’s tenure on the Court—over three decades of service. It is difficult to do justice to such an analysis (over 100 pages in length) in the space here. However, the general themes captured by Hutchinson include the following:
1. The Justice firmly and consciously rejected the role of a judicial theoretician. The role of the Court, in his view, was to decide cases and leave the legislating for the legislative branch, Congress.
2. Consistent with this view, White fought the judicial activism of the Warren Court—one chapter title is: "The Warren Court: White J., Dissenting." This included his famous dissent in Miranda v. Arizona (requiring prophylactic warnings for protection of Fifth and Sixth Amendment rights), which in part stated:
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets. . . . As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative prescriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.
3. The Justice focused his attention on written opinions. According to one account in Hutchinson’s book, the Justice remarked: "Talk is cheap. All the persuasion around here is done on paper."
4. White’s writing style reflected his style generally: tough, unpretentious, and to the point.
The Justice had two major regrets concerning his work on the Court, according to Hutchinson. The first was his joining the majority in New York Times v. Sullivan. He believed that the balance struck in that case allowed the press to too easily escape responsibility for publishing false information. The second was stated as follows: "I wish I had been more consistent in the employment discrimination area." His earlier misgivings about, although acceptance of, affirmative action manifested his belief that it constituted reverse discrimination. According to Hutchinson, White revealed to a friend in Denver: "You just can’t take an innocent man’s job away. You can’t call that a remedy."
Hutchinson observes that legal historians may not place Justice Byron White among the truly "great" justices because, in their view, he did not have a doctrinaire legacy. But the Justice commanded a tremendous amount of power on deciding individual cases for over three decades, and his view of a more limited Constitution is now more widely held today than it was when he first joined the Court. White also had a tremendous influence on entire bodies of law, including and especially the First Amendment. Last, but not least, the Justice was considered to be the quintessential public servant, a role he relished and practiced with humility.
Hutchinson’s work is detailed, thoroughly researched, fairly captures the man behind the legend, and offers a significant observation of history in the process. It is a worthwhile read for anyone interested in the Justice, history, or the law.
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