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Vol. 71, No. 9,
September 1998
Book Reviews
This Month's Featured Selections
Advising Older Clients and Their Families,Vol. II
By Betsy Abramson and 24 other authors.
$165 or $125 if you own Vol. I. 618 pgs.
(Madison, WI: State Bar CLE Books and Elder Law Section, 1998).
 Order
It Online Now!
Reviewed by Sara Buscher
State Bar CLE Books and the Elder
Law Section have copublished the second volume of Advising Older
Clients and Their Families for Wisconsin practitioners. It contains
helpful tips from individuals who are practitioners. The coverage is current
and appropriate. The first volume, issued last year, covered the growing
demand for elder law services, practice building advice, management issues,
and ethics. Its substantive sections covered topics that naturally extend
existing practices into areas serving older clients. The second volume includes
topics more typically identified with elder law.
The first of the second volume's three parts, entitled "Public and
Private Health Care Financing," covers Medicare, Medicaid, veteran's
health-care benefits, and employer-sponsored plans, Medigap policies, and
long-term care insurance. Medicare is being revamped to encourage enrollment
in Medicare HMOs. Some of these changes already are surfacing in news reports
about the incorrect denial of home health-care visits. Advocacy within managed
care organizations and through insurance regulators is going to be a new
and developing practice area. The Medicaid chapter is a ready reference
that gives a clear picture of Wisconsin's medical assistance program. It
can save countless hours of research.
The book's second part, "Estate Planning, Advance Directives, and
Guardianship," provides extremely useful and practical planning guidance.
The chapter on estate planning provides solutions to commonly encountered
problems and issues: integrating estate tax, Medicaid planning, and Wisconsin's
marital property and probate laws. The relationships between trusts, powers
of attorney, and guardianship also are explored.
The chapter on health-care decision-making deals with patient self-determination,
refusal of medical treatment, and consent issues for incapacitated persons.
Federal and Wisconsin constitutional issues and cases are discussed. So
are the practical issues, such as whether it is wise to use both a Living
Will and a Power of Attorney for Health Care.
The guardianship chapter provides useful checklists and forms. It covers
topics that are hard to ferret out of current statutes, including which
procedure to use, terminating or modifying a guardianship, transferring
venue when a ward moves, and emergency guardianships. The roles and duties
of attorneys when representing the petitioner, the ward's best interests
as a guardian ad litem, or as advocacy counsel for the ward also are discussed.
The final section, "Long-Term Care," provides information about
Wisconsin's public assistance for community care, the Community Options
Program (COP) and MA Waiver programs. These programs are the only ones that
pay for residential care outside of nursing homes, such as care in dementia
facilities. The regulatory requirements to be met by those facilities are
covered in another chapter, followed by a final chapter on litigation to
enforce patient rights.
Each topic has a well-written outline that is heavily footnoted to sources
of the law. Spotting issues and finding answers to questions in unfamiliar
territory is easy. It is liberally sprinkled with practice tips. The book
is well indexed, has a useful table of contents, helpful appendices, bibliographies
and glossaries. It even contains a list of elder law Internet sites.
Sara Buscher, U.W. 1994 and a C.P.A. since 1978,
is a member of the State Bar of Wisconsin's Elder Law Section Board and
a frequent contributor to its newsletter. Her practice emphasizes service
to Alzheimer's families.
Guilty By Reason Of Insanity:
A Psychiatrist Explores the Minds of Killers
 By Dorothy Otnow Lewis, M.D.
(New York, NY: Ballantine Publishing Group, 1998).
304 pgs. Retail: $25.
Reviewed by Timothy J. McAllister
Dr. Jonathan Pincus said, "I've never seen so many neurologically
impaired kids together in one place at one time," about Connecticut's
Long Lane juvenile detention facility after investigating the residents
for Dr. Dorothy Otnow Lewis, the author of Guilty By Reason Of Insanity:
A Psychiatrist Explores the Minds of Killers. The book is a case-study-based
narrative written in a manner akin to beach literature, yet contains some
gems of insight.
The cycle of physical and psychological abuse that occurs in dysfunctional
families is self-perpetuating in that these abused individuals often grow
into even more abusive adults who treat others in the only manner in which
they were taught. Dr. Lewis comments that many of the death row inmates
she studied were generations in the making.
Dr. Lewis believes that the families of children who commit murder often
have something to hide. Prenatal damage and physical abuse coupled with
emotional trauma and psychological impairment create individuals incapable
of relating to the world around them in a "sane" manner. These
individuals react violently to the world, expressing the torture of their
lives. They are not deterred by stiff penalties (such as death sentences)
because they are unable to comprehend them.
Research by Dr. Lewis indicates that the offenders' medical files should
be investigated as part of the detective work in a criminal proceeding.
Frequent hospital visits and psychiatric symptoms are indicators of neurologic
damage, and a resulting somatic insanity. The differences in the definition
of "insanity" between the legal and psychological professions
is discussed. Concepts such as "guilty but insane" are purported
to be oxymorons since an insane person is by psychological definition not
capable of understanding and functioning in reality.
Of particular interest is Dr. Lewis's unabashed statements regarding why some offenders in death
sentence states are executed and others are not - it is wholly dependent
on the quality and motivation of the client's lawyers.
Devoid of any charts, photographs, or diagrams, Guilty By Reason Of
Insanity is a well-written book that deserves the short time it requires
to read. It will not be cited in legal case proceedings, but it may enlighten
those involved in them.
Timothy J. McAllister, U.W.-Oshkosh 1997 Master
of Public Administration, is employed by the Department of Corrections at
the Wisconsin Resource Center.
Successful Client Newsletters:
The Complete Guide to Creating Powerful Newsletters
By Milton Zwicker
(Chicago, IL: ABA Law Practice Management Section, 1998).
116 pgs. Retail: $44.95.
Reviewed by Douglas O. Smith
Lawyers communicate for a living.Yet, their newsletters have the reputation
for being boring. Many firms are shocked to learn that most clients and
prospective clients never even look at the newsletters they receive. Short
of hiring a professional, reading this concise, step-by-step guide and putting
its ideas into practice is the best way to guarantee that your firm's newsletter
gets read and tells readers what you really want them to know.
Unlike many law practice management publications, Successful Client
Newsletters skips the war stories and keeps examples to a minimum. Instead,
it forces lawyers to do first things first - think about the clients
and what they want from a newsletter. Part I, "Planning Your Newsletter,"
will help readers to identify goals and objectives for the newsletter and
then to make smart decisions about content and format. The result is a sophisticated
marketing plan. Part II, "Writing Your Newsletter," focuses on
key style ideas, provides an excellent checklist for editing, and has important
guidance on writing headlines that work. Part III, "Designing Your
Newsletter," deals with the nuts and bolts of publishing, including
electronic newsletters, and it will help ensure that the newsletter's look
is first class. There also is a comprehensive list of books, magazines,
software, and Web sites to help with the process. The approach is complete,
concise, and professional - just like a newsletter should be.
The author, Milton Zwicker, is a Canadian lawyer whose direct and forceful writing should be
modeled (and not just in newsletters). Every paragraph gets right to the
point and has something of value. Our firm will be revamping its newsletter
as a result of the ideas and suggestions here, and it will become a more
effective marketing tool as a result.
Anyone responsible for a client newsletter who reads this book should
come away with lots of improvements that can be put into practice immediately.
That's the test of whether or not a book like this merits a reader's time
and attention, and this one does.
Douglas O. Smith, Marquette 1983, is a principal
and shareholder of General Counsel S.C., Brookfield. The firm serves as
independent general counsel for small business and provides contract legal
services to in-house law departments.
What Makes Juries Listen Today
By Sonya Hamlin
(Little Falls, NJ: Glasser LegalWorks, 1998).
772 pgs. Retail: $85.
Reviewed by Robert J. Kasieta
This book is worthwhile, but flawed. The author fills 300 largely tedious
pages before giving the reader the most helpful information. Early chapters
deal with changes in U.S. demographics that translate into changes on jury
venires. Another section focuses on what to wear at trial. Much of that
information is important to trial lawyers but the author weakens the message
by stating and restating the obvious.
When the author describes effective communication skills before the jury,
from voir dire through closing, the book is at its best. There are welcome
reminders about the importance of the jury in the courtroom. More importantly,
there also are specific pointers on how to impress upon the jury that you
remember their importance. These sections of the book would have been helped
by the more liberal use of examples. Sometimes, war stories clarify concepts.
What Makes Juries Listen Today is suitable for trial attorneys
at all levels of skill and experience. Most seasoned attorneys likely will
find parts of the book to be superficial, but inexperienced trial counsel
should learn a great deal from it. It is not an easy book to read from cover
to cover: Blocks of repetitive text should have been edited from the final
version. But in small doses it makes an informative read.
Especially worthwhile is Hamlin's description of voir dire. She creatively
shows the reader what it feels like to be in the jury box for the first
time and how counsel can lessen feelings of apprehension and confusion that
most jurors experience. There is a power differential that exists between
trial attorneys and the jury. The former are comfortable in the courtroom
and in control of the proceedings (especially when lawyers, not the trial
judge, question the jury in voir dire). Jurors are in a strange place with
strange people. They might have seen television trials, but otherwise they
have no experience with which to compare jury duty. Hamlin systematically
analyzes the effect that counsel's words and acts have on the jury during
voir dire. For example, if one stands to address the jury during voir dire
he or she is exercising more power than the attorney who remains seated.
The most powerful, authoritative position is standing behind a podium. During
voir dire, compassion and understanding are more important than power, and
so, a seated position is often indicated. Hamlin carefully critiques different
approaches to voir dire and identifies the strengths and weaknesses of each.
One of this reader's pet peeves with the book was the total absence of any reference to the author's
credentials anywhere in the book. Nowhere in the forward or preface is there
any resume of the author, nor is there an afterword. This problem was exacerbated
by the rarity of any citation to authority in the book. One was left wondering
whether the author was a psychologist from a college campus who had primarily
read about courtroom activity or a seasoned trial attorney who took special
interest in legal education. There were some indications in the book of
the author's prominence. For example, she writes of consulting with the
media for the O.J. Simpson trials and describes having been present for
at least part of the Timothy McVeigh trial and jury selection. But essentially,
the reader was left to take the book on faith alone - something trial
lawyers are not very good at.
The mystery of Hamlin's credentials was solved when an advertisement
for this book arrived in the mail. It announced that Hamlin is the president
of her own company in New York, that she trains trial lawyers, and has two
Emmy awards for her television work.
Robert J. Kasieta is the founder of the Kasieta
Legal Group LLC. He has 15 years' experience as a trial attorney in a wide
range of civil matters.
 Democracy at Dawn:
Notes from Poland and Points East
By Frederick Quinn
(Texas A&M University Press, 1998).
250 pgs. Retail: $29.95.
Reviewed by Lawrence G.
Albrecht
What exactly do we mean by the "rule of law"? How is a democratic
state established? Following the demise of the Soviet Union and the resultant
political upheavals in Central and Eastern Europe and in the satellite states
of Asia, these fundamental problems confront the newly formed legal cultures
throughout the region. The emerging democracies in these newly independent
states must accommodate deeply divided, antagonistic, and often autonomous,
economic, religious, ethnic and cultural interests that share few common
institutions. In these countries, an open society may denote a freely segregated
society. How to accommodate and integrate fractious, competing interests
into a credible legal system remains the quest.
To experience these cultures and their vibrant, detail-remembered histories
is endlessly fascinating. Frederick Quinn's travel notes record dozens of
encounters, from Warsaw to Kazakhstan, with individuals and nascent constituencies
dedicated to building legal cultures. His purpose is to report and analyze
the complex array of institutional difficulties these countries face in
the transformation from command economies in repressive states, where law
was an instrument of control and terror, to open societies supported by
positive law and enforceable commercial and human rights.
Quinn is a legal historian who holds a Ph.D. in history and has served
as a career Foreign Service officer. His academic expertise and travel experiences
have served him well in his reporting and contextual analysis. It is impossible
to approach or understand the disparate political and economic realities
in this region without a historian's perspective on the competing ancient
mythologies vying for current power and control. Traveling with colleagues
from the Organization for Security and Cooperation in Europe (OSCE) as head
of a rule of law program, Quinn participated in drafting constitutions,
organized legal seminars on the paramount need for an independent judiciary,
and talked endlessly with everyone he encountered regarding their deep-rooted
fears and their shaky hopes that the rule of law will bring true stability
and prosperity.
Although his work lacks a detailed overriding thesis or theme, his experiences
introduce and illustrate both the hopefulness and the complexity inherent
in the legal transformation process. Long after the constitutional scholars,
omniscient Chicago School economists, and other pundits on arcane legal
topics have had their say, history's deep divisions will continue to exert
antidemocratic pressures that undermine the due process and equal protection
foundation of the rule of law.
As Quinn reports, issues of state security and protection of free markets predominate the legal agenda.
While human rights requires genuflection by all, enforcement of positive
rights lags far behind as a priority - which is understandable given
the historical absence of independent judiciaries and the inherent civil
law limitations on judicial power. Perhaps our own common law legal history
presaged this unfolding of events in Eastern Europe and Central Asia since
common law protection of economic rights developed and preceded judicial
enforcement of civil rights by nearly a century, until "activist"
judges exercised increased powers of constitutional and statutory interpretation
and policy analysis.
Legal education reforms underway in these new legal cultures will prepare
skilled private attorneys to handle individual rights cases and creatively
expand the domain of human rights law in an orderly manner. (And, inevitably,
defense attorneys will learn how suitable for transplanting are our doctrines
of absolute or qualified immunity and other high procedural barriers that
frustrate state accountability to its citizenry.) Quinn, however, remains
hopeful that by building constitutional systems of law that reflect the
contextual convergence and blending of civil law and common law traditions,
enforced by independent judiciaries, these countries will accommodate competing
interests and build democratic societies in which individual rights, and
the market rights of corporations and other business associations, are both
pronounced and enforced. And, as he concludes, these heroic efforts against
the powerful experience of history deserve our active professional support.
Lawrence G. Albrecht, Valparaiso 1973,
is a shareholder at First, Blondis, Albrecht, Bangert & Novotnak S.C.,
Milwaukee. He taught at the University of Bucharest School of Law in 1997
and consulted at several law schools in Romania and Bulgaria on behalf of
the ABA Central and Eastern European Law
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