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The Florida Bar
www.floridabar.org
The Florida Bar Journal
November, 2002 Volume LXXVI
Books

Page 85

Elements of Florida Civil Causes of Action and Defenses
by Arthur L. Berger
Reviewed by Gary S. Gaffney
As any experienced lawyer will tell you, time is money. Whether representing a Fortune 500 client in complex negotiations or prosecuting a penny-ante pro bono action in small claims court, the ability to determine the applicable rules of law quickly and efficiently can make all the difference in the world. Indeed, the presentation of any legal position, from initial analysis to formal argument, must always be grounded in the appropriate elements of substantive law.
However, the truth is many lawyers today go off into battle with a tenuous grasp of the law on which they intend to base their case. The “law,” as it were, is literally at one’s fingertips in today’s modern world. The dilemma, of course, lies in finding the best way to access as quickly and inexpensively as possible. This is no easy task, and it is made even more daunting by the fact that not all legal problems arise in just one area of law.
Unfortunately, most secondary sources of “the law” do not provide a comprehensive scope of coverage. There are, in fact, too few resources that cover the wide assortment of causes and defenses that one is likely to encounter in practice. To fill this void, and make their research more efficient, many Florida attorneys have learned to rely on resources like the “standard jury instructions” approved by the Florida Supreme Court, or they attempt to glean the law from standard form/pleading books. The question often asked is: Why can’t someone just put together all of the rules of law that Florida lawyers typically use on a daily basis in one, easy-to-use book?
Tallahassee attorney Arthur L. Berger has compiled just such a resource in Elements of Florida Civil Causes of Action and Defenses. First published in 1997, Elements has become a fairly well-known desktop reference, and it is not uncommon to see it carried into court or conference. In this, his Second Edition, Berger has changed little of what made the original Elements so popular (and useful), and has in fact made a number of noticeable improvements.
The one-volume softcover text lists approximately 100 civil actions and defenses, and the book is printed in an easy-to-read full-size format. New entries in this Second Edition include “assault” and “battery,” and “declaratory judgment” — along with “rescission” and a handful of others.
Elements contains a significant amount of valuable “nuts and bolts” information, all carefully organized and clearly presented for ready use.
Identifying the pertinent elements of law is the principle focus of this practice-oriented text, and its practical format is sure to help both experienced and novice attorneys find their way through the maze.
Berger has arranged the various entries in his book alphabetically — something akin to a glossary — with each individual action (and its correlative defenses) receiving anywhere from one to 11 pages of coverage. Some of the actions receive comprehensive treatment — “negligence,” for example — while others get just a cursory glance — i.e., “Eviction”; the reason for this disparity is not readily apparent. Despite this unexplained disparity of treatment, most of the entries in the text receive more than adequate coverage. This is especially true if the materials in the book are utilized in the manner in which they were intended — to swiftly and efficiently establish a basic foothold and understanding of the substantive elements of law for a particular cause or defense.
Berger has neatly organized each entry into segments entitled “elements of cause of action,” “references,” “defenses,” and “related matters.” This format renders the book at once instantly familiar and easy to use. Citations to authority abound; Berger cites leading cases and secondary authorities, as well as federal and state statutes. In fact, if the cause of action arises out of a statute, the applicable statutory authority is specifically identified, and the entry then follows the general format used for the common law.
The book does have a few drawbacks: Berger does not include either an introduction or a preface to his text, and he does not identify with any specificity just how current the law was as of the date of its publication. In addition, the book contains no subject index (or case index or statutory index for that matter), all of which would be helpful to a researcher without a handle on the “title” of the particular cause or defense being investigated.
Despite these relatively minor flaws, the book can be quite useful in steering a pleader or researcher to the basic elements of law for all but a few commonly encountered causes of action. In fact, the only serious omission from the book is a high price tag. At $94 including shipping and handling, it is a bargain indeed. It can be ordered from your favorite online bookstore or by e-mailing Berger at octagonpress@aol.com.

Gary S. Gaffney is an a appellate attorney and legal writer, board certified in real estate law, and past chair of The Florida Bar Journal and News Editorial Board.

Lessons from a Lifetime in the Courtroom
by Henry G. Miller
Reviewed by Robert C. Josefsberg
Henry Miller’s educational and entertaining book is adapted from a series of 12 articles he recently wrote for the New York Law Journal. Readers of the articles urged Henry to consolidate and share the articles with the rest of the profession. Florida is fortunate — this may be the best thing we have ever imported from New York.
In addition to his 45 years of trial experience, Henry is a runner, playwright, and actor. He therefore brings efficiency, drama, excitement, and humor to his courtroom stories.
The book presents useful tips, strategies, and common sense advice to both experienced and new trial lawyers. Another review has described the book as “perceptive, humorous, and devoid of the self-aggrandizement often found when legal gladiators discuss their . . . successes.” Such books always remind me of the old story about three lawyers who were captured and granted one wish before they were to be killed. One senior lawyer asked to be able to give his opening statement in a complicated commercial case. Another senior lawyer asked to give his closing argument in a dramatic case he had tried. The third captive, their young associate, asked to be killed before he had to listen to their arguments again. In this case, the smart young lawyer’s last request might be to read Henry Miller’s masterpiece.
Henry’s perception and humor are obvious when you scan some of the titles of the chapters — “The 44 Most Common Blunders of Jury Selection,” “Living with Defeat,” “Courage, or Trying a Case When the Judge and Jury Hate You,” and “The Art of Survival.”
Henry’s book is not just a nuts-and-bolts “how-to” road map. Instead, it takes us on side trips with words of wisdom regarding judges, civility, stress, and survival. Henry writes about advocacy and courage:
Putting defeat in perspective may be the secret of great trial lawyers. Having conquered the dread of defeat, they are even more formidable. Adversaries see in their eyes a willingness to take verdicts . . . . Free of fear, these advocates cannot wait to try cases. The joy of battle has not leaked away in needless worry. These advocates can try cases to the last day they live, while others retire to play golf or write articles about advocacy.

Henry’s last chapter brilliantly analyzes the dedication and the lifestyle balance requisite for longevity at the trial bar. Henry’s own words make the best closing argument: “Keep fit, be ethical, take vacations, have many interests, laugh, do not take yourself too seriously, love your work, be creative, face up to hard problems.”

Robert C. Josefsberg is an attorney with Podhurst, Orsek, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., in Miami.

Trilogy on South Beach
Miami Beach attorney James Sabatino has written three short stories about another Miami Beach attorney — his protagonist, Duke Jacobs. The stories are collected in a 260-page paperback book published by Xlibris Corporation called Trilogy on South Beach which is available at local and online bookstores.
The stories follow Jacobs through his work, social life, and the many dangerous situations he finds himself in, against the backdrop of beautiful Miami Beach.

Florida Litigation Guide
Deerfield Beach attorney Marc A. Wites for years wrote The Florida Civil Litigation Handbook: Actions, Defense, Evidence and Rules, which was published annually by Matthew Bender & Company. Now, he’s struck out on his own with The Florida Litigation Guide, published by Litigation Guide Publishing, Inc.
The $20 paperback includes the elements of 55 Florida common law causes of action, along with statute of limitation regulations and the most recent state and federal court cases that cite the elements of each action. The Guide also provides defenses to each cause of action.
The 2002 edition can be purchased by contacting Litigation Guide Publishing with billing information by e-mail at mwites@aol.com, by fax at 954/428-3929, or by phone at 954/570-8989.

The Liberty Incident
by Judge A. Jay Cristol
U.S. Bankruptcy Judge A. Jay Cristol, a former naval aviator and current Miami resident, spent 10 years investigating the June 8, 1967 attack of the USS Liberty by Israeli air and naval forces during the height of the Six-Day War. The attack left 34 Americans dead and 171 more wounded.
Cristol’s book, The Liberty Incident: The 1967 Israeli Attack on the U.S. Navy Spy Ship, posits that the attack was a mistake and gives minute-by-minute accounts of the events leading up to the attack. He examines the unsubstantiated stories that have circulated for years about the incident and analyzes the eleven official U.S. inquiries into the incident.
The Liberty Incident has met with some controversy, as many of the survivors of the attack disagree with Cristol’s assessment that the event was an accident. You can decide for yourself by ordering the 320-page hardcover book from your favorite local or online bookstore.

Spiritual Practice
by George J. Felos
As a legal advocate of his client’s right to die, Felos has plumbed the depths of death and dying, and uses a landmark case and a decade-long tax battle with the U.S. Justice Department to show that spirituality can unfold upon the field of litigation. His Litigation as Spiritual Practice describes the excitement and drama of the courtroom, and the ecstasy and angish of spiritual evolution in a combative environment.
He asserts that the intense concentration lawyers must develop for the courtroom can also be used to open the door of self-discovery. To help attorneys learn how to apply their mental skills for personal growth, he has created “Meditation for Lawyers.” Felos advocates yoga and meditation as ways to learn the concentration to allow peace in the workplace. He believes that once the mind is focused, it can then cultivate constant awareness of spiritual or divine nature—even in times of upset.
Litigation as Spiritual Practice (344 pages, hardcover) sells for $24.95 and is published by Blue Dolphin Publishing, Inc., P.O. Box 8, Nevada City, CA 95959; 800/643-0765; www.bluedolphinpublishing.com.

E-Commerce
LexisNexis has recently released the latest Matthew Bender treatise, E-Commerce and Communications: Transactions in Digital Information, which focuses on the collision of intellectual property, commercial and communications law in cyberspace, and new statutes such as the Uniform Computer Information Transactions Act (UCITA) and the Uniform Electronic Transactions Act (UETA).
The treatise, in a one-volume, looseleaf format, can be ordered for $195 by visiting www.lexisnexis.com or by calling 888/223-6337.

Domain Name Disputes
Analyzing critical topics relevant to the use and ownership of domain names has just been made easier, thanks to the release of Domain Name Disputes by Aspen Law & Business.
The 600-page book delves into how legal disputes involving Internet domain names are resolved, whether by U.S. courts or by the Internet Corporation for Assigned Names and Numbers (ICANN) cyber-arbitration system. The guide also includes information on the legal status of domain names as “property,” the clash between trademark rights and free-speech rights, and the remedies a trademark owner has against an alleged cybersquatter.
Domain Name Disputes can be ordered by visiting online bookstores or by calling 800/638-8437.

NITA
Eyewitness Testimony: Challenging Your Opponent’s Witness, a 200-page pocket-size guide published by the National Institute for Trial Advocacy (NITA), is designed to show attorneys how to use scientific knowledge on eyewitness memory to more effectively challenge eyewitnesses in court.
The paperback offers practical guidance for challenging eyewitnesses during the trial from pretrial motions, to jury selection, opening statements, cross- and examination, and cross-examination of investigators.
Cardinal Rules of Advocacy: Understanding and Mastering Fundamental Principles of Persuasion was also recently published by NITA. The 280-page paperback is written by Connecticut Superior Court Judge Douglas S. Lavine.
Cardinal Rules begins by discussing the need to properly identify your audience and tailor your arguments to its needs, then examines the importance of establishing integrity and credibility in the courtroom. Later chapters focus on creative legal thinking, creating a central theme, and framing issues in favor of your client.
Both books can be ordered by visiting your favorite online bookstore, or directly from NITA at www.nita.org or by calling 800/225-6482.

[Revised: 02-10-2012]