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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 12, December 2010

    The E-Myth Attorney: Why Most Legal Practices Don’t Work and What to Do About It

    By Michael E. Gerber, Robert Armstrong, & Sanford M. Fisch (Hoboken, NJ: John Wiley & Sons Inc., 2010). 178 pgs. $24.95. Order, www.wiley.com.

    Reviewed by James O. Ebbeson

    Michael E. Gerber published his first “E-Myth” book in 1985. More than 3 million copies of his books have been published since then. Gerber and coauthors Armstrong and Fisch are very good writers: they jointly and individually hold your attention and have successfully collaborated to write this entertaining and challenging little book.

    As a requirement for reviewing this book, I had to sign a pledge that I do not know any of these authors, have received no consideration from any of them, and so forth, but I confess that I have received a great deal from all three of them, now that I have read their work product.

    I wish that I had read Gerber’s original “E-Myth” in 1985, and that classes in business management for attorneys were included in my law school curriculum. This book asks all attorneys to answer many questions about themselves and their present practice and gives concrete examples of how the answers to these questions will change your life and your practice.

    The title “E-Myth Attorney” led me to instantly conclude that this is another how-to book about mastering the Internet and incorporating cyberspace innovations into your legal practice. I was immediately corrected. E-Myth stands for entrepreneurial myth.

    In 26 chapters, alternately introduced by Gerber and completed by Armstrong and Fisch, the thesis grows, grabs and challenges: Attorneys have not been educated, trained, or received experience in being managers, let alone entrepreneurs.

    Because most of my career as a general-practice attorney has been as a sole practitioner, I came to several conclusions immediately after I finished reading this book: 1) I will read and re-read this gem of a book from this day forward. 2) Sole practitioners need other support groups to help them effectively practice law. Few of them employ associate attorneys, and of course none of them have legal partners who can work with them to incorporate the necessary changes that will make them happy and successful. The State Bar should become the catalyst and support group to all its member attorneys, by first having every staff member read and re-read this book. (Ditto all local Wisconsin bar associations). 3) I will go to the various Internet sources suggested by these three authors. 4) I will send a copy of this book to my overworked son-in-law, who has been extremely successful in his business to date, and urge him to read this book and to think very carefully of how these challenges will be incorporated into his life and business.

    James O. Ebbeson, DePaul 1963, practices with Ebbeson Law Office, Sturgeon Bay, and has been an assistant corporation counsel, family court commissioner, and assistant district attorney.

    Unreasonable Inferences: A True Story about a Wrongful Conviction and Its Astonishing Aftermath

    By Michael Griesbach (Manitowoc, WI: Point Beach Publishing, 2010). $19.95. Order, www.unreasonableinferences.com.

    Reviewed by Douglas E. Baker

    If Steven Avery did not exist, Scott Turow or John Grisham – maybe even Stephen King – would have invented him. There can be no better morality play than the events that unfolded around Avery between 1985 and 2007: violent crimes, nearly unspeakable acts of depravity, complicated legal proceedings, misguided zealotry, blatant injustice, white knights to the rescue, and an ultimate, unforeseeable, tragic ending.

    But Steven Avery does exist and, fortunately for us, so does Michael Griesbach. Griesbach, a prosecuting attorney in Manitowoc County, Wisconsin, became involved in the latter part of the story, and, perhaps more important, had the opportunity to ferret out the gritty details, the legal training to understand them, and the writing talent to put it all together in a compelling and eminently readable book.

    The overarching story is familiar to nearly every Wisconsinite. In January 1986, Steven Avery, a 20-something auto salvage worker and known troublemaker, was sentenced to 32 years imprisonment for sexual assault, attempted murder, and false imprisonment. In 2001 the Wisconsin Innocence Project took on his case, arguing that modern DNA evidence could and would prove that Avery could not have been the perpetrator. Two years later, nearly 18 years after he walked into prison, Avery walked out a free man. He returned to the family salvage yard, and began proceedings to be compensated for the lost years of his life.

    Two years later 25-year-old Teresa Halbach went to the Avery Salvage Yard to photograph a car advertised by Avery, and never returned. On June 4, 2007, Steven Avery went back to prison, convicted of raping and murdering Halbach, and dismembering and burning her body.

    Though most Wisconsonites might know the story, few probably know the details behind Avery’s first, wrongful, conviction. But there is no longer any excuse for not knowing. Griesbach presents a clear, cogent, overview of the evidence and the underlying investigation, and makes a compelling case that Avery’s conviction was more than a mere miscarriage of justice: it was an intentional injustice in which a known malcontent and troublemaker was railroaded into prison on the underlying, if unspoken, presumption that if he didn’t do that particular crime, he no doubt committed other equally heinous crimes. The tragedy, of course, is that by denying justice to one who perhaps did not deserve it, the authorities inadvertently committed the ultimate injustice – setting in motion a chain of events that resulted in the horrible death of an innocent woman, not to mention the suffering of the subsequent victims of Gregory Allen, the real perpetrator of the crime for which Avery was wrongly convicted, a man who remained at large for 10 years until convicted of another sexual assault.

    The book of course is not perfect. None is. One flaw is Griesbach’s unfortunate affinity for clichés. A DA “throws the book” at a defendant, and simultaneously “beats a dead horse” while heading a witness “off at the pass”; a deputy “doesn’t beat around the bush”; and plea bargaining “is like making sausage.” Second, however well-edited the book may have been, it was obviously not carefully read a final time before publication. How else to explain the fact that at least two passages are repeated verbatim, one time on the same page.

    Those are perhaps minor matters only an editor would care about. But at least this reviewer – and probably any other attorney – had an urge to hear Griesbach cross-examined under oath as he tells his tale. However honest and straightforward Griesbach might be, anyone who “thinks like a lawyer” (Griesbach’s words) would like to test his version of the motivations of the various characters, and the veracity and import of the facts he recites. Not that we doubt his character, but as lawyers we doubt almost any assertion not nailed down by vetted evidence.

    That being said, this is a book worth reading, and worth owning. Any reader will come away with a solid understanding of the Steven Avery story, and of the fallibility of the human characters who struggle to practice justice and right morality.

    Douglas E. Baker, Creighton 1989, is an attorney editor with State Bar of Wisconsin PINNACLE™.

    Social Security, Medicare & Government Pensions: Get the Most Out of Your Retirement & Medical Benefits

    By Joseph Matthews & Dorothy Matthews Berman (Berkeley, CA: Nolo, 15th ed. 2010). 496 pgs. $22.99. Order, www.nolo.com.

    Reviewed by Leonard W. Wang

    Social Security, Medicare & Government Pensions takes on the difficult challenge of explaining government-sponsored retirement and medical benefits in plain English, and it largely succeeds. Readers learn how workers, spouses, dependents, and survivors qualify for retirement benefits and how they can maximize these benefits.

    The authors delve into the intricacies of Social Security disability coverage, with particular attention to the nuances of the definition of a qualifying disability. They also describe Supplemental Security Income, a program designed to assist low-income persons who are 65 or older, blind, or disabled.

    A large portion of the book is devoted to health-care benefits. Medicare Parts A, B, and D, Medigap policies, Medicare managed care plans, and Medicaid are all discussed in detail. The book presents ways to get the most out of these benefits.

    The book’s coverage of government pensions is narrow. It provides almost no information about state and local government pensions. The book’s description of federal pension plans is fairly thorough although not quite complete or up to date. Federal personnel offices offer more comprehensive information.

    The authors discuss certain veterans’ benefits, with the most attention devoted to veterans’ disability claims. They describe the veteran’s pension as a benefit for disabled vets but do not note that all low-income, wartime veterans who are 65 or older may be eligible. They also do not cover the military retirement pension (available to service members who have served 20 or more years).

    Social Security, Medicare & Government Pensions provides attorneys with a good overview of Social Security and Medicare but little in the way of actual statutory or regulatory language or citations. The book includes little discussion of retirement savings accounts such as 401(k) plans and IRAs. Thus, it does not integrate government benefits with strategies for using personal savings. For example, the authors do not analyze the potential disadvantages of delaying receipt of Social Security benefits. If retirees have to live partially or entirely on savings while they wait, the erosion of savings could make delaying receipt of Social Security benefits unwise. Additionally, although the authors discuss the strategy of repaying benefits from an early claim of Social Security after collecting for a few years, so as to start anew with higher benefits, they do not mention that doing so is most advantageous in situations in which the payee cannot instead purchase a more generous private-sector annuity. Now that defined-benefit plans are diminishing and disappearing, and personal savings in 401(k) plans and other vehicles are becoming increasingly important, an analysis integrating government benefits with the use of personal assets is essential to retirement planning and retirement.

    Leonard W. Wang, U.W. 1978, worked for more than two decades at the U.S. Securities and Exchange Commission and now writes about the federal securities laws for the Bureau of National Affairs Inc.

    When Prayer Fails: Faith Healing, Children, and the Law

    By Shawn Francis Peters (New York, NY: Oxford Univ. Press, 2008). 272 pgs. $29.95. Order, www.oup.com.

    Reviewed by Kenneth W. Krause

    When Dennis and Lorie Nixon’s younger son, Clayton, suffered an ear infection and pleaded to his parents to make the pain stop, the Nixons chose to address the problem with prayer rather than medical science, in keeping with their Christian faith. Clayton developed dehydration and malnutrition and then died.

    District Attorney William Haberstroh prosecuted the Nixons on charges of involuntary manslaughter and child endangerment. They pleaded no contest and were sentenced to probation. Asked what he hoped to achieve, Haberstroh said, “What I want to do is not change their belief, but change their conduct.” But, as people believe so shall they act.

    When Clayton’s older sister became ill, the Nixons elected once again to forego secular medicine in favor of prayer and anointment with oil, consistent with scriptural teachings. Shannon’s condition quickly deteriorated, and despite intense prayer, Shannon died.

    According to the autopsy, Shannon had suffered from diabetic ketoacidosis (DKA). Although the disease is incurable, it can be treated with regular insulin injections, typically costing less than $1 apiece. Without the shots, victims of DKA die.

    Thus, the Nixons’ decision to treat their daughter with prayer alone sealed her fate. “They sacrificed this little girl for their religious beliefs,” Haberstroh said after he filed criminal charges.

    An eerily similar situation occurred in Wisconsin in March 2008. Madeline Neumann had been obviously sick for about 30 days. Instead of seeking medical care for the 11 year old, her parents, Leilani and Dale, chose to pray. Madeline died from DKA on March 23, Easter Sunday.

    The Neumanns were charged with second-degree reckless homicide; Marathon County District Attorney Jill Falstad decided she could not charge them with child abuse because Wis. Stat. chapter 948 provides an exemption for parents who choose to treat their afflicted children with nothing but prayer.

    In When Prayer Fails: Faith Healing, Children, and the Law, author Shawn Francis Peters makes clear the scope and frequency of cases of this type. Typical offenders, Peters observes, are “intensely religious parents whose lives revolve around the doctrines and practices of small, close-knit Christian churches that ground their doctrines in narrowly literal interpretations of the Bible.” Parents of the child victims are seldom prosecuted because 39 states provide religious exemptions to child abuse or neglect statutes, and 19 states permit religion-based defenses to felony crimes against children.

    Faith-healing fatalities have not become a vestige of our more primitive past, despite profound scientific advances, particularly the germ theory of disease. According to Peters, pediatrician Seth Asser and children’s advocate Rita Swan investigated 172 child deaths in American faith-healing churches during a 20-year period and discovered that the vast majority of them had resulted from religion-based neglect. 140 deaths were caused by conditions for which medical science provided a 90 percent survival rate, and 18 resulted from diseases with more than 50 percent survival rates.

    The source of these parents’ reliance on prayer is the Bible, particularly but not exclusively the Old Testament. In Exodus, God advised the Israelites that it is “the Lord who heals you,” and Chronicles warns that Asa was gravely mistaken in seeking assistance from a physician instead of God. The Books of Mark and Luke characterize doctors as inept buffoons (somewhat ironically, because Luke was supposedly a physician himself), while John depicts Jesus as a healer of unlimited capacity who could even raise Lazarus from the dead. Those themes reverberate throughout Acts, and the Epistle of James states that Jesus prescribed prayer and anointment with oil as the ultimate remedy for all bodily afflictions.

    Most of us believe that prayer is valuable, if at all, only to the individuals who do the praying and only at an unconscious, therapeutic level – particularly during trying and desperate times. In other words, prayer healing is best understood as a self-administered psychological and neurobiological phenomenon. I suspect that informed common sense will continue to elude the intellectual horizons of religious literalists, who likely will always believe that worldly knowledge in contradiction of religious dogma – science, most conspicuously – is the enemy of God and the thief of souls. This is fine, at least for them. But Peters’ important book raises much more pressing issues.

    What about their children? What, if anything, should we do about the statutory exemptions that expressly invite parents to sacrifice their own kids to their personal religious convictions?

    In 1944, the U.S. Supreme Court addressed that question in Prince v. Massachusetts. “Parents may be free to become martyrs themselves,” wrote Justice Wiley Rutledge. “But it does not follow that they are free, in identical circumstances, to make martyrs of their children.” Along with all rights – including parenthood and freedom of religion – come enforceable responsibilities. At some point, faith should summon the courage of humility, if not of rationality.

    Surely that point is traversed by a considerable distance whenever a child dies for lack of a doctor’s treatment.

    Kenneth W. Krause is a contributing editor and books editor/columnist for the Humanist and a contributing editor and “Science Watch” columnist for Skeptical Inquirer. He can be contacted at krausekc@msn.com.

    A Legal Guide for Lesbian and Gay Couples

    By Denis Clifford, Frederick Hertz, & Emily Doskow (Berkeley, CA: Nolo, 15th ed. 2010). 344 pgs. $26.99. Order, www.nolo.com.

    Reviewed by Mark T. Johnson

    When my partner and I bought the sixth edition of A Legal Guide for Lesbian and Gay Couples in the early 1990s, we perused the information but did not actually follow through with using it. Eventually, we completed estate planning documents with an attorney. When choosing between do-it-yourself legal work and hiring an attorney, each individual has his or her own comfort level or barriers to completion. Most lay readers and attorneys will get some use from this guide.

    This guide is intended for lay readers, who may be preparing and signing legal documents without legal counsel, and it helps readers decide when they might want to seek the advice of an attorney. Attorneys may find the guide helpful for a basic understanding of the issues and options for same-sex clients. The guide offers and explains sample forms, which are also provided on an accompanying CD-ROM.

    Now in its 15th edition (the 2007 14th edition was the basis for this review), the guide addresses the following topics: cohabitation agreements; state laws concerning same-sex marriage, domestic partnerships, and civil unions; financial and medical decision-making; parenting; renting or purchasing real estate; estate planning; and dissolution of relationships.

    There are inherent downsides to a legal guide for nonattorneys written for nationwide distribution. First, readers might not recognize the limits of a do-it-yourself guide. Preparing documents with incomplete legal advice and the resulting false sense of security may be worse than having no legal arrangement at all. Second, a guide by a nationwide publisher glosses over some state-specific nuances. Third, the passage of time works against this guide – most notably, the chapter on various states’ current laws regarding same-sex relationships will always lag behind the latest legal developments.

    This guide seems faintly old-fashioned in spite of the timeliness of its subject. Many of the issues, such as cohabitation agreements and assisted reproduction, are now common for couples of any sexual orientation, and information on the topics is available from other specialized sources. Furthermore, the Internet is a competing and seemingly ever-current resource. Even though the guide refers to websites for additional relevant information, it begs the question of why a person couldn’t simply find all the needed information online and skip the book altogether.

    For same-sex couples, the guide can be a good starting point, possibly an ending point for simple matters, or a prompt to seek legal counsel for complex matters. For attorneys, the guide is little more than a review of the basics, but it might shed some light on areas outside one’s particular practice area or give insight into the national evolution of same-sex legal issues.

    Mark T. Johnson, U.W. 2008, is an associate at Hill, Glowacki, Jaeger & Hughes LLP, Madison, practicing in estate planning, elder law, and family law.

    The Judge Who Hated Red Nail Polish: And Other Crazy but True Stories of Law & Lawyers

    By Ilona Bray & Richard Stim (Berkeley, CA: Nolo, 2010). 250 pgs. $16.99. Order, www.nolo.com.

    Reviewed by Theresa R. Laughlin

    Did you know that Julio Iglesias and Steve Young have law degrees, that Abraham Lincoln and Ulysses S. Grant both filed for bankruptcy, or that Clarence Darrow was barred from practicing law in California? In this book, written by two lawyers, you’ll find those facts and other trivia and vignettes related to the law and the legal profession.

    Much of the book is dedicated to humorous trivia. The book opens with a chapter about some states’ bizarre laws. For example, in Oregon it is illegal to hunt in a cemetery, and in Virginia you cannot hunt raccoons after 2 a.m. on Sundays. Particularly amusing is the chapter with blooper headlines, for example, “Hershey Bars Protest”; “Man Robs, Then Kills Himself”; and “Bar Trying to Help Alcoholic Lawyers.”

    Some of the stories are not so much humorous as historically interesting. Included in the book is the story of Clara Shortridge Foltz, California’s first woman lawyer. She passed the bar exam without attending law school and then attempted to attend law school to enhance her career and reputation. After she paid the $10 admission fee to Hastings College of the Law in San Francisco, the board of directors passed a resolution barring women from entering the school. She petitioned the court for an order allowing her to attend the school. The judge refused to honor her bar certificate and forced her to undergo a second bar exam. Eventually, the judge allowed her to argue the case and, in fact, ordered the school to admit her. The board appealed to the California Supreme Court, which required Foltz to take the bar exam a third time before allowing her to argue the case. Almost one year after she paid her $10 admission fee, the supreme court ordered the school to admit her.

    Included are chapters on Barbie-doll litigation and legal trivia about M&Ms, a section about what certain death row inmates ordered for their last meals, and two quizzes to test your knowledge of the Constitution and the law.

    A particularly interesting section is the one titled “Five Defective Products That Changed the Law.” This section provides brief synopses of the 1916 Buick Coupe with broken spokes, Massengill’s Elixir Sulfanilamide, an exploding bottle of Coke, the Yuba Power Products case, and, of course, the case of Stella Liebeck, who sued McDonald’s after she was burned by hot coffee.

    In short, this is a quick, light, entertaining, and easy read, a nice book for beach or airplane reading. It is the perfect stocking stuffer for a legal trivia buff or for your law firm waiting area.

    Theresa B. Laughlin, U.W. 1995, practices personal injury law in the Wausau, Rhinelander, and Stevens Point offices of Habush, Habush & Rottier.




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