MEDIA REVIEWS

International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts

David J. Levy, Editor
American Bar Association
2004, 388 pages, $99.95

Reviewed by EDIETH Y. WU

There International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts, edited by Houston attorney David J. Levy, is well written and extremely comprehensive. It is a “must have” reference for the seasoned international litigation specialist as well as for the aspiring specialist in this field. This book is a detailed practice guide for those bringing cases on behalf of a domestic client against an international defendant or those defending cases involving foreign plaintiffs and domestic defendants. All aspects of pre-trial and post-trial preparation are thoroughly covered; a step-by-step, A to Z checklist is included that offers invaluable substantive information about navigating complex cases through the litigation process.
The book is divided into nine chapters. The first three chapters cover “Service of Citation on Foreign Parties,” “Personal Jurisdiction Over Foreign Parties,” and “Federal Subject Matter Jurisdiction in Federal Court in International Cases.” These chapters emphasize both traditional U.S. procedures as well as fine distinctions attributable to the foreign jurisdiction’s rules. For each area, the authors dissect the applicable rule to demonstrate how compliance should be accomplished. The Federal Rules, Hague Service Convention, Inter-American Conven-tion, Due Process Considerations, and Raising Objections from both perspectives are considered, including U.S. requisites and international requisites. The chapter concerning personal jurisdiction over foreign parties, which must be accomplished through minimum contacts, proffers an in-depth discussion of minimum contacts, including how the Internet may be incorporated into the minimum contacts analysis. Federal subject matter jurisdiction is next discussed with as much care and depth as the personal jurisdiction prong, highlighting the U.S. Constitutional and federal statutory requirements. The four essential categories of federal jurisdiction are simplified: (1) federal question – “arising under”; (2) diversity – “nature of the parties to the lawsuit”; (3) removal – “from state to federal court”’; and (4) supplemental jurisdiction – “related claims that . . . form part of the same case or controversy.”
Chapters four through six cover “Antisuit Injunctions in Multinational Cases,” “Compelling Arbitration in International Cases,” and “Forum Non Conveniens in International Cases.” These chapters explore comprehensive strategies that parties employ to prevent opponents from instituting or continuing a case in a potentially inconvenient or hostile jurisdiction. The authors artfully highlight and discuss other strategies, i.e., avoiding litigation either contractually or by instigating an alternative under a multilateral or bilateral treaty (arbitration), and, in the alternative, ways to ensure that the trial is in a convenient or alternative forum (forum non conveniens motions).
The last third of the book, chapters seven through nine, covers “Choice of Law in International Cases,” “Con-ducting Discovery in Foreign Countries,” and “Enforcing and Resisting Judgments.” This section maps out the steps that must be taken once the attorney has successfully avoided pre-trial hazards – those hazards which, if not for the expert advice of the first six chapters, might have led to dismissal. Specifically, this section explores the applicable law and what effect transfer has on choice of law. Substantial barriers are at the forefront of discovery abroad, and they often ensnare the unsuspecting.
Additionally, foreign courts’ reticence to enforce perfected U.S. judgments adds to the need to avoid pitfalls in the stages up to judgment. Getting the judgment does not ensure enforceability. The book carefully analyzes the subtle distinctions between gathering evidence in the U.S. and in foreign countries – including a discussion of extraterritorial depositions and a country-by-country look at discovery under the Hague Evidence Conven-tion – providing the practitioner with a map for navigating this ground. Unfortunately, once an attorney receives a judgment, additional work is required. Thus, it is crucial that the international litigator be familiar with provisions for enforcing judgments in the U.S., notably the Uniform Foreign Country Money-Judgment Recognition Act, as well as defenses to enforcement and reciprocity.
The authors have included excellent “practice tips” sections with each chapter. These explain both rudimentary and complex areas (which are often inadvertently disregarded in an attorney’s desperate desire to maneuver through the international litigation minefield) to ensure that unfamiliar territory does not have a deleterious impact on the end result. These tips can help prevent oversights that could lead to irreparable outcomes. The book also includes a skillfully crafted “international guide” that red-flags many of the precautions that must be undertaken to ensure success.
Finally, the authors have constructed an excellent chart that allows an attorney to quickly check an alphabetized list of countries where The Hague Service Convention is in force. Each country’s Central Authority is listed, as well as the type of service required or accepted, and whether translation is necessary. The miscellaneous section of the chart clarifies certain nuances for each listed country; for example, Switzerland accepts letters interrogatory as a substitute for service. The “practice tips” sections following each chapter “provide scores of unequivocal strategies, ‘practical tips, for avoiding tactical errors.” Those sections alone make this book well worth the investment.

Edieth Y. Wu is an associate professor at Thurgood Marshall School of Law, where she teaches courses in international law.



The Language Police:
How Pressure Groups Restrict What Students Learn

Diane Ravitch
Knopf
2003, 255 pages, $24.00

Reviewed by ROBERT W. HIGGASON

In the movie Sleepless in Seattle, Tom Hanks’ character, Sam, was dismayed by 9-year-old son Jonah’s uncertainty about the location of Oklahoma. Sam: “Do you even know where Oklahoma is?” Jonah: “Somewhere in the middle?” Sam: “I’m not even going to think about what they’re not teaching you in school.”
According to Diane Ravitch, author of The Language Police: How Pressure Groups Restrict What Students Learn, the problem of what is, and is not, being taught in schools is more than comedic movie filler. It is real, serious, and pervasive, and is the result of orchestrated efforts to change our children’s education as a way to reshape American society. Ravitch names numerous pressure groups – some from the political left and others from the right – who control the content of public education, screened through their social and political values.
Ravitch, a Houston native, first became aware of this phenomenon, which she calls “a huge scandal in American education,” while serving on the National Assessment Governing Board (a nonpartisan federal agency that supervises national testing). Upon joining the NAGB in 1998, she began working on the proposed new voluntary national tests, reviewing reading passages for possible use in the fourth grade. When her committee submitted passages and test questions, the test contractor, Riverside Publishing (publisher of the Iowa Test of Basic Skills), recommended that many of the passages be deleted because of perceived bias or insensitivity. Riverside’s president told the committee “to bear in mind that ‘everything written before 1970 was either gender biased or racially biased.’ He said this very casually,” reports Ravitch, “as though he was uttering a truth too well known to need explanation or defense.” The Riverside guidelines require tests “‘to avoid language, symbols, gestures, words, phrases, or examples that are generally regarded as sexist, racist, otherwise offensive, inappropriate, or negative towards any group.’ In addition,” she adds, “tests should not contain any subject matter that anyone might consider ‘controversial or emotionally charged.’”
Prompted by her experience on the NAGB committee, Ravitch, a historian of education, began investigating self-censoring programs among publishers of educational materials for grades K-12. Her academic achievements and governmental appointments provide stellar qualifications for this investigation and the resultant book. The Language Police is her eighth book on the history of education; she has edited 14 additional books and authored some 400 articles and reviews.
In The Language Police, Ravitch explains that test and textbook publishers do not only seek to avoid controversy and offense, they also seek to promote values contrary to traditional American values, and to obscure historical fact and even geographical distinctions. Those goals came from pressure groups at both ends of the political spectrum. The political right has topic control, while the left has control over language and images. Forbidden topics include:
Abortion; Creatures that are thought to be scary or dirty, like scorpions, rats, and roaches; Death and disease; Disrespectful or criminal behavior; Evolution; Expensive consumer goods; Magic, witchcraft, the supernatural; Personal appearance (such as height and weight); Politics; Religion; Social problems (such as child abuse, animal abuse, and addiction); Unemployment; Unsafe situations; and Weapons and violence.
The left’s control over language and images involves “representational fairness,” “language usage,” and “stereotyping.” Images and reading passages should “include equal numbers of males and females, and proportionate representation of all groups in terms of ethnicity, age, socioeconomic background, gender, community setting, and physical disabilities.” The guidelines also require that children not be tested, or even taught, about mountains and snow, deserts, or tropical vegetation, because children who do not live in such locales will be unable to understand those concepts and will become victims of regional bias.
Under the guidelines, “the world may not be depicted as it is and as it was, but only as the guideline writers would like it to be.” Stereotypes are to be avoided with a vengeance. Women must not be depicted as wives or mothers, and certainly not homemakers, regardless of historical or contemporary fact. And despite the fact that in many eastern cities large numbers of police officers have historically been Irish, no Irishman can ever be presented as a policeman, even in historical passages. Even the terms “Irishman” and “policeman” are forbidden, as are all words ending in “-man” (other than “human”).
In addition to Riverside’s guidelines, publisher Scott Foresman–Addison Wesley (SF-AW) promulgated its own Multicultural Guidelines – 161 pages of “idealism and authoritarianism . . . [that] impose a strict code of political and social correctness. They call for sweeping social and pedagogical changes.” Under the SF-AW guidelines, much of history is to be rewritten or ignored, with the apparent goal of settling old scores:
[T]he guidelines tell authors to acknowledge the highly dubious notion that the Constitution of the United States of America was “patterned partially after the League of Five Nations–a union formed by five Iroquois nations.” The fact that this debt is not mentioned in the well-documented constitutional debates is of no concern. Textbook authors are expected to promulgate ideas that appeal to ethnic pride, even at the risk of endorsing spurious history.
Although the SF-AW document emphasizes the importance of racial and ethnic pride, it suggests that children of European American descent need to have their pride reduced. European Americans, it says, have received too much credit for achievements that really belonged to other cultures. . . . . European Americans, it seems, are the only group that must be taken down a few pegs; their self-esteem is too high.
This anti-European-American posture is further embodied in the highly influential McGraw-Hill guidelines. Ravitch notes that the MH guidelines “express barely concealed rage against people of European ancestry.” Even the term “America” is not to be used because, according to bias guidelines, there is no such place.
The book contains two appendices. The first, “A Glossary of Banned Words, Usages, Stereotypes, and Topics,” covers 31 pages and contains nearly 1,000 entries. The second, “The Atkinson-Ravitch Sampler of Classic Literature for Home and School,” proffers a list of literary works traditionally valued by our society but which have been pressured out of school curriculums.
People over 40 may find it difficult to believe what has become of American public education, while younger people who have grown up under such guidelines may wonder what the fuss is all about. Young Jonah’s ignorance of American geography only hints at the true weakening of America’s knowledge base, and father Sam was right to be dismayed. In addition to deficiencies of historical and geographical knowledge, there is no longer a shared knowledge base about literature. Classics have been replaced with meaningless fluff: “Today’s literature textbooks reflect the state of the field of English language arts: large, beautifully packaged and incoherent.”
Ravitch describes the impact of the Riverside guidelines as “important and dangerous . . . in American education.” She considers these developments a threat to our literacy and even to our national psyche: “We have never had a language police or a thought police in this country, and we should not have one now.” Ravitch offers suggestions for how to stop the language police. She also continues her research into the pervasiveness of self-censorship in education and maintains a website, www.languagepolice. com, through which the public may report additional instances of censorship. This is an important book that is most highly recommended.

Robert W. Higgason is a solo practitioner whose work focuses on appellate matters. He is a long-time member of The Houston Lawyer editorial board.



Time Matters / Billing Matters

LexisNexis
800-328-2898
www.timematters.com

Reviewed by AL HARRISON

Time Matters is a well-established, award-winning law practice and business management suite of applications that is delivered with a new sister application, entitled “Billing Matters.” Indeed, Billing Matters fits hand-in-glove with Time Matters, its host.
If your billing experience suffers from not having the same look-and-feel and behavior as your calendaring, docket control, case management, and client contact monitoring, then luck is with you. LexisNexis provides a synergistic implementation that integrates virtually every function necessary to enable lawyers and law firms to inexpensively establish and sustain efficient operation. Such a computerized “benefit package” has eluded competing software tools that purport to provide time and billing for law office environments. Thus, with Billing Matters exhibiting the proven and familiar behavior and look-and-feel of Time Matters, users conversant with Time Matters may now readily enjoy tight integration between these sister applications. But, not to worry: users new to both Billing Matters and Time Matters will benefit out-of-the-box from the inherent harmony of a myriad of feature sets that beg for real-time law practice management challenges.
A highly recommended way to become conversant with Billing Matters is to invoke the convenient and easily-understandable Navigator feature on the Main Toolbar. The default Navigator, entitled “Regular Activities,” primarily portrays the interrelationships between the Quick Item, the Timesheet, the Add Bill Item, and the Billing List. As its name implies, this Navigator feature affords the user a guiding light for accessing a plethora of comprehensive billing functions from a single location, and affords a simplified visual representation of the interdependence among these functions.
As the heart of billing and invoicing, time and expense data may be expeditiously entered into the underlying database via a Quick Item option. After a date range and applicable staff are specified with appropriate filters, a corresponding limited number of (filtered) billing records are displayed. On the Quick Item display, according to well-established Time Matters protocol, displayed columns may be routinely customized — including the order of tabbing from left-to-right across the columns. This Quick Item option is preferably invoked prior to invoking the Bill Flow Manager.
The Bill Flow Manager is designed to manage all billing functions — including creating a list of clients to bill; displaying all time and expense entries for a client or matter; displaying all transactions for a client; reviewing applicable interest and taxes; displaying time expended by staff; batch-entry of billing items; generating pre-bill reports; printing bills, reminders, and statements; displaying client billing history; and creating batches of final bills. The prerequisites for invoking the Bill Flow Manager and for invoking billing procedures, in general, include: selection of billing method and assurance level, defining program level setup, billing rates, billing codes, billing preferences, and “billable” client/matter records. Once this billing environment has been thoroughly defined to Billing Matters, the Bill Flow Manager is ready to create multiple bills, track in-process bill creation, print pre-bills for staff review and comment, and print final bills.
Billing Matters provides Bill Express to allow you to create an invoice and to receive payment in one step — would you believe with no setup? As its name implies, Bill Express is designed to apply the built-in knowledge and intelligence of the Time Matters - Billing Matters partnership to simultaneously jump through all hoops to quickly generate invoices. Bill Express just needs to know bill date and the items to be billed. You will be amazed at Express Bill’s blazing speed; it leaves Metro’s Light Rail in the dust!
Billing Matters generates bills and invoices based upon the underlying interrelationships among Billing Profile, Bill Designer and Bill Layout. These interrelationships must be pre-established in Setup under Billing Options. While a plethora of “standard” bill and invoice formats are provided, you will probably implement some billing functions via customized billing layouts courtesy of Bill Designer.
Bill Designer, acting in consort with Billing Profile, provides a series of tabs to help you design a report on a section-by-section basis. Tabs include: First Page Headers; Other Page Headers; Page Footers; Fees; Expenses; AR Items; Tax; Aging; Phase; Staff; Totals; User Defined; Consolidated; and Miscellaneous. Applicable fields are enumerated on the Bill Designer screen so that you may easily select from these fields as needed.
A handy feature of both Time Matters and Billing Matters is “Power View” which provides you an instant real-time preview window of key fields of the highlighted listed record – without requiring you to actually open the record. Its behavior is similar to the Real-Time Preview feature that was warmly received when first introduced a few years ago for WordPerfect users.
Time Matters’ proven, rock-solid underlying database is the most reliable database that you will have occasion to use. Even under recurring deficiencies and vulnerabilities manifest by incarnations of Microsoft Windows®, Time Matters relentlessly “keeps on ticking.” In addition, technical support for Time Matters and Billing Matters is generally equivalent to the well-known and respected WordPerfect technical support that peaked in the 1980’s. There is available not only a user-driven listserv, but also an online knowledge-base that answers and shares users’ questions and problems, and the corresponding answers and solutions suggested by Time Matters-authorized independent consultants.
The synergy between Time Matters and Billing Matters affords a quintessential law office experience. Once you incorporate this combination into your practice, you will quickly realize that it is not impossible to cope with the seemingly never-ending inundation of paper-piles and information-streams after all!

Al Harrison is a patent attorney practicing intellectual property and computer law, and related mediation, with Harrison Law Office, P.C. in Houston.

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