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    Wisconsin Lawyer
    April 09, 2008

    Book Reviews

    Lifting the Fog of Legalese: Essays on Plain Language The Law of Later-Life Health Care and Decision Making Defending Federal Criminal Cases: Attacking the Government's Proof

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 4, April 2008

    Book Reviews

    Lifting the Fog of Legalese: Essays on Plain Language

    By Joseph Kimble (Durham, NC: Carolina Academic Press, 2006). 199 pgs. $23. Order,

    Reviewed by Thomas A. Heyn

    Kimble begins: "[M]ost lawyers ... fancy themselves to be rather good writers ... likewise, most lawyers strongly prefer other writers' prose to be plainer, simpler, shorter, clearer, but they also strongly resist changing their own style." (I guess it's true: It is easier to see others' faults while being blind to one's own.)

    The book is a collection of essays on plain language that Kimble has written for a half dozen legal journals. The first half of the book diagnoses the problem. He cites several separate studies in which lawyers, judges, and others were given side-by-side comparisons of legalese and plain language. The studies included actual language from statutes, briefs, jury instructions, contracts, and other documents, along with proposed plain language versions. The survey respondents overwhelmingly preferred and better understood the versions in plain language.

    As a good lawyer, Kimble addresses his opponents' views. He discusses the need for precision, for terms of art, for literary effect, and other objections that seemingly argue for retaining legalese. Then he shows how each of these are better served with plain language.

    The second, and longer, part of the book discusses rules and how-tos for writing plain language. Essays are devoted to writing clearer and shorter judicial opinions, better briefs and memos, and plainer and simpler legislation. Another essay discusses using formatting and heading styles to guide the reader easily through lengthy documents. Some final essays include lists of simpler words and expressions to substitute for common legalese.

    Every lawyer would do well to read this book. It's a quick read, convincing in its arguments, and a great reference booklet for better writing. I don't know how much it will help my writing - mine is pretty good. But I'm sure it will help your writing a lot.

    Thomas A. Heyn, U.W. 1998, is a sole practitioner in Cottage Grove, practicing in estate planning, elder law, real estate, and small business issues.

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    The Law of Later-Life Health Care and Decision Making

    By Lawrence A. Frolik (Chicago, IL: ABA Senior Lawyers Division, 2006). 298 pgs. $99.95. Order, (800) 282-2221.

    Reviewed by Robert G. Alexander

    I confess; this is a difficult book for me to review. On one hand, I think the book is an excellent survey of technical and complicated subject matter. On the other hand, because this is a national publication, it fails to address the specifics of Wisconsin law and therefore is somewhat limited in its usefulness for the day-to-day practice of law in Wisconsin.

    This volume surveys the subjects of paying for health care; long-term care housing options; paying for long-term care; the legal implications of incapacity, guardianships, and powers of attorney; and end of life decision making. The volume provides more than sufficient detail regarding the subject matter to be a useful reference manual. It is well-cited to federal law and includes case cites where appropriate. Each of the five chapters is well laid out and the table of contents for each chapter is detailed, providing a handy index of the subject matter. The substance of each chapter is sufficient to provide a solid background in the subject matter. The book is very readable and provides practical insights into the subject matter being covered. The companion volume to this book is Advance Health Care Directives: A Handbook for Professionals, by Carol Krome, MD, and Scott K. Summers, also published by the ABA.

    Although I find this book very useful and often refer to it in my day-to-day private practice, this would not be my first choice of resources for practitioners who need more in-depth information specifically geared to Wisconsin law. To fulfill that need, I suggest that lawyers look to the two-volume set published by the State Bar of Wisconsin: Advising Older Clients and Their Families. In my opinion, this excellent series is the "go to" resource for Wisconsin practitioners.

    For a handy reference source discussing elder law issues from a national perspective, The Law of Later-Life Health Care and Decision Making is an excellent volume. While there are many elder law treatises available commercially (many of which contain practice forms, which this volume does not), as with all ABA publications, this volume is attractively priced at $89.95 for ABA Senior Law Division members and $99.95 for all others.

    Robert G. Alexander, U.W. 1976, maintains a law practice in Milwaukee.

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    Defending Federal Criminal Cases: Attacking the Government's Proof

    Edited by Diana D. Parker (New York, NY: Law Journal Press, 2006). 500 pgs. $219. Order,

    Reviewed by Janice A. Rhodes

    In 1994, 83 percent of all persons charged with federal offenses were convicted. By 2004, 90 percent were convicted. (These data are found in the "Compendium of Federal Justice Statistics" for 1994 and 2004, compiled by the Bureau of Justice Statistics in the Office of Justice Programs of the U.S. Department of Justice.)

    With statistics like these, criminal defense lawyers need all the help they can get.

    Defending Federal Criminal Cases: Attacking the Government's Proof is a recent addition to the genre of criminal defense manuals. It is edited by Diana D. Parker, a former partner of Martha Stewart's trial lawyer. Each chapter is credited to a different set of criminal defense lawyers from New York City, Boston, and Washington, D.C. firms, many of whom are former upper echelon prosecutors.

    Parker's book is not a comprehensive "how to" covering all phases and aspects of criminal defense representation. The selected topics center on obtaining information about the government's evidence and making the best of it. Remember bills of particulars, a procedural right all but declared dead in recent years because of courts' reluctance to grant them? The authors suggest revitalizing bills of particulars for service in today's complex cases in which defense lawyers are swamped with discovery but clueless as to the government's theory. The problem of false testimony from government witnesses also receives searching analysis.

    A real world defense perspective underpins many of the topics. It is refreshing to see a bedeviling evidentiary issue recognized and addressed head-on: the problem of law enforcement agents testifying as "experts" on criminal practices, modus operandi, and jargon and opining that your client's conduct was consistent with their expert knowledge. Armed with Parker's book, the defense can prevent or rein in such testimony with the clear explanation of evidentiary rules and case law applied in this context.

    The final chapter compiles potential motions stemming from every constitution-based right one can think of, with abundant citations to decisional law. It even explains how the ubiquitous government practice of discouraging prosecution witnesses from talking to the defense may violate due process. While the current state of constitutional law usually is depressing for criminal defense lawyers, perhaps it is well to remember that anything can happen following Crawford v. Washington, 541 U.S. 36 (2004). Here, as elsewhere in the book, the authors are careful to point out areas of law ripe for pushing the envelope.

    Not all chapters or topics are especially helpful or interesting. Some, such as the discussion of suppression, are little more than micro-summaries of topics handled by others in greater depth. The chapter on general pretrial motions is adequately thorough if one needs to make a motion on improper venue or severance, but it fails to show how the defense can best use such motions strategically.

    Experienced criminal defense lawyers will pick up new ideas from this book and will be reminded of what they once knew but long ago gave up on. Their less jaded criminal defense colleagues will learn a lot from the book, which obviously is written with the "big case" in mind. Civil litigators also will benefit from the in-depth analysis of crossover evidentiary issues.

    Janice A. Rhodes, Stanford 1980, is a shareholder in the Milwaukee firm of Kravit, Hovel & Krawczyk s.c. She litigates complex criminal and civil cases.

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