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    Wisconsin Lawyer
    July 01, 2003

    Book Reviews

    Donna Jones; Jon Furlow; Mike Lamb; Bruce Bower; Robert Alexander

    Wisconsin Lawyer
    Vol. 76, No. 7, July 2003

    Book Reviews

    Book: The Winning ArgumentFederal Habeas Corpus Commentaries and Statutes

    By Steven M. Statsinger (Notre Dame, IN: National Institute of Trial Advocacy, 2002). 58 pgs. $19.95. Order, (800) 225-6482 or

    Reviewed by Bruce Bower

    This is a compact treatment of habeas-type relief. The book covers relief from state custody and from federal custody. The author notes the pertinence of the writ of habeas corpus in our times, as well as the roots of the Great Writ in the Magna Carta and in the Habeas Corpus Act of the English parliament in 1679.

    The book's discussion of present U.S. statutes begins with the relationship among 28 U.S.C. § 2241 (authorizing federal courts to grant writs of habeas corpus), 28 U.S.C. § 2254 (governing writs by state prisoners), and 28 U.S.C. § 2255 (governing relief from a federal sentence). The author points out the complexity of habeas corpus litigation, noting that "[i]t is governed not just by statute, but by the Federal Rules of Civil Procedure, two sets of procedural rules promulgated solely for habeas corpus petitions, various courts' local rules, and a significant body of case law not codified in any statute or rule."

    The author discusses the issue of appointment of counsel (not mandatory in habeas cases except when the indigent prisoner has been sentenced to death) and the relationship of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) to writs of habeas corpus. Sections of the book then briefly treat "Form, Content, Timing and Stays" (for relief from state custody under 28 U.S.C. § 2254); the types of issues that can be the subject of habeas petitions; AEDPA's "one bite of the apple concept;" and the timing of applications, including AEDPA's one-year statute of limitation. Concerning relief from federal custody under 28 U.S.C. § 2255, the author discusses the custody requirement and procedural default. The work addresses standards of review under 28 U.S.C. § 2254 and § 2255, and discusses evidentiary hearings (governed by 28 U.S.C. § 2246), appeals, and second applications (if there are new grounds).

    The book contains the full text of the federal statutes that govern writs of habeas corpus and motions for relief from federal custody. For major points along the way, the author has provided federal case citations.

    Thus, the author treats the core concepts of habeas corpus and relief from federal custody. To render competent representation in these types of cases, many practitioners will want more detailed guidance than such a compact book would claim to provide. This book, though, is a good overview of the main concepts that must be mastered.

    Bruce P. Bower, Notre Dame 1975, is Director of Advocacy and Client Services for Texas Legal Services Center, Austin, Texas.

    E-Health Business and Transactional Law

    Edited by Barbara Bennett (Washington, D.C.: ABA Health Law Section, BNA, 2002). 728 pgs. $54.95. Order, (800) 960-1220.

    Reviewed by Mike Lamb

    E-Health Business and Transactional Law carries a warning and a promise that make the book well worth the reader's time and investment. "To be incompatible or unconnected are no longer mere social sins. They are commercial oblivion," caution the authors. The authors promise and deliver a "down-to-earth reference ... written by practitioners for practitioners" in this comprehensive, well-organized working volume on business/legal issues for health-related Internet businesses.

    As the authors note, "E-health businesses combine components found in a triad of commercial enterprises - traditional business models, specialized health industry operations, and e-commerce Web-based endeavors." And so does this book. Linking commerce, technology, and health care in a reader-friendly format, this work speaks equally well across a wide range of Internet transactions as it treats broad areas of common interest such as privacy, liability, antitrust, due diligence, ethics, and intellectual property. From a chapter devoted to general business and financing issues, and throughout the book, the authors thread practical business concerns as commerce intersects with law in a new medium.

    Each chapter begins with a brief overview and table of contents that allow readers to quickly orient to the subject matter. Appendices include a glossary of Internet and health terms, lists of health-related Web sites and government agencies, and selected forms. An accompanying CD-ROM is clumsier to use than necessary because of a lack of links from its table of contents to the information on the disk. One hopes that future editions will remedy this slight oversight in an otherwise valuable work.

    The editor of E-Health Business and Transactional Law acknowledges that fast-paced advances in law on the Internet require a brave heart, but she promises annual updates to keep pace. With this book as a standard reference, businesses and their advisers competing in the electronic marketplace can bravely go forth.

    Mike Lamb, St. John's University School of Law 1983, practices employment law in Chicago.

    An Estate Planners Guide to Qualified Retirement Benefits, 3d Edition

    By Louis A. Mezzullo (Chicago, IL: ABA Real Property, Probate and Trust Law Section, 2002). 171 pgs. $99.95. Order, (800) 285-2221.

    Reviewed by Robert G. Alexander

    This book is one of the essential references for anyone who does estate, tax, or retirement planning for qualified plan benefits. The author, Louis A. Mezzullo, is one of the premier practitioners, authors, and lecturers in America on this topic. This third edition, as with the first two editions, is a "must read" for anyone who practices in this area. Although published prior to issuance of the new minimum distribution rules in 2002, the book's addendum discusses the new rules.

    The advantages of this volume are its organization, useful forms, and in-depth coverage of the topics, all accomplished in a format that makes this volume a very practical reference source. Almost all of the issues that practitioners confront daily can be located easily in this easy-to-use volume. The volume includes discussions of nontax rules relating to qualified plans, the many penalty taxes that can be assessed against qualified plan benefits, minimum distribution requirements, income taxation of benefits, transfer tax issues, spousal rights, and community property law considerations.

    Planning opportunities with respect to qualified plan benefits are discussed in a particularly useful chapter that includes illustrations that bring together the technical rules discussed in the previous chapters and demonstrate their day-to-day use in retirement planning, beneficiary designation planning, and post-death planning. Finally, the volume concludes with a number of useful indices, including uniform distribution tables, life expectancy tables, and revenue and case rulings. Appendix B contains several excellent forms that should be integrated into every professional's daily practice. This volume is highly recommended and is a bargain at its low price.

    Robert G. Alexander, U.W. 1976, is a principal in Alexander & Klemmer S.C., Wauwatosa.

    Going to Trial: A Step-by-Step Guide to Trial Practice and Procedure, 2d Edition

    Edited by Daniel I. Small (Chicago, IL: ABA Publishing, 2002). 298 pgs., w/diskette. $99.95. Order, (800) 285-2221.

    Reviewed by Jon G. Furlow

    Going To Trial is far too modest a title for this book. This is not just another book about trial practice. It is a comprehensive guide to the fundamentals of litigation from the initial interview through post-trial motions and all steps in between.

    The strength of Going to Trial is its devotion to practical, nuts-and-bolts advice about how to handle a case. The presentation is chronological, starting with the chapter on the initial interview and concluding with the closing argument. There are chapters devoted to discovery, trial preparation, and trial advocacy points such as opening statement, direct examination, cross examination, rebuttals, and closing argument. These chapters provide an excellent baseline of information about litigation and trial technique and provide plenty of practical advice for practitioners. For example, on interviewing new clients, the authors highlight red flags that should raise a question about whether to undertake the representation. On trial presentation, the authors emphasize a lesson often overlooked - "juries like to discover things for themselves."

    Going to Trial is written in a clear, concise, and easy-to-follow style. The central theme focuses on the well-worn advice that preparation is everything. Each chapter is supported by helpful checklists on subjects ranging from fee agreements to evidence foundations to subjects to cover in lay and expert witness examinations. The authors provide a multitude of forms to assist with such things as client questionnaires, witness lists, and exhibit lists. A disk containing the checklists and forms for ready reference and use is included. As a further supplement, each chapter is supported by helpful lists of secondary reference materials.

    Although put out by the ABA General Practice, Solo and Small Firm Section, Going to Trial is not just for the small firm or solo practitioner. With only a smidgen of imagination, any lawyer involved in litigation - large or small - will benefit from the advice in Going to Trial. This book is a particularly valuable resource for new lawyers just starting in a litigation practice because it provides solid, practical advice that would otherwise take years to learn by carrying a partner's bag.

    Jon G. Furlow, Minnesota 1986, is a partner in the litigation practice area at Michael Best & Friedrich LLP.

    Litigants Without Lawyers: Courts and Lawyers Meeting the Challenges of Self-Representation

    By Patricia A. Garcia (Chicago, IL: ABA Coalition for Justice, 2002). 32 pgs. $5. Order, (800) 285-2221.

    Reviewed by Donna M. Jones

    Increasingly, people are choosing to represent themselves in legal matters. A 1999 survey conducted by the American Judicature Society "found 95% of participating courts reporting an increase in [pro se] litigation during the previous five years." Litigants Without Lawyers presents the challenges posed by this trend and offers possible reforms to address it.

    Too many risks are involved. Pro se litigants can unknowingly give up legal rights, fail to recognize important aspects of the case, or ask for too little during mediation or arbitration. Without legal representation, they also lose protections like bar association client protection funds and lawyer disciplinary processes.

    Courts, judges, and lawyers are exposed, too. The additional demands that pro se litigants place on courts add more strain to already limited resources. Self-representation is a constitutional right that raises ethical concerns. Judges "must balance their duty to remain impartial with their duty to provide a fair hearing to all parties." Pro se litigants may need or expect more assistance from judges, yet "there is no clear point at which such assistance unfairly impacts on the party" that has an attorney. Court personnel are required to act with neutrality, but when "does friendly assistance become legal advice"? Lawyers are obligated to advocate for their clients, and "should not take advantage of [a pro se] party's lack of knowledge of the rules and law."

    Examples of solutions include developing training programs, protocol for judicial officers during hearings, and guidelines that direct court staff on what is and is not permissible. Solutions that directly assist litigants include on-site self-help centers; on-site clinics with paralegals; and more "understandable" forms. Lawyers can assist by providing free or low-cost legal assistance, or charging fixed or flat fees for routine services. Lawyers also can offer "limited" services that cover only part of a case instead of an entire case.

    This book ends with summaries of reform initiatives from six states, ABA policy, and an excellent list of resources.

    Donna M. Jones, U.W. 1978, is a past member of the Board of Governors who resides in Atlanta, Ga.

    To Review a Book...

    The following books are available for review. Please request the book and writing guidelines from Karlé Lester at the State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, (608) 250-6127,

    Publications and videos available for review

    • Corporate Ethics: The Business Code of Conduct for Ethical Employee, by Steven R. Barth (Boston, Mass.: Aspatore Publishing, 2003). 153 pgs.
    • Forensic Aspects of Communication Sciences & Disorders, by Dennis C. Tanner (Tucson, AZ: Lawyers & Judges Publishing, 2003). 393 pgs.
    • Forensic Aspects of Driver Perception & Response, 2nd ed., by Paul L. Olson & Eugene Farber (Tucson, AZ: Lawyers & Judges Publishing, 2003). 372 pgs.
    • The Good, The Bad & The Difference: How to Tell Right from Wrong in Everyday Situations, by Randy Cohen (New York, NY: Doubleday Broadway Publishing Group, 2002). 284 pgs.
    • Homeland Security Statutes, 2003 Ed., edited by Government Institutes Research Group (Rockville, MD: Government Institutes, 2003). 600 pgs.
    • International Franchising in Industrialized Markets: North America, the Pacific Rim, and Other Countries, edited by Dianne H.B. Welsh & Ilan Alon (Riverwoods, IL: CCH Inc., 2002). 368 pgs.
    • Law Partnership: Its Rights & Responsibilities, 2nd ed., by George H. Cain (Chicago, IL: ABA Senior Lawyers Division, 1999). 362 pgs., with diskette.
    • Legal Cases of the Civil War, by Robert Bruce Murray (Mechanicsburg, PA: Stackpole Books, 2003). 352 pgs.
    • Medical-Legal Aspects of Drugs, by Marcelline Burns, Ph.D. (Tucson, AZ: Lawyers & Judges Publishing, 2003). 468 pgs.
    • Medical-Legal Aspects of Long-Term Care, edited by Jeffrey M. Levine, MD (Tucson, AZ: Lawyers & Judges Publishing, 2003). 361 pgs.
    • The Nature of the Farm: Contracts, Risk, and Organization in Agriculture, by Douglas W. Allen & Dean Lueck (Cambridge, MA: The MIT Press, 2003). 280 pgs.
    • Paralegals, Profitability, and the Future of Your Law Practice, by Arthur G. Greene & Therese A. Cannon (Chicago, IL: ABA Law Practice Management Section, 2003). 174 pgs., with diskette.
    • Taking Sides on Takings Issues: The Impact of Tahoe-Sierra, edited by Thomas E. Roberts (Chicago, IL: ABA State & Local Government Law Section, 2003). 109 pgs.

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