Book reviews

Developing Resilience: The Key to Professional Success

Fiona Westwood
PUBLISHER: MATADOR/TROUBADOR
ISBN: 9781848764323
PRICE: £24.99

“Developing Resilience is designed to help good professionals who want to do the best job they can for their clients and care about the quality of the services they deliver. It provides them with practical support to get through what is sometimes the hard slog of professional practice. It details what actions they need to take at each stage of their career to build their personal resilience.

“It offers leaders and senior managers help with creating and maintaining a culture that allows good professionals to self-manage, enabling them to concentrate their efforts on dealing with underperformers. It also allows people to get the maximum value out of work-based learning and develop the long-term resilience of their organisations.”

This quote is from the back cover of Fiona Westwood’s third book. It certainly does what it says on the tin. This is a well-timed book – following up her earlier publications, Achieving Best Practice, and Accelerated Best Practice – and in the current turbulence in the legal profession, both in relation to the external economic environment and the changes within practices, it is right to focus on resilience as the key to survival and success.

Fiona Westwood’s credentials are unimpeachable and in this very readable book, which extends to just under 150 pages, she identifies lessons for all professions and professional service firms. There are messages for individual solicitors, large firms, small firms, professional educators and professional bodies.

I have a theory that most management books these days have perhaps 80 pages of good content in them, padded out to 250/300 pages with advertorials and case studies. This book remains lean and mean and is essential reading for any Scottish lawyer who takes his or her professional development seriously. It also avoids another offputting feature of management books – jargon.

Sadly there is a culture in our profession in Scotland which says management books are only for big firms. Not so. It is the high street, constantly traduced by many and under threat, which needs to take on these messages.

Chapter 8 has messages for professional educators. The author touches on the unsustainable divide in a small jurisdiction between the academic lawyer and the practising lawyer. There is little sign of this barrier of mutual disrespect in other similar jurisdictions such as Australia and Canada. We in Scotland have very few people whose credibility bridges the gulf – Professors Reid, Gretton, Barr and Rennie being among the exceptions that prove this sad rule. It is particularly important in this era of recession and significant and structural change in legal education that dialogue leads to understanding.

The book is interesting in its return to the concept of “craft”, an era where the profession seems to be rushing towards demystification and process. It identifies three stages in the professional evolution from novice to journeyman to master, and at a time when many question whether or not they should be a solicitor at all, its faith in professionalism, and indeed the author’s commitment and idealism for the profession in which she operates, shine through.

At a time when the profession is still trying to adjust to a new equilibrium point between the demand for its services and its ability to supply them, competent and visionary management will be the determining factor for success. It is for that reason that I recommend that everyone reading this review set aside £24.99 and four hours of their time to take on board the messages this book contains.

Drafting Commercial Agreements

Richard Christou
PUBLISHER: SWEET & MAXWELL
ISBN: 9781847036100
PRICE: £188.24 (WITH CD, INC VAT)

The fact that this is the fourth edition of this book is testimony to its usefulness to the profession. It is well written with a comprehensive bank of precedents in both paper and electronic format that suit most circumstances that a business lawyer might encounter in practice. There is also an excellent table of cases along with a table of legislation, both primary and secondary.

The stated aim of this book is to provide, in one volume, all the essential precedents (together with the accompanying legal commentary and explanation) for the various commercial relationships that a business lawyer is likely to meet. I am pleased to say that this not inconsiderable objective has been achieved during a period when there have been a number of legislative and other developments, not least in the fields of consumer contracts, employment law and freedom of information etc.

Part I contains an excellent analysis of the Unfair Contract Terms Act 1977, set against the backdrop of a review of the basic principles on which the law has developed. Chapter 2 reviews standard conditions and what has come to be known as “the battle of the forms”. There are a number of useful precedents in this section, e.g. standard conditions for the sale of secondhand goods (precedent 2.4). Precedent 3.2 is also very useful – standard conditions for the supply of consultancy and testing services. Clause 2.1 deals with the battle of the forms by requiring the customer to sign a duplicate of the proposal and return it by way of an unqualified acceptance in order to create the contract between the parties.

Chapter 1, 8.6 deals in some detail with the EU Electronic Commerce Directive, which is designed to provide a framework for the way in which services are provided over the internet. This directive is of importance in a number of areas of law, not least in the field of conveyancing where electronic missives will soon be a reality.

Part II deals with the subject of agency and distribution and the important backdrop of EU law. There are a number of very useful precedents of both short and long form agency agreements – precedents 7.1 and 7.2.

Part III deals with mergers and acquisitions, following the same style of describing the basic principles before outlining certain core styles, e.g. a short form disclosure letter (precedent 10.3). There is also a useful style of business transfer agreement (precedent 11.1).

Among other matters dealt with are joint ventures (chapter 12); confidentiality agreements (chapter 13), especially the analysis of the so-called “springboard doctrine” at para 13.4; and employment contracts (chapter 14). The latter is, of course, a huge subject. Chapter 15 deals with collaboration agreements, which are described as “teaming agreements”. The author distinguishes these from joint ventures or partnerships in that they are entered into for a limited period of time and for a restricted and well defined purpose. It is an interesting distinction to have made.

Under the heading “Securities for Debts”, chapter 16 contains various precedents for retention of title clauses. Chapter 17 deals with dispute resolution and settlement agreements, and provides useful precedents that can be used to record and implement an agreed settlement.

Finally, chapter 18 provides commentary on technology licensing agreements against the backdrop of EC competition law.

I found this book to be as good as, if not better than, other similar publications which I have encountered in recent years. The background notes provide context for the precedents and should help practitioners gain a better understanding of the law before using a particular precedent. That is an essential step which can often be overlooked in the rush to find a suitable style to use in a particular transaction. It is a very useful book which, although lengthy, is clearly set out and is easy to read.

The New Law of Sexual Offences in Scotland

James Chalmers
PUBLISHER: W GREEN
ISBN: 9780414041271
PRICE: £55

This standalone text, Supplement 1 to Volume II of Gordon’s Criminal Law, guides the reader through the labyrinthine provisions of the Sexual Offences (Scotland) Act 2009 which, as the author notes, “creates an entirely new law of sexual offences for Scotland, with some exceptions”.

The text first considers the general part of the Act, with issues such as consent and a definition of “free agreement”, uncertainty as to age, and extraterritiorial jurisdiction. Thereafter Dr Chalmers provides practitioners with a clear, straightforward analysis of the recommendations of the Scottish Law Commission, the offence, the modified offence in respect of older and younger children, then the elements of the offence. There is critical analysis of the offences, with interpretative guidance sought from pre-existing Scottish authority but more often than not from the English courts’ interpretation of the Sexual Offences Act 2003. This book is, along with Dr Brown’s previously reviewed annotated statute, a “must have” for all practitioners who will require to be familiar with the soon to be introduced legislation.