Wisconsin
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, www.cap-press.com.
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.
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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.
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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, www.lawcatalog.com.
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.
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