The Year in Review, 2008.

Books Read this Year (in no particular order):

1. The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin
2. Beautiful Boy by David Sheff
3. The Prosecution of George W. Bush for Murder by Vincent Bugliosi
4. Big Russ & Me: Father and Son: Lessons of Life by Tim Russert
5. The God Delusion by Richard Dawkins
6. Dreams from My Father by Barack Obama
7. The End of Faith by Sam Harris
8. The Last Lecture by Randy Pausch and Jeffrey Zaslow
9. The Party of the First Part: The Curious World of Legalese by Adam Freedman
10. The Tipping Point by Malcolm Gladwell
11. Save Me From Myself by Brian Welch
12. Blink: The Power of Thinking Without Thinking by Malcolm Gladwell
13. Fiasco: A History of Hollywood's Iconic Flops by James Robert Parish
14. God's Harvard: A Christian College on a Mission to Save America by Hanna Rosin
15. Day of Reckoning by Patrick J. Buchanan
16. God’s Problem by Bart Ehrman
17. A Time to Fight by Jim Webb
18. Ahead of the Curve by Philip Delves Broughton
19. Scratch Beginnings by Adam Shepard
20. Lawyers' Poker: 52 Lessons That Lawyers Can Learn from Card Players by Steven Lubet
21. The Audacity of Hope by Barack Obama
22. Billion-Dollar Lessons: What You Can Learn from the Most Inexcusable Business Failures of the Last 25 Years by Paul B. Carroll and Chunka Mui
23. Everything and More: A Compact History of [Infinity] by David Foster Wallace
24. Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan Garner

I have posted reviews of nearly all of these books. Just type the title into the search box at the upper left corner of this website.

Losses Sustained This Year:

1. Randy Pausch
2. Tim Russert, Jr.
3. David Foster Wallace
4. George Carlin

Book Review: Making Your Case: The Art of Persuading Judges (2008).

“Common sense is not so common.”
--Volaire

Justice Antonin Scalia and Bryan Garner's Making Your Case: The Art of Persuading Judges contains common sense and not-so-common sense tips on legal writing and oral argument.

It's common sense to not "chew your fingernails" (p. 183) in court; to "[k]now your case" (p. 8); and to "know your audience". (p. 5.) Consequently, tips like these simply reinforce what their readers already know (or should know).

However, the book shines when it delves into the uncommon variety. Making Your Case's superior advice concerns crafting legal briefs in two interrelated respects. First, it argues that framing the issue is the most crucial part. It urges that the "questions presented" or statements of issues lead the brief. (e.g., p. 83.) The authors provide an insightful comment attributed to Clarence Darrow (and others) that he would take any side of the case as long as he could frame the issue. (p. 83.)

Second, the text explains how to frame the issue employing a legal syllogism with a major premise, a minor premise, and a conclusion. In Making Your Case, the major issue contains the legal principle or authority. The minor premise constitutes the factual application of the case to the major premise. And the conclusion asks the question (preferably suggesting the answer). Example:

"OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled 'Contributing Factors.' Did the report thereby violate OSHA rules?" (p. 88.)

The authors follow their own advice by using straightforward declarative sentence headings. These headings are arranged as the table of contents, so one could glean much of the book's content by reading these 115 sentences. The writers organize their 115 lessons into four sections: "General Principles of Argumentation", "Legal Reasoning", "Briefing", and "Oral Argument". The last section is probably the least compelling because, as the authors concede, it is rarely persuasive. "Does oral argument change a well-prepared judge's mind? Rarely." (p. 139.)

A co-written book, Making Your Case almost never attributes a section explicitly to one author. However, Justice Scalia's trademarked wit gives him away often. As the book skews a bit toward federal practice, and within that, to US Supreme Court litigation, I suspect this emphasis reflects Justice Scalia's input. Nevertheless, the principles are nearly universal.

The authors veer from their general approach by engaging in a couple of skirmishes. These involve the use of footnotes and contractions. (pp. 114, 129, 132.) Garner displays a healthy self-esteem as he is willing to argue, in print, with Justice Scalia. He'll need that as Scalia essentially destroys Garner's positions, often invoking his rarefied experience as a Justice to which Garner can have no rejoinder. In one poignant example, Garner gives Scalia an opening approximating the Grand Canyon. Garner argues that contractions are appropriate for legal briefs because "every President since Gerald Ford in 1975 has used contractions in the State of the Union Address." (pp. 115-16.) Scalia responds, "[T]he State of the Union Address is not writing but (hello!) an address. The rules for oral communication are different. A proper test would be whether Presidents use contractions in their signing statements, veto messages, and executive orders. (They do not.)" (p. 117.)

Whether common or uncommon, the sensible tips contained in Making Your Argument elevate it to a preeminent book on legal reasoning and writing. Recommended to law students and practicing lawyers.

Brevity.

I'm reading a book on legal writing.

The text contained this sentence:

"The power of brevity is not to be underestimated."

It seems that sentence could have been shorter.

Like that one could.

Self-Back-Patting.

I fondly remember going to my Criminal Law professor's classes. The professor appeared regularly in the media to comment on high profile cases, and he exhibited a flair for the dramatic in class. He told great courtroom stories, of which I remember many.

However, his litigation tales often assumed a self-congratulatory tone. My good buddy classmate would signal such a vignette with a back-patting pantomime.

I hope this story does not cause readers to do the same for me, but I received the following email from a client today:

"My family just wanted to say thank you again for everything you have done. We are
indebted to you for your services, and we think that you are a superb attorney and
human being. We hope to tell other attorneys, referral services, and everyone we
know that you and your firm are superior to all those we've ever encountered."

It's moments like this that make the practice especially satisfying.

Book Review: Everything and More by David Foster Wallace.

Amid complex calculations and intricate graphs, a math history text yearns to emerge. Within that history book, a biography struggles for liberation.

David Foster Wallace's Everything and More: A Compact History of [Infinity symbol] focuses on mathematical developments in the 1800s, primarily regarding transfinite math.

In this study, Wallace highlights a gentleman who evidently held five names, not including titles: Georg F. L. P. Cantor, born 1845—the “acknowledged father of transfinite math.” (p. 5.)

At the outset, Everything and More acknowledges the difficulty of its task: "The aim is to discuss these achievements in such a way that they’re vivid and comprehensible to readers who do not have pro-grade technical background and expertise. To make the math beautiful—or at least to get the reader to see how someone might find it so. Which of course all sounds very nice, except there’s a hitch: just how technical can the presentation get without either losing the reader or burying her in endless little definitions and explanatory asides[.]” (p. 2.) Wallace explains further that he is not content to have the reader "merely knowing about Cantor’s accomplishments” but “appreciating them”. (p. 7.)

Unfortunately, Wallace does not attain his desired balance of achieving understanding without overloading the reader with technical details. I’m not certain how Wallace defines a “pro-grade technical background and expertise”, but this book’s math is basically accessible only to those with math or engineering degrees or a professional background therein. An example: “Since the cardinal number of denumerable sets is [Hebrew letter with numerical subset], it looks as if it would make sense to signify the set of all reals’ cardinality by [Hebrew letter with numerical subset]; but for complicated reasons Cantor designates this set’s cardinal number c, which he also calls ‘the power of the Continuum,’ since it turns out to be the nondenumerability of the reals that accounts for the continuity of the Real Line. What this means is that the [infinity symbol] of points involved in continuity is greater than the [infinity symbol] of points comprised by any discrete sequence, even an infinitely dense one.” (pp. 257-58.)

However, Everything and More’s historical and biographical aspects may be accessed by those who don’t possess technical expertise. These parts also contain interesting revelations, especially as they relate to Cantor. He, for example, “was in and out of mental hospitals for much of his later adulthood and died in a sanitarium in Halle [footnote omitted] in 1918.” (p. 5.) Wallace labors to underscore that Cantor did not derive “his most famous proofs about [infinity] while in an asylum….” (p. 167.) “Cantor’s first hospitalization was in 1884, when he was 39; most of his important work had already been done by then. He wasn’t hospitalized against until 1899. It was in the last 20 years of his life that he was in and out of places all the time.” (p. 167.)

Cantor was “something of a violin prodigy as a child. No one knows why he quit, but after a classical quartet in college there’s no more mention of the violin.” (p. 170.)

Elsewhere Wallace speaks of the high correlation of mathematicians and musicians (p. 181), which probably speaks to left brain functioning rather than a counterintuitive mix of art and science. I found this observation about mathematicians loving music to be especially intriguing because it partially explains my maternal grandfather Lawrence Schoenhals’ achievements in these heretofore seemingly disparate fields: he held a masters in math from the University of Michigan and also conducted an orchestra.

Wallace draws a biographical sketch of another important figure from this era: Karl Weierstrass. Wallace writes: “His early career is spent teaching high school in West Prussia (not exactly a hub), [footnote omitted] and he’s said to have been literally too poor to afford the postage for submitting work to journals. He finally starts publishing in the late 1850s, and sets math on its collective ear, and gets hired by prestigious U. Berlin as a prof—it’s all a long and kind of romantic story. (IYI [“If you're interested”] Weierstrass is also a conspicuous among mathematicians for being physically large, a gifted athlete, an inveterate partier and blowoff in college, indifferent to music (most mathematicians are fiends for music), and a cheery non-neurotic, gregarious, wholly good and much-loved fellow. He’s also widely regarded as the greatest math teacher of the century, even though he never published his lectures or even let his students take notes. [footnote omitted])” (p. 181; italics supplied.)

The book contains an unusual amount of what my English composition teacher in high school disparagingly called “Dear Reader notes”. Perhaps Wallace employs them to help guide the reader through dense verbiage about math (a difficult and imprecise task) or to make it “a piece of pop technical writing” as he asserts is his aim in the “Small But Necessary Foreword. (p. 1.) I however found them too clever by half and a hindrance. Example: “All right.” (p. 246.) That’s a complete sentence in Everything and More. Others: "Soft News Interpolation, Placed Here Ante Rem Because This is the Last Place To Do It Without Disrupting the Juggernaut-like Momentum of the Pre-Cantor Mathematical Context" (p. 167); and “End Q.F.-V.I. Return to §7c, at the ¶ on p. 256 w/ asterisk at end”. (p. 257.)

I recommend the book to those with strong math backgrounds and to others who can parse through the technical language to extract the nuggets of "nape-tingling genius" (p. 248) residing therein.

Book Review: Billion-Dollar Lessons: What You Can Learn from the Most Inexcusable Business Failures of the Last 25 Years.

I'm no fan of horror movies. But from the two or three I've seen, I know how they inevitably end. When you see a clueless person enter a dark house or forest, with eerie music, a bloody end can't be far away.

Although not a horror book, Billion-Dollar Lessons: What You Can Learn from the Most Inexcusable Business Failures of the Last 25 Years by Paul B. Carroll and Chunka Mui (September 11, 2008 [probably not a coincidental publication date]) parallels the horror genre.

When they begin to discuss a business, you know that business is doomed. Words to the effect of it "filed for bankruptcy..." can't be far away. In fact, this is part of a quote from the book regarding a company that filed for bankruptcy in 1990, recovered and then liquidated about a decade later. A two-fer. One of many with the same ignominious end.

The authors "built a comprehensive database of more than 2,500 [business] failures suffered by publicly traded companies in the United States." Carroll and Mui have catalogued these bankruptcies, write-offs, liquidations and other fiascos.

Sifting through the mountainous cremains of the business deaths in this book leads to a couple of conclusions. First, the book amounts to cautionary tales that should scare off just about any cautious putative entrepreneur. The aphorism, paralysis by analysis, comes to mind. Second, the book evinces a smugness that can perhaps be best illustrated by a Monday-morning quarterback. As has been said, hindsight is 20-20.

To their credit, the authors admit their book may led to risk-averse inaction. "The sheer volume of failures may feel overwhelming and may make you feel as if we're telling you to just sit inside all day, for fear that if you venture anywhere you will get run over by a semi." Yes, that's the impression.

Nevertheless, the authors provide a useful balance to the general cant of prevailing business literature.

They ably describe this tendency: "[W]e are encouraged to take risks in business, because we read about those who made 'bet the company' decisions and reaped fortunes--and don't read about those that never quite made the big time because they made 'bet the company' decisions and lost." Billion-Dollar Lessons fills this gap in the business literature. But one should understand this book as a counterbalance and not as a balanced portrayal.

Their "big idea" is to assemble review teams, which they analogize to the Catholic Church's "Devil's Advocate" that would argue the "no" side of a proposed beatification. They urge businesses to have a group argue "no" to a proposed acquisition or similar business move. No surprise there.

Carroll and Mui, however, unwittingly undermine their overall premise. They inconsistently admonish that the review panel should remember that "doing nothing can be a bad strategy, too." Indeed.