November, 2010 Books
Howard Bruce Klein
Reviewed by Paul G. Rozelle
“What is essential in war is victory, not prolonged operations.” Sun Tzu would have understood the purpose of discovery in civil litigation: to win your case at trial. However, the complexity of modern litigation and the disappearing jury trial threaten the very existence of depositions. If the U.S. Supreme Court can limit each side to 10 seven-hour depositions, then depositions can be eliminated altogether. The criminal system functions without them, as does civil litigation in most of the rest of the world. If depositions become little more than “prolonged operations” to confirm information in documents or expert reports or just more venues for those lacking professionalism to brow-beat an opponent, then further curtailment or elimination is nigh.
Howard Klein’s book may not prevent the demise of the deposition, but it will help new and experienced attorneys focus on strategic and tactical considerations in preparing for, taking, and defending them.
Like others, Klein recommends beginning with “general, innocuous questions” to establish rapport and close avenues of escape. From this foundation, later in the deposition the questioner can gain admissions or, with an expert, opinions. However, sometimes proceeding immediately to the substance of the case without any “warm up” can elicit an honest answer from a surprised witness who was expecting to spend hours talking safely about well-rehearsed preliminaries.
Klein wisely advocates ignoring the obstreperous opposing counsel who uses bogus objections, monologues, and other aggressive behavior to frustrate your objectives. Your experience to date in the case and due diligence on opposing counsel will have alerted you to whether you can expect problems. Preemptively discussing with the court how to handle disputes before they happen can prevent problems (and set the stage for the call to the judge or magistrate, should that become necessary). When in doubt, remember the teachings of another military strategist, Frederick the Great: “He who defends everything, defends nothing.”
Expert qualification is another matter that should be considered well in advance of the deposition. Why qualify your opponent’s expert in a discovery deposition? Should the expert become unavailable, your deposition could be read at trial. One should be able to “discover” an expert’s qualifications without covering the subject extensively in the deposition. Due diligence should include the Internet, other counsel familiar with the expert, and professional databases. Rarely is an expert completely disqualified from testifying. The best use of time is usually identifying the expert’s opinions, the bases for them, and getting the expert to commit to propositions that can be proved false at trial.
While Deposition Guidebook would not be most appropriate for a new attorney — it is not a tutorial and assumes some experience — it is well-targeted to those practitioners seeking additional insights on strategy in a concise format. Every other page in the book is intended for notes, making Deposition Guidebook an easily customized resource that counsel will consult regularly when preparing to take or defend a deposition.
Deposition Guidebook (264 pages) is published by ALI-ABA and is available online (http://www.ali-aba.org) for $49.
Paul G. Rozelle is a Florida Bar member and partner at the St. Petersburg litigation firm of Fudge & McArthur, P.A.
Reviewed by David G. Tucker
The Gendarme by Mark Mustian is not a typical lawyer-authored novel. It is not a courtroom drama written by a courtroom lawyer where the good and the evil are neon-lit, and the plot hinges on the improbable misstep of a witness. The Gendarme is the memoir of a war criminal.
Emmett Conn has made a good life for himself in America. Old and widowed, his daughters are grown, and he is a Rotarian in south Georgia. But Conn has a past not typical of those pursuing the American dream. Memories of this past had been lost to him, but an advancing brain tumor starts restoring his memories bit by horrifying bit. Conn had been Ahmet Khan, a Turkish paramilitary gendarme in command of a caravan of Armenian deportees headed to Syria during the Turkish genocide of the Armenians.
Conn’s life is reminiscent of lesser Nazi war criminals that made lives for themselves elsewhere, like John Demjanjuk, the Ohio autoworker who turned out to have been a concentration camp guard. Unlike Demjanjuk, Conn could not have been aware he had committed deeds that would qualify him as a war criminal. Conn’s growing awareness of his past confronts him with a deep moral quandary in the twilight of his life. How does he deal with what he has learned about himself as a young man?
Conn’s family and friends urge him to “move on” and let the past be. Conn, however, yearns for the truth, whatever the truth may be, particularly as it relates to Araxie, a young Armenian woman in the caravan. How Conn manages this conflict is the climax of the novel.
The conflict, of course, is not limited to Conn. The issues of long past war crimes or human rights violations coming to light are no longer novel. Whether through prosecuting long ago murders of civil rights leaders in America or through reconciliation commissions in South Africa, we as people strive to find out the truth, and whether justice is due.
To most Americans, the Armenian genocide was, to borrow Neville Chamberlain’s ill-starred phrase, “a quarrel in a far-away country between people of whom we know nothing.” This novel will correct some of that ignorance and connects the modern American to those forgotten times.
Mustian’s writing displays two major strengths. First, his prose is terse and vigorous. When he describes in detail a particularly graphic incident, his description is powerful because much of the narrative is underdescribed and leaves much to the reader. His writing converts this potentially lugubrious story into a very readable and accessible work.
His second strength is his characters. He humanizes the people in his novel with particularly normal flaws. We all can empathize with Conn’s internal debate about whether to strangle a too talkative neighbor driving him to a medical appointment. Mustian’s characters could be people we all know.
Mustian has penned a thoughtful and enjoyable novel set against events nearly forgotten in the West. Although the main theme of the novel is conflict between Conn’s life in America and his newly recalled life as a young man, the novel is also a reflection on life and family, and how we each must ultimately face ourselves.
David G. Tucker is an attorney with the Department of Children and Families in Jacksonville.
The Tooth Fairy
Jacob P. Hart
Reviewed by Steve LaCheen
Question: Who could write a novel in which a union grievance hearing and arbitration proceeding are the centerpieces of a story that will hold your interest from first line to last, whether you know anything, or even care, about labor/management relations?
Answer: The Honorable Jacob S. Hart, U.S. Magistrate Judge for the Eastern District of Pennsylvania, also known as Jake Hart.
Hart is a writer of demonstrated skill, with a fine ear for what is humor for the reader, and what passes for humor in the characters whose lives, fortunes, and sacred honor are played out in just the right amount of detail in the pages of his novel.
In the business and labor worlds of Lancaster, PA, Harry Greene and Peter Werner appear to be at the very top of their games. Greene owns the largest factory in the county. Werner runs the toughest Teamster Local. But Greene has been living a terrible nightmare for the past 10 years, while Werner, on many days, has to force himself to go to work.
The Tooth Fairy tells the story of these two men, drawn together by a senseless prank gone awry. A drunken ride on a Harley by a member of Werner’s union through the inside of Greene’s factory leaves a beloved watchman fighting for his life. At the same time, it leaves Greene face-to-face with his nightmare, and Werner face-to-face with his own moral dilemma.
To tell anything more of the plot would spoil part of the enjoyment of the story, not because it would reveal a surprise ending, but because it might spoil the enjoyment of being surprised that some chapters, rather than providing what might be expected from what went before, provide a totally logical, but equally unanticipated, change of direction.
The characters are well-defined, fully fleshed-out, and speak in tone and tenor perfectly appropriate to their station in life and the circumstances in which they find themselves. Their dialogue serves not only to reveal their inner character, but also the author’s skill in capturing nuance and the various levels on which the author’s humor operates, as well as what, in some instances, is only what the characters find humorous. All of this adds to the reader’s interest in anticipating each character’s next move in the chess-like game of life in which they find themselves, at various times, both willing and unwilling participants.
The novel would make a perfect film noir, with the protagonist going dark and a seemingly minor character becoming central to the resolution. In the tradition of the classic films of that genre, the book features main characters who find themselves embroiled in hopeless situations, fighting against forces that threaten to overtake them, forces that include their inability to resist temptation.
The book’s back cover refers to The Tooth Fairy as “an accurate portrayal of labor-management relations in every detail.” That’s like saying Moby Dick is a fish tale.
My opinion (for what it’s worth): a must read.
Steve LaCheen is a Florida Bar member practicing in Philadelphia, Pennsylvania.
Trial and Error in Criminal Justice Reform
Greg Berman and Aubrey Fox
Trial and Error in Criminal Justice Reform argues that public policy cannot be divided neatly into successes and failures. The reality, say authors Greg Berman and Aubrey Fox, is that some ideas work in some places some of the time. Good results are hard to sustain and even harder to replicate.
Berman and Fox, both executives with the Center for Court Innovation, detail lessons that can be applied to future reform programs by providing readers with high-profile examples of programs that have struggled to succeed, like Operation Ceasefire — which dramatically reduced teen homicides in Boston, but disintegrated when leaders of the initiative squabbled over money — and Consent to Search, an initiative of the St. Louis Police Department that succeeded in taking hundreds of guns off the streets, but came undone due to local politics and ill-fated implementation decisions. writing honestly about failure, the authors reveal what reform can and cannot achieve.
The paperback bookis available from Urban Institute Press (www.uipress.org) for $26.50.