Friday, December 30, 2016

Year-End Extravaganza (Part 4): Top 10 Books (Non-Compete) Lawyers Should Read

As the son of an English teacher and a school superintendent, there never was much doubt that I'd be a reader - either by volition or conscription. I was the kid who had "summer reading lists," which admittedly at the time seemed oppressive and unreasonable. However, I got over it. I took to reading books at an early age, a habit I'm sure steered me to choose law as a career. I've never gotten over it, and doubt I ever will.

I'd thought I'd end this crap-show of a year on a somewhat lighter note. I decided to list ten books that I think lawyers should read. This is nothing more than a catharsis, a way to divert us from the everyday grind of what we do. I appreciate those who read my blog and hope I've provided some interesting content for you. The year-end post, the last post, gets to be mine. Pardon the self-indulgence.

The first half of this list is geared (however slightly) to non-compete lawyers, and I explain why below. The second half of this list is not at all specific to my practice of law, but the books (both fiction and non-fiction) provide valuable lessons for attorneys of all stripes. Think of this as my gift to you. You're welcome...


10. Flash Boys (Michael Lewis, 2014). Anyone who has followed trade secrets law knows the plight of ex-Goldman Sachs programmer Sergey Aleynikov. His use of Goldman's proprietary computer code (many call it "stealing") sparked two criminal prosecutions and a separate civil suit. Along the way, Aleynikov almost single-handedly managed to cause Congress to change how federal law deals with the theft of products that affect interstate commerce. Flash Boys is not my favorite Michael Lewis book (try, Boomerang). But Aleynikov inspired Lewis to delve into the largely opaque world of high-frequency trading, which itself is punishingly secretive. And Lewis has an uncanny ability to deconstruct technical, difficult subjects and break them down into understandable terms that a layperson can understand. That's a gift lawyers should try to emulate in their oral and written presentations.

9. Worse than the Devil (Dean Strang, 2013). Dean Strang is one of the legal stars of the Netflix series, Making a Murderer. Before that series exploded, Strang published this concise study of the 1917 bombing of the Milwaukee Police Station and the ensuing trial of several Italian anarchists. The story in its own right is quite interesting, if for nothing more than the quick rush to judgment of a class of immigrants seems all too real in today's world. But principally, I recommend the book for its 6-page Preface. It's perhaps the best example of persuasive legal writing I have ever read. Non-compete lawyers must be good writers, because so much of our most critical work is done on written submissions to the court. If you want a legal writing primer, read this short passage.

8. Point Made: How to Write Like the Nation's Top Advocates (Ross Guberman, 2011). On the subject of legal writing, I veer into the technical with this selection. Legal writing books and blogs are ubiquitous now. But with apologies to Bryan Garner, I think Ross Guberman has the most bang for the buck with Point Made. The format of this book is really effective. He breaks down all the components of effective legal writing - structure, thematic elements, persuasion, language - with specific examples from top advocates' briefs. Lawyers earn their living by being effective writers. Too many fall well short. Guberman's book is a fantastic nuts-and-bolts of how to write well.

7. Talent Wants to be Free (Orly Lobel, 2013). Professor Lobel's book has received mention on this blog and is well-known to lawyers who practice in the field of restrictive covenants and trade secrets. Talent Wants to be Free is valuable for how accessible it is and for how it challenges much of the conventional wisdom that girds this area of the law. It is useful for anyone who practices in this field simply because lawyers will gain a better, macro understanding of economic and labor-market forces that create so much tension between the freedom to contract and the freedom to compete. This book forces the reader to think big, which is a quality lawyers too often lose in the heat of a particular battle.

6. Wonder (R.J. Palacio, 2012). Speaking of qualities many lawyers lack...empathy. This is the reason I chose Wonder - one of my all-time favorite books. It's a children's novel based around the story of Auggie Pullman - a 10 year-old boy with a severe facial deformity who for the first time is headed off to school. It's very rare that I read a book and think "everyone should read this." Wonder, however, is one of those books. Remember: children's books are not just for children. Back to empathy (which is the obvious theme of the book), it's a particularly important quality for lawyers to have in the field of non-competes and trade secrets. Many who pursue spurious and vindictive claims simply fail to understand the damage their conduct has on peoples' careers. I'll chalk it up to the never-ending quest to aggrandize legal fees, a shameless part of our profession.


5.  Fahrenheit 451 (Ray Bradbury, 1953). My mom - the English teacher - hates this book. I mean, really hates it. Dystopian novels are not for everyone, but I chose Fahrenheit 451 because it embraces a rejection of conformity. Our profession is undergoing a sea-change in the attorney-client relationship, the way in which we communicate, obtain fees for our work, and deliver services to our clients. Lawyers who blindly accept things the way are and always have been are doomed to fall behind in a declining profession. Fahrenheit 451 reminds lawyers they should embrace change and reject the fealty to tradition.

4. Sex, Drugs and Cocoa Puffs: A Low-Culture Manifesto (Chuck Klosterman, 2003). Because lawyers are uptight and need to laugh. This book will do it. Enough said.

3. Reflections on Judging (Richard A. Posner, 2013). I'm pissed off at Judge Posner. I think he has taken some unnecessarily gratuitous shots at judges and lawyers over the past year. His questioning at oral argument can be over the top. But, he still is the most influential judge in my lifetime not named Scalia. What he says is important, even if it's not how I would like to see him express it. I have read several of his books, and many I find to be inaccessible and unnecessarily dense (such as How Judges Think). However, Reflections on Judging is the one I recommend the most. He explores practical problems, such as the impact of technology on judging, as well as the theoretical, such as the flaws in the Scalia/Garner interpretive model. He also discusses problems that are less obvious, such as judges' reluctance to grapple with facts. Overall, this is a good read by a really important jurist. I wouldn't recommend this book to everyone. But lawyers? A definite must read.

2. Zeitoun (Dave Eggers, 2009). The aftermath of Hurricane Katrina is still one of the most disturbing events I can recall and one which I fear is still largely untold. Zeitoun explores this through the eyes of a Syrian Muslim, a businessman who stayed in New Orleans and toured the city in his canoe. Many themes of criminal and civil justice permeate this wonderful non-fiction account, including anti-Islam sentiment and the authoritarian governmental response to human suffering. This book exposes how Americans easily can lose their cherished civil liberties, ones that many of us take for granted.

1. The Fountainhead (Ayn Rand, 1943). Since this is my list, I get to pick my favorite book as one I think all lawyers should read. This novel about individualism certainly has great appeal to lawyers (Roark, the protagonist, is an architect). It is particularly appealing for attorneys who do not always embrace popular causes or represent popular clients. To me, the novel always has stood for its theme of individual self-determination. I can think of few greater lessons for lawyers to take than to stand up for one's beliefs (or her belief in her client), even at risk of public condemnation.


I hope this detour (or left-turn) has been interesting. I'll be thrilled if one of you decides to read one of these books simply upon my mere suggestion.You won't be disappointed.

In the meantime, get the hell out of here 2016. You really sucked.

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