Book Reviews
This Month's Featured Selections
Legal Advocacy: Lawyers and Nonlawyers at
Work
By Prof. Herbert M. Kritzer
(Ann Arbor, MI: The University of
Michigan Press, 1998).
269 pgs. $44.50.
Reviewed by Ted Schneyer
Debate about the extent to which nonlawyers should be permitted to
offer legal services is long on rhetoric, short on facts. The bar argues
that only licensed attorneys should practice law because they alone are
adequately trained, subject to professional discipline for misconduct,
and socialized to put clients' interests above their own. Consumer
groups counter that bans on nonlawyer practice are the product of a
professional conspiracy to drive up prices. The debate can only be
advanced by putting rhetoric aside in favor of studies comparing the
performance of lawyers and nonlawyers in fields in which they regularly
compete. Prof. Kritzer's book is a welcome example.
Legal Advocacy compares the work of the lawyers and
nonlawyers who advocate for unions and employers in labor arbitrations
and for parties in administrative appeals involving unemployment
compensation claims, state tax liability disputes, and social security
disability claims. The comparisons are particularly instructive because
oral and written advocacy is widely viewed as the lawyer's most
distinctive skill, yet nonlawyers often serve as advocates in these
settings. Based on his observation of arbitrations and hearings over
several years, and on a survey of outcomes in hundreds of proceedings,
Kritzer concludes that parties generally benefit from having
representation. Except in tax appeals, however, lawyers do not achieve
significantly better results for their clients than do nonlawyer
advocates.
For example, when disability claims are denied and claimants appeal
to the Social Security Administration's (SSA's) Office of Hearings and
Appeals, their success rate is 15 to 20 percent better with
representation. Yet lawyer representatives do only 2 to 6 percent better
than nonlawyers, and the discrepancy is even smaller when cases go to a
hearing. Formal legal training is unlikely to explain these minor
differences. Most lawyers represent such claimants on a contingent fee
basis; most nonlawyer advocates are salaried employees in welfare
agencies. So, lawyers are more motivated to turn down weak cases and to
win the cases they accept.
Nor are clients in administrative proceedings more vulnerable to
misconduct by lay representatives, or better protected against lawyer
misconduct by the availability of professional discipline. Agencies such
as the SSA and the Patent & Trademark Office, which permit
nonlawyers to practice before them, maintain internal "disciplinary"
systems. In neither agency, Kritzer points out, are proportionately more
grievances filed against nonlawyers.
Kritzer's key point is that not all advocates before an
administrative tribunal are on a par. Success rates vary substantially,
but not on the basis of one's status as a lawyer or nonlawyer. The
crucial variable is whether the advocate "specializes" in the type of
matter at hand. Highly specific knowledge of the substantive law in a
field, of the procedures a particular agency follows, and of how to
prove such esoteric facts as the existence of a particular disability,
along with an insider's knowledge of the tendencies of particular
hearing examiners - these are the things that count. These are rarely
the products of a general legal education.
With law practice becoming ever more specialized - so much so that
lawyers in one department of a law firm may have only the vaguest idea
of what colleagues in other departments do - the pressures to open up
more fields of practice to nonlawyers can only increase. On Kritzer's
careful assessment of the evidence, this should not be cause for
concern. On the contrary, it is heartening that at least 38 federal
agencies now permit nonlawyers to represent parties in
quasi-adjudicative proceedings. What is troubling is that many state
supreme courts, invoking the doctrine of separation of powers, still bar
nonlawyers from worker's compensation and certain other administrative
proceedings.
The Amicus Brief: How to Write It and Use It
Effectively
By Reagan Wm. Simpson
(Chicago, IL: ABA Tort & Insurance Practice Section,
1998). 144 pgs. $59.95.
Reviewed by Curt Pawlisch
An amicus brief should never be redundant. That is the core piece of
advice in this short but helpful book.
Simpson and his coauthors enumerate the possible goals of an amicus
brief, such as addressing policy issues or supplementing a party's
brief. The authors' advice follows from there: Identify the goals of
your amicus brief, write the brief to meet those goals, and keep it
short.
The authors also provide seven amicus briefs, or excerpts from
briefs, that illustrate the points made in the text. The briefs are
often interesting in their own right, especially an amicus brief filed
by the U.S. Solicitor General in Gregg v. Georgia, 428 U.S. 153
(1976), a death penalty case. Also included are federal court rules on
amicus briefs.
Perhaps the book affords nothing new for the veteran appellate
practitioner, but for the rest of us, it is a useful guide for writing
an effective amicus brief.
Dancing Corn Dogs in the Night: Reawakening Your
Creative Spirit
By Don Hahn
(New York, NY: Hyperion, 1999).
256 pgs. $16.07.
Reviewed by Donna M. Jones
Dancing Corn Dogs in the Night is an enjoyable book filled
with personal insights and important tools for reawakening your creative
spirit. Seeing animated corn dogs on a drive-in movie theater screen was
"life transforming" for Don Hahn who has since become a successful
producer of such animated films as "Beauty and the Beast" and "The Lion
King." Those big-screen animated snacks mesmerized the 5-year-old Hahn.
At night in his bedroom he would recreate the entire Milky Way galaxy on
his ceiling and the allied invasion of Normandy under his sheets using a
mere flashlight, colander, tin foil, and pajama bottoms. Hahn shares
much about his creative and professional journey in interesting ways. He
likens his book to a hardware store and invites you to take whatever
tools spark your creativity to enrich your life.
Dancing Corn Dogs is rich with advice, humor, and anecdotes.
"The Forces" offers advice on 12 universal creative forces ranging from
craft to truth. "The Passion" provides useful lists including nine
elements of creative expression, a textbook creative process, and six
rules regarding the importance of taking "Time Alone" to create.
Playfully, Hahn introduces one of his imaginary favorites, "The Guy
Store," where he spends quality time alone for creative fun. In "The
Fears" the significance of criticism is cleverly deflated in one-line
quotes of criticism by and about famous people - Neitzsche criticizing
Plato, Tolstoy criticizing Neitzsche, and so on. Hahn adds his foolproof
method for dealing with criticism and emphasizes that your "creativity
is your way of thinking." Remaining chapters include "The Beginning,"
"The Spirit," "The Senses," and "Rebirth."
To Hahn creativity is much like a child's wide-eyed wonder. His only
homework-like assignment has you observing - not judging - the joy and
intensity of children playing in a group. As you (re)discover your inner
creative child, Hahn describes the eight developmental stages of its
"Rebirth;" from "Make Room for Baby" (your creative self) to "Empty
Nesters" (fear of completion). Packed with pointers, this book is great
... especially for anyone who has lost touch with his or her creative
spirit.
An Estate Planners Guide to Qualified
Retirement Plan Benefits
By Louis A. Mezzullo
(Chicago, IL: ABA Real Property, Probate
and Trust Law Section, 1998).
202 pgs. $89.95.
Reviewed by Michael J. Hudson
With qualified retirement plan and IRA benefits quickly becoming the
largest asset for many individuals, knowing how to address the multitude
of planning aspects surrounding these products has become a vital skill
for attorneys, accountants, trust officers, and insurance professionals.
Although the book is created for those engaged in estate planning on a
somewhat regular basis, it provides a good overview and reference for
the non-ERISA professional looking for a broad-based introduction to the
major issues and rules of qualified retirement plans and IRAs.
This six-chapter book begins with the major congressional activity
that changed the rules surrounding qualified retirement plans and IRAs,
showing why advising clients of retirement benefits has become complex.
Chapter one also highlights the different types of qualified retirement
plans, touching upon tax and nontax rules and benefits of contributing
to certain plans.
Rules that govern distributions from retirement plans are covered in
chapters two and three. The text focuses on the minimum required
distribution rules and an overview of the rules regarding when the
participant dies. There is a discussion of options available to
beneficiaries and issues surrounding the naming of a designated
beneficiary. Concepts such as calculating the required minimum
distribution, how life expectancies figure into the calculation, and
differences between recalculation and nonrecalculation are explained.
This section analyzes why individuals choose different options.
Discussion of retirement plan distributions continues with an
explanation of income taxation of benefits. Details of how to calculate
the taxable portion of distributions, how qualified retirement plan
distributions can qualify for special averaging and capital gain
treatment, and a summary of rules regarding rollovers of funds also are
provided.
Chapters four and five explain the gift and estate tax implications
of retirement plan benefits. Estate planning issues include qualifying
for the marital deduction, QTIP issues, and effective use of disclaimers
to pass along benefits. Survivor annuity rights available to spouses of
qualified plan participants are explained.
The final chapter and appendices tie together the various topics
highlighted by discussing planning options available before retirement,
at retirement, and after death for qualified retirement plans and
IRAs.
Wisconsin
Lawyer
