Utah Bar Journal

Cultural Issues in Criminal Defense – 2nd Edition
Linda Friedman Ramirez, Editor
Reviewed by Lori J. Seppi

Consider this scenario depicting an open-and-shut case that plays daily in courts across our country:

The suspect is charged with a crime. He is arrested, waives his Miranda rights, and confesses. Later, after meeting with his attorney and discussing his case, the suspect enters a guilty plea to reduced charges. Thereafter, he is sentenced to a year in jail and placed on probation.
Now, consider the same scenario with one fact added – the suspect recently emigrated from Mexico.

Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves

by John Kroger

Reviewed by Ralph Dellapiana

I am going to start this review with a disclaimer. I am biased, particularly against prosecutors. I am a public defender, and through years of trench warfare I have wounds enough to have learned to have a healthy skepticism about the difficulty of getting “justice” in the criminal justice system. And I blame a lot of the problems on prosecutors. More than one prosecutor has told me he or she can’t do the right thing, or doesn’t care if my client is innocent, or if the police are lying to make a bad arrest stick.

How to Build and Manage an Estates Practice, Second Edition

by Daniel B. Evans, Esq.

Reviewed by Nathan C. Croxford and Andrew L. Howell

If his most recent publication, How to Build and Manage an Estates Practice, is any indication, author Daniel B. Evans must have been a master issue-spotter in law school. In just 205 pages, inclusive of appendices and index, Evans manages to identify and discuss, in clean, economical, and very readable prose, nearly every conceivable issue, problem, or challenge that an attorney might encounter in building and maintaining an estates practice. Coverage ranges from client-generation in the Internet age, to ethical considerations in modern estates practice, to office technology and automation, innovative client communications and billing practices, and more.

No One Makes It Alone

by Andrew A. Valdez

Reviewed by J. Simón Cantarero

No One Makes It Alone (2006) was written by Andrew A. Valdez. Many readers will recognize the author as Judge Valdez of the Third District Juvenile Court. This book is Judge Valdez’s first book and is an autobiographical story about a critical time in his youth. While the book may not win any awards for being a literary masterpiece, it should be required reading for practicing lawyers to remind them of the importance of having and being a mentor, not only for their chosen profession but for life. The book is worth at least 3 CLEs.

With Hope Across America
A Father-Daughter Journey
by Bob Braithwaite

Reviewed by Cathy Roberts

Good books should make you want to get up and do something: eat a delicious meal, fall in love, or even travel with your not-so-small child through 37 states across America.
This book creates that desire to hit the road. Written by Bob Braithwaite, part-time U.S. magistrate, and former district court judge from Cedar City, it has little to do with the law, and everything to do with being a parent, and a child. Not that it is a parenting guide, mind you; rather, it is a guidebook to seeing the United States in a truck accompanied by a willing but skeptical family member.

Blind Justice? A Review of Missing Witness

by Gordon Campbell

Reviewed by Betsy Burton

In theory, justice must be blind if it is to be fair; the same may be said of book reviews. If a critic is for some reason prejudiced for or against a book, the resultant review is likely to be biased. That being said, it is best to warn readers at the outset that this review is as far from blind as a review can be since (1) I’m not a critic but a bookseller, (2) I know and like Gordon Campbell, and (3) I feel about Missing Witness like a mother hen might feel about her favorite chick. The good news is that therein lies a tale (although not one I’m going to tell in this review). The bad news is you’re unlikely to hear snide comments, plot quibbles, or literary character assassination from this source – although in fairness there are few reviews in this town or across the nation other than that in the Deseret News (a subject that I suspect had more to do with religion than reality) that were anything but wholly positive.

Business and Commercial Litigation in Federal Courts, Second Edition

Edited by Robert L. Haig

Reviewed by Michael D. Zimmerman

Commercial litigation is a vast arena. In the course of practice, one is constantly confronted with new issues, often legal but perhaps more often practical. The many tactical and strategic questions that arise are every bit as subtle as any the courts address, and the answers appropriate to a particular situation are far less certain because of the varying and complex factual contexts in which they are encountered. An experienced litigator will have plumbed the depths of a number of substantive areas and will have addressed many practical problems of litigation tactics and strategy. However, no matter how sage, any such lawyer will find this eight volume treatise invaluable for its scope and depth, and for its down to earth practicality.

The 4-Hour Workweek: Escape 9-5, Live Anywhere, and Join the New Rich
by Timothy Ferriss

Reviewed by Bentley J. Tolk

Can lawyers reduce their working time to four hours per week? Probably not. Can lawyers dramatically reduce the number of hours they work? The 4-Hour Workweek, a New York Times bestselling book, suggests that they can.

Timothy Ferriss, the book’s author, is a Princeton graduate who began his career working 12-hour days for a start-up company. After getting burned out and discouraged with the corporate world, Ferriss started his own dietary supplement company through $5000 in credit card debt and lots of outsourcing. Although his supplement company became successful relatively quickly, Ferriss found that he was working 12-hour days seven days a week as a result. He subsequently decided to simplify his role with the company and to make himself “expendable.” Thus, Ferriss bought a one-way plane ticket to Europe, where he began operating his supplement company through one hour of e-mails each Monday morning. Astonishingly, the company’s profits increased by 40% as Ferriss lessened his hands-on role in operating the company.

Law & Mental Health Professionals – Utah
by Leslie Pickering Francis and Linda F. Smith

Reviewed by Judge Judith S. H. Atherton

Providers of mental health services (MHPs) are affected by the law in numerous ways. Not only does the law govern their credentialing, licensing, business practice, and personal liability but also, and, importantly, it dictates their direct participation in the administration of the legal system. MHPs increasingly are called upon to provide expert opinions and testimony on subjects ranging from an individual’s competency to participate in court proceedings, marry, enter a contract, vote, sign a will, or testify in court about that person’s mental status, amenability to treatment and even the likelihood of effectively responding to a prescribed medication treatment regimen to restore competence. Lawyers and MHPs do not necessarily speak the same language, but they must interact on a regular basis. Law & Mental Health Professionals – Utah seeks to be a comprehensive and accurate review and integration of all the law that affects MHPs in Utah. This book is the latest in a series of similar state volumes published by the American Psychological Association, which has a stated goal of having such a book for each state and federal jurisdiction and for the District of Columbia. It is, then, a handbook, written primarily for the MHP, in language readily understood by non-lawyers, but it is also a valuable resource for the law-trained. It is meant to provide an accurate statement of the existing law only and offers neither critique nor commentary on the law’s substance.

The Ministry of Special Cases
by Nathan Englander

Reviewed by Betsy Ross

Set during Argentina’s Dirty War of the 1970s and 1980s, The Ministry of Special Cases captures a society in which passivity is paramount and truth is what the government says it is. Thus, when the government kidnaps suspected dissidents (or unsuspected innocents, as appears to be the case with the book’s character Pato), and denies it has done so, the Patos of society are spoken of as being “disappeared,” and a lie becomes truth – as if the disappeared never existed at all.

Later in Life Lawyers: Tips for the Non-Traditional Law Student
by Charles Cooper
Reviewed by Catherine E. Roberts

Having lived this book, I wish had read it before I went to law school at age 41. Linked to a website known as www.nontradlaw.com, it is filled with useful information about who chooses to go to law school, why they do it, how they get in, and how to succeed once admitted. It recommends study techniques and contains comments from many people in different situations – from the older, married students with past careers, to the ones who are “non-traditional” because they took a few years off between college and law school but are still in their early twenties. The book takes advantage of recent commentary from current law students, quoting directly from lengthy emails.

Thunder Over Zion: The Life of Chief Judge Willis W. Ritter
by Parker Nielson and Patricia Cowley
Reviewed by Todd Zagorec

A friend gave me a copy of Thunder Over Zion: The Life of Chief Judge Willis W. Ritter by Parker Nielson and Patricia Cowley. I knew almost nothing about Judge Ritter, and only an odd memory from high school kept the book from joining the dusty stack I really intend to read someday, but didn’t actually pick out for myself. I remembered Willis Ritter as the crotchety old judge who declared the Salt Lake City parking ordinance unconstitutional and ordered Jake Garn to stop writing parking tickets. I like eccentrics, and that was enough to get me to open the book. I was surprised. There are plenty of sidebars about the quirky, grouchy judge, but there is also real drama in the flawed brilliance that made Ritter’s life a Greek tragedy set against the law, politics, and personalities of Utah in the 20th century.

Sundance 2007
by Betsy Ross

Each year I am reminded of how fortunate we are to have the Sundance Film Festival right here in our midst. And I’m not talking about star-gazing. I’m talking about the chance we have to be educated with a minimum of cost, and a modicum of hassle. Many of the films show in Salt Lake City, where one can escape the frenzy of Park City, and just settle in to a cozy theater (showings at the Tower, the Broadway, and Rose Wagner theaters) and watch a film. But not just any film. These are films that can change your heart, your mind, your orientation towards life. This year was no different.

Saviors
by Paul Eggers

Reviewed by Betsy Ross

I find myself waking up these days to a kind of hazy depression attributable to some extent to mid-life crisis, I suppose, but to a greater extent I am probably no different than many who harbor what seems to be a lingering dis-ease with the world around them. From the very local to the world-wide scene, I feel oppressed by leaders who are not "leaders," by the elevation of differences over commonalities, and by the pure, unadulterated hubris exhibited by those in power.

Life in the Law: Answering God's Interrogatories

Galen L. Fletcher and Jane H. Wise, editors

Reviewed by R. Lee Warthen

Every lawyer should read this book. This recent book of thoughts on being a Latter-day Saint lawyer is good meat for the souls of lawyers of any denomination.

You never know what is going on in some back room at BYU; what is being shared at some private little fireside or convocation that those of us outside the greater Provo area are not likely to notice. Now, many of the pearls of wisdom dropped at twenty-six such occasions have been gathered up by Galen LeGrande Fletcher and Jane H. Wise into this little volume entitled Life in the Law: Answering God's Interrogatories.

Overcoming The 6-Minute Life:
How And Why The Legal Profession Should Free Itself From Billable Hours

by Bentley J. Tolk

Reviewed by Russell A. Cline

Most lawyers earn their living by billing clients for services rendered, and most lawyers bill their clients based on the number of 'billable hours' spent on the client's case. In Overcoming the 6-Minute Life, Utah lawyer Bentley J. Tolk makes a persuasive case for the argument that the 'billable hour' system is responsible for much of the current dissatisfaction experienced by lawyers. Tolk also presents a number of ways to mitigate the negative effects of the 'billable hours' system, as well as alternatives thereto.

In discussing his topic, Tolk integrates an impressive amount of research, including literature from both the legal and popular press. For example, Tolk cites a number of empirical studies demonstrating the increasing problem of lawyer 'burn out,' the recent increases in the 'minimum billable hours' required at large and medium law firms, and how the two are related. One informal study, on 'why graduates of the Harvard Law School Class of 1990 were quitting the practice of law in droves,' observed that by the year 2000, one-half of that class was no longer working in law firms, and twenty-five percent were no longer practicing law. Another commentator noted that 'many new lawyers view themselves as being in a rat race where they are moving ahead without an end in sight. The work of billable hours becomes a monotonous, never-ending reality with no inherent meaning and with no opportunity to be free. . . . Many lawyers have arguably forgotten what it means to play or to experience joy.'

Tolk cites one commentator who stated that 'for each 100 hours that a lawyer bills over 1,500 hours in a given year, 10 percent of the lawyerÕs soul dies.' When a lawyer routinely leaves the office at 8:00 p.m. instead of 6:00 p.m., his or her time with children, a spouse, or recreation becomes almost non-existent. Billing demands often become so all consuming that pro bono work, community service and other activities within the law firm cease to exist. Lawyers rarely have a lunch 'hour,' but will frequently 'wolf down' a sandwich in their office so as to 'make up' for missed billable time. Social outings and holidays seem like items on a checklist that need to be completed so that the lawyer can get back to work. When a friend or family member calls a lawyer during the day, the lawyer resents the intrusion since the missed billable time will have to be made up later. The lawyer begins to value himself or herself based on the number of billable hours he or she produces. He or she constantly has to justify his or her existence in terms of feeding the firmÕs bottom line through billable hours.

Tolk also discusses how billing by the hour often provides the wrong incentives. The system rewards inefficiency since the longer it takes to complete a task, the more the lawyer is paid, irrespective of the value of the work performed to the client. However, '[a] law firm is a business, and the lifeblood of that business has generally been the billable hour.' Tolk has a number of suggestions for how the interests of the firm and the client can be harmonized. Interestingly, Tolk makes a strong case for not under billing clients, arguing that such a practice usually does a disservice to both the client and the attorney.

Tolk also includes a section addressed to law students. As Tolk correctly notes, many law students have a 'rose-colored' view of working in a large law firm. He relates the story of a lawyer who left a large law firm for an academic position, only to find that most of his students wanted to join the same law firm that he and his former colleagues were so anxious to escape. Some law firms are also less than honest during the 'wining and dining' process of recruiting law students. As a result, some new lawyers are shocked by the demands that are suddenly placed upon their time.

In recent years, the starting salaries for new associates have increased dramatically at many large law firms. Tolk notes the irony in this trend, since each time that the salaries of starting associates in a law firm are raised, lawyers at all levels must bill more hours, since increases in billing rates have not been able to keep up with the increases in compensation for new associates. Tolk also dispels the popular myth that lawyers in large firms simply need to work hard for 7-10 years, and then they can live a balanced, affluent lifestyle for the rest of their careers. In fact, the 'treadmill' continues and is not diminished for senior lawyers and partners. Furthermore, many lawyers often spend most of what they make, and do not save much. This keeps many lawyers on the billing 'treadmill' well into their late 60Õs to make ends meet.

Tolk suggests a number of ways to control the negative effects of the '6-Minute Life.' These include setting specific hours to arrive at work and leave work, and other rules as to when work will be allowed to infringe on personal time. Once set, however, boundaries need to be strictly observed to prevent the demands of billable hours from engulfing other aspects of the lawyerÕs life. Similarly, the lawyer must abandon the concept that there can never be too many billable hours, and he or she must view billable hours as 'putting money in the bank.' Once the 'billable hours' account is built up (i.e., the lawyer is ahead of schedule), the lawyer has more flexibility in structuring his or her life.

Lawyers who focus on 'niche' practices (such as tax law, employment law, securities, or environmental law) are relatively more content than lawyers who are less specialized. Specialization provides the intrinsic satisfaction that comes from mastering an area of the law that one loves, and developing a reputation and client basis in a specialized area. 'Niche' practices also often lend themselves to 'value billing,' where the lawyer can bill a flat fee for a particular procedure, irrespective of how many 'billable hours' may be required. A lawyer's fee for services becomes tied more closely to the value produced, rather than the number of hours worked, which is inherently more satisfying. Tolk also addresses a number of alternatives to 'hourly billing,' including 'contingency billing,' 'value billing,' 'flat fees' and bonuses for success.

Overcoming The 6-Minute Life provides a thorough and well-written discussion of its topic. The audience includes any lawyer who bills clients for services rendered on an hourly basis, as well as every law student. TolkÕs writing style is brisk and clear and makes for a very easy read. The book is also well organized, and lends itself well to readers who like to'jump around.'

Tolk has also been unusually candid as to his personal struggles in balancing the '6-Minute Life' with personal and family demands. For example, Tolk discusses having to leave the events surrounding two family funerals early because of the pressures of billing time. His personal comments are a welcome addition that serves to illustrate and personalize many of the concepts he discusses.

Most importantly, the book addresses a very important topic to the legal profession. It serves as a cautionary tale to newer and more seasoned attorneys as to the physical and emotional toll that the 'billable hour' system can extract. It also provides insights and suggestions that are practical, useful and well worth considering. Tolk has set up a website at www.6minutelife.com, which provides additional information, for those interested in the topic. The book is currently available at that website or through e-mailing Tolk directly at bentleytolk@6minutelife.com.

Book Review: Reading Lolita in Tehran, The Last Summer of Reason
Reading Lolita in Tehran, by Azar Nafisi

The Last Summer of Reason, by Tahar Djaout

Reviewed by Betsy Ross

What role does literature play in a repressive theocracy? That is a topic each of these novels, one by an Iranian-born professor of English literature and the other by an Algerian writer, addresses. In the process, each gives a glimpse into the Muslim world, giving us a chance to see behind the veils and the homogenous images Islam invokes in Western society. It also provides us a chance to take stock of our own inching toward theocracy - the merging of religious beliefs and political ideology - telling a cautionary tale if we are willing to hear it.