Wisconsin Lawyer
Vol. 82, No. 9, September 2009
ESI Handbook: Sources, Technology and Process
By Adam I. Cohen and G. Edward Kalbaugh (Riverwoods, IL: Aspen Publishers, 2008). 300 pgs. +CD-ROM. $175. Order, (800) 638-8437.
Reviewed by Jacques C. Condon
If you are looking for a big-picture guide to electronically stored information (ESI), this book is a must own. Whether it was the authors’ intent or not, the ESI Handbook fits squarely within the hornbook genre. It reads as if written for a nontechnical layperson and is surprisingly thorough in its content.
The authors suggest the ESI Handbook will aid judges, other practitioners, and “corporate e-discovery teams” as a practical guide to electronic discovery; this may be true from a pure, informational perspective. But what makes this handbook succeed is its information, not its analysis.
The best feature is its organization. The first half presents an expansive glossary of computer technology that is useful for readers at any level of technology experience.
The second half walks the reader through the e-discovery process. For litigators in need of a way to talk the talk in depositions and written discovery, the ESI Handbook contains useful tools to understand, locate, and draft discovery requests. For corporations, the handbook includes recommendations as to the method and process of preserving documents.
An appendix, with sample discovery, general e-discovery terminology, and a sample retention policy, is included. A companion CD-ROM reproduces the appendices in .rtf format (a term that should be, but is not, defined in the glossary).
Not to be overlooked are summary sections devoted to the 2006 amendments to the federal rules, spoliation, and other e-discovery legal issues. The sections are small. The issues could be fleshed out, but here too, expanded discussion would detract from the handbook’s purpose.
Although the retail price of $175 seems steep for a hornbook (for subject matter that is neither sexy nor gripping), the ESI Handbook progresses evenly from an introduction to ESI sources to a discussion of performing electronic discovery to the conclusion, a mini-guide to e-discovery readiness. This well-organized and researched handbook provides a good value for the big-picture reader.
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Medicare Claims Appeals Process Handbook
By Lester J. Perling (Riverwoods, IL: Wolters Kluwer Law & Business, 2008). 712 pgs., looseleaf. $249. Order, www.kluwerlaw.com.
Reviewed by Bruce P. Bower
This comprehensive work covers the gamut of a very complex topic – the Medicare Part A and Part B claims appeal process. Topics include the Medicare claims processing system, national and local coverage determinations, the new claims appeal process, appeal rights of Medicare providers and suppliers, initial determinations, redeterminations, reconsiderations, administrative law judge appeals, Medicare Appeals Council review, judicial review, quality improvement organization reviews, and reopenings. The volume also treats post-payment audits. Attorneys for providers, suppliers, and Medicare beneficiaries will find the treatise useful. The author states at the outset that detailed treatment of appeals and grievances under Medicare Advantage (MA) (managed care) and under Medicare prescription drug plans (PDPs) “is beyond the scope of this book.” Nonetheless, the author provides a brief overview of MA appeals and grievances and PDP appeals, with Social Security Act and Code of Federal Regulation cites.
The book uses a mix of references to statutes and federal regulations and charts and tables. Illustrative is the chapter, “Overview of the New Claims Appeals Process.” This chapter contrasts the new appeals process, under federal regulations effective May 1, 2005, with the old rules that applied to Medicare Part A and Part B appeals. The new five-step appeals process is thoroughly described and is also visually displayed by a chart contrasting the new and old systems. Time limits for going from one stage of appeal to the next and minimum required-amounts-in-controversy are shown. Time limits for adjudicators’ completion of appeals are displayed in a table. Sample forms pertaining to appeals are included. Another chart shows the advantages and disadvantages of the new and old systems. The chapter contains a full copy of the Federal Register issuance of the new rules (from March 8, 2005).
The chapter on provider and supplier appeals rights and rules for representation likewise contains examples of forms and cogently treats the expanded rights of providers and suppliers to participate in Medicare appeals under the Benefits Improvement and Protection Act of 2000. This chapter also addresses attorney fees, noting that providers or suppliers cannot charge the beneficiary attorney fees, and that attorneys who represent providers or suppliers in appeals do not need approval of their fees. Attorneys who represent Medicare beneficiaries in Medicare appeals do need approval of their fees (if payable by the client) from the U.S. Department of Health and Human Services.
Other chapters go into extensive detail, with numerous charts. However, the coverage of fees awardable by federal courts against the Medicare agency under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), could stand more detail. Likewise, the limitations under 5 U.S.C. § 504 on EAJA fees at the administrative level could be more fully treated. Of course, attorney fees awardable against the Medicare agency have many variables, so counsel would need to carry out extensive research even if the book covered attorney fees in great detail.
In sum, this work provides very detailed, easy-to-understand treatment of the complex area of appeals under Medicare Part A and Part B.
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Neuroscience in the Courtroom: What Every Lawyer Should Know About the Mind and the Brain
By William R. Uttal (Tucson, AZ: Lawyers & Judges Publishing, 2008). 288 pgs. $45. Order, (800) 209-7109.
Reviewed by Sara J. Bergene
Lawyers, regardless of their practice area or specialty, need to understand the important and necessary roles the brain, the mind, and the concept of mens rea play in the practice of law and judicial proceedings. This is an insightful book that reminds one of the tenuous and uncertain conclusions derived about the mind-brain relationship, the scientific and nonscientific tools we employ to “read” our mental thoughts and actions, and the use of such tools in the legal arena. These conclusions play an important role in the way lawyers develop and structure their courtroom strategies.
Introductory chapters that address the important foundation questions, “what is the brain,” and “what is the mind,” are clearly and concisely written, thus making for enjoyable reading for people lacking a philosophy or science background. The author sets out the historical theories regarding mind and brain, important because these theories still serve as the basis for our modern theories and debates. Assumptions about the way the mind and brain function can have an important impact on the way the judicial system uses neuroscientific measures.
Later chapters address the desire to read minds and the various technologies that attempt to assign a corresponding mental activity to different instances of brain activity, particularly attempts to detect deception, aggression, and cognitive dysfunction. The common thread underlying all attempts is that their outcomes are inconsistent, incomplete, unreliable and cannot be verified; as such, they do not meet either the Daubert or Frye standards for admissibility. The author analyzes a variety of neuroscientific experiments in arriving at this conclusion. The use of such cognitive neuroscience devices in judicial proceedings is extremely premature; any belief to the contrary, the author argues, is the result of lawyers’ general lack of scientific knowledge and overemphasis on scientific evidence. The closing chapter briefly addresses the ethics implications of neuroscience.
Overall, the book serves as an important tool to lawyers in understanding the mind-brain relationship, neuroscience, and the role of current scientific knowledge in the courtroom. The author does an excellent job of surveying the topic of neuroscience and explaining the scientific elements in a manner that lawyers with nonscience backgrounds will easily understand. However, the author disappoints by not discussing more courtroom strategies and practice tips for lawyers who encounter such evidence in a proceeding. A more extensive discussion of the legal effects of neuroscience would have been beneficial, as would be cites to additional reference material on this topic. Reading this book will definitely change lawyers’ views of neuroscientific evidence and their desire to exclude such evidence when it might be used against a client.
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Waking the Sleeping Demon: 26 Hours of Terror in Atlanta (The True Story of the Atlanta Courthouse Shootings)
By Shoran Reid (Jacksonville, FL: Rella Publishing, 2008). 256 pgs. $17.95. Order, www.shoranreid.com.
Reviewed by Marilyn P. Hamilton
This is the story of a horrific crime spree committed by Brian Nichols on March 11, 2005, in and near the Fulton County (Ga.) Courthouse and an Atlanta suburb. While in the custody of the Fulton County Sheriff’s Department and on trial for the rape of a former girlfriend, Nichols escaped by beating the deputy sheriff assigned to escort him to the courtroom. She was injured so badly that she suffered permanent brain damage. Nichols, dressed in civilian clothes because his trial was scheduled to resume in 30 minutes, took the deputy’s gun and entered (through a private hallway) the chambers of the judge who was presiding over his trial. For a few minutes, Nichols terrorized the judge’s staff, an attorney, and a deputy. Then Nichols entered the courtroom in which the judge was hearing civil motions in another case and shot and killed the judge and the court reporter. Nichols then exited the courthouse and killed a deputy sheriff in the street. In the ensuing confusion, Nichols carjacked several people at gunpoint, taking one vehicle and then abandoning it to take another. He got away despite a heavy police presence in downtown Atlanta. Although authorities put out “armed and dangerous, whereabouts unknown” bulletins, Nichols killed again that night in an Atlanta suburb. This victim was an off-duty U.S. Immigration and Customs agent, who was working late to renovate a house before moving his family into it. Nichols then drove the agent’s truck to the apartment of a young woman, who is credited with persuading Nichols to surrender to authorities the next day.
For about 26 hours, Nichols was on the run and extremely dangerous. I was working as an attorney in a neighboring county and living in metro Atlanta at the time of the murders.
This book is confusingly written, going back and forth between third-party narration and narration by the assistant district attorney who prosecuted the rape trial. If I did not already know the facts, I would have been lost. The book’s gimmick of presenting the case through the viewpoint of one of the prosecutors added little to the discussion, because this assistant D.A. was not in the courtroom at the time of the murder, left the courthouse soon thereafter, and traveled out of the metro-Atlanta area to distance himself and his family from the escaped Nichols. Moreover, this assistant D.A.’s “thanks” to the murderer, for focusing the assistant D.A. on what is really important in life, sounds hollow and overly dramatic. Many attorneys reevaluated their lives in the aftermath of that murderous spree, without feeling the necessity to thank the murderer.
The real victims – the murdered judge, court reporter, deputy, and agent, and the permanently brain-damaged deputy – were not given their due but used as a backdrop for the “victim” status of the assistant D.A. The author missed the opportunity to write a true memorial to these victims. The author also missed the opportunity to raise the broader questions inherent in this tragic attack on our system of justice: the killing of a judge who was sitting on the bench conducting the people’s business in a public courtroom and the injury to and murders of three people whose roles in our justice system were vital. Even the title of the book disappoints; although the author pronounces Nichols a psychopath, she later admits no such diagnosis has been made by mental health professionals. The author alluded to, but failed to convey, how Nichols presented himself (in and out of court) as extraordinarily charismatic, handsome, and intelligent, which ultimately was what made Nichols so dangerous and his actions so evil in striking at the very heart of our justice system. Incidentally, the failure to proofread also detracted from the message.
The book would have been given more salient details if publication had been delayed until after Nichols’ murder trial ended in mid-December 2008. It is ironic that, given the author’s chapter assuming Nichols would get the death penalty, Nichols was convicted but sentenced to life without parole because the jury could not agree on death. (Georgia conducts a bifurcated trial, with the first phase deciding guilt or innocence. If the defendant is found guilty, the second phase is a jury finding as to whether to impose the death penalty; both jury findings must be unanimous.) Readers wishing more information on this case can search the local newspaper coverage at ajc.com (The Atlanta Journal-Constitution).
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