Wisconsin Lawyer
Vol. 82, No. 4, April 2009
2008 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple
By Sharon D. Nelson, John W. Simek & Michael C. Maschke (Chicago, IL: ABA Law Practice Management Section, 2008). 172 pgs. $79.95. Order, (800) 285-2221.
Reviewed by C. Michael Hausman
This guide provides solo and small-firm attorneys and their employees with an excellent working understanding of the equipment available to assist them in operating their firms. The guide discusses each of the critical components: computer/operating system, monitors, printers, scanners, servers, and so on. It gives a detailed analysis of each type of equipment, including attributes and drawbacks to consider before purchasing.
Of particular interest are the authors’ recommendations for components, which includes a breakout of each type of hardware component, and a thorough analysis of case-management and time-billing functions. The guide is written in an easy-to-understand style, so instead of becoming lost in the technological details of equipment, the reader gains an understanding of the options available when choosing a system for word processing, billing, document management, and so on.
The guide is not written for computer geeks; it is written in a very readable and understandable way to help the rest of us make decisions about technology. Even if used for no other purpose, this guide is valuable for attorneys setting up or updating office systems.
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Special Needs Trust Handbook
By Thomas D. Begley Jr. & Angela E. Canellos (Riverwoods, IL: Wolters Kluwer / Aspen Publishers, 2008). Looseleaf binder: 1,156 pgs. w/CD-ROM. $245. Order, www.aspenpublishers.com.
Reviewed by Barbara S. Hughes
Special needs law – trust law, public benefits law, disability law, tax law, the alphabet and number soup of myriad local, state, and federal programs and agencies – is complex. Where can attorneys begin to learn how to advise clients about special needs issues and how to draft special needs trusts or to improve our counseling and drafting? Authored by attorneys Thomas Begley of New Jersey and Angela Canellos of Wisconsin, the Special Needs Trust Handbook is a book we’ve all wished for years to have in our libraries. It gathers into a single volume a vast amount of information that provides a solid grounding for special needs law practice. Written in an easily read style, this reference work is national in scope, yet should adapt easily to use by Wisconsin attorneys.
The book is divided into nine chapters, some with appendices including helpful forms, which also appear on the CD-ROM. The first chapter, “Planning for People with Disabilities,” describes many common disabilities and their associated support groups. Touching on life care planning, life stages, and transition points, this chapter surveys residential alternatives, special education requirements, employment, and social and recreational opportunities for individuals with disabilities. The role of the special needs attorney is described, as are legal documents necessary for special needs individuals and some of the relevant laws and policies.
Chapter 2 summarizes all the major public benefit programs for individuals with disabilities and their families and includes citations to facilitate the reader’s research into specific programs. A helpful chart distinguishes among Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI), Medicaid (MA), and Medicare. The Social Security Administration’s Program Operating Manual System (POMS) is introduced, along with its national, regional, and region counsel opinions, as is the concept of SSI benefit reduction due to deeming or to a third party (an individual or a trust) providing in-kind support and maintenance. The Medicaid section explains the difference between the “209(b) states” and the “1634 or SSI states” (Wisconsin being the latter), contains an outstanding background discussion of MA waiver programs, and includes a chart summarizing Social Security benefits. Treatment of Medicare, housing assistance, food stamps, veterans’ benefits, S-CHIP, Shriners’ Hospitals for children, and high-risk insurance pools rounds out this chapter, which by itself is an invaluable resource and essential background for a special needs attorney.
Chapter 3 covers a broad spectrum of estate planning basics for the special needs family, making this a comprehensive resource for special needs planners. Advantages and disadvantages of revocable living trusts are listed. (Not mentioned is a key difference between testamentary and inter vivos subtrusts that this reviewer routinely covers with clients.) The Uniform Durable Power of Attorney Act discussion is well footnoted, making this commentary a useful reference for when the act is adopted in Wisconsin. The sample durable power of attorney appendix form includes catastrophic illness powers with an optional Title 19 gifting provision, the power to fund a special needs trust, and a good “miscellaneous acts” power covering care of animals. This chapter also discusses lifetime gifting to irrevocable trusts, federal and state estate and inheritance taxes, and psychiatric advance directives, and the appendices contain many estate planning forms.
Chapters 4, 5, and 6 cover special needs trusts (SNTs), with Chapter 4 providing the general discussion and a clear comparative chart of the different types of SNTs. A valuable section, with discussion of case law, focuses on differences in distribution standards between SNTs and other kinds of trusts; the effect of the Uniform Trust Code (currently in preparation for legislative introduction in Wisconsin) on SNTs; POMS considerations relevant for drafting SNTs; and an explanation of how SSI and MA are decoupled, along with comparability between SSI and Medicaid as to eligibility rules. The authors discuss trustee provisions and advice to trustees and plaintiffs’ counsel in injury litigation, provide as an appendix a comprehensive memorandum to SNT trustees, and cover establishment or reformation of an SNT through court intervention and pooled trusts. An appendix lists pooled trusts nationwide.
Chapter 5 focuses on the third-party SNT. The authors address drafting issues; income, gift, and estate taxes; the qualified disability trust under the Internal Revenue Code; trust funding; and the trust settlor’s letter of intent. A massive Chapter 5 appendix includes a wide variety of forms, among which are intake forms, a third-party SNT, a qualified disability trust variant of a third-party SNT, a letter-of-intent template, and an explanatory memorandum to the trustee.
Chapter 6 deals with self-settled SNTs, beginning with a discussion of alternatives. A self-settled SNT may be a useful receptacle for personal injury lawsuit proceeds, divorce settlements, inheritances, and other funds, all of which would prevent a beneficiary from qualifying for MA and SSI. Topics include drafting issues, submission of the trust to the Social Security Administration and to the county or state MA agency for approval, taxation, liens and claims, and matrimonial actions. Appendices provide a checklist and questionnaire; a self-settled SNT form; many letters to the client, personal injury attorney, state MA agency, court, trustee, payor insurance company, Medicare, and Social Security, among others; and sample New Jersey court documents.
Chapter 7, “Special Situations Involving Special Needs Trusts,” provides a comprehensive discussion of structured settlements and § 468(b) trusts (qualified settlement funds), which are useful when multiple-plaintiff cases settle. A brief discussion of vaccine settlements and Medicare set-aside arrangements rounds out this chapter.
Chapter 8 focuses on guardianship of minors or persons with disabilities. Citations are to the Uniform Guardianship and Protective Proceedings Act, not to Wisconsin’s 2006 guardianship and protective placement reforms. This chapter also cites to the Uniform Adult Guardianship and Protective Proceedings Jurisdictional Act.
Chapter 9 addresses SNT administration, which is where the rubber meets the road. It may be useful to read this relatively short section before tackling Chapters 5 and 6. Included are trustees’ duties, the Uniform Prudent Investor Act, distributions issues (including those that will interfere with the SSI recipient’s cash benefit), reporting requirements, and taxes. The authors also cover home and vehicle issues, loans to the beneficiary, and trust termination.
This is a value-packed and essential addition to the library of special needs attorneys and serious estate planners.
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Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves
By John Kroger (New York, NY: Farrar, Straus & Giroux, 2008). 466 pgs. $27. Order, www.fsgbooks.com
Reviewed by Daniel M. Adams
Convictions is an autobiographical account of the author’s five-year stint as an assistant U.S. attorney in New York City. The majority of the book consists of stories of Kroger’s major cases. Although Kroger was primarily a drug-case prosecutor, much of the book deals with his pursuit of members of the Columbo crime family. The stories are interesting but fall short of the true crime genre, because of the mundane nature of the cases Kroger describes. Although he names his Columbo chapter “How We Took Down the Mob,” Kroger was largely mopping up the remnants of an organization that was taken down while he was still in college. Additionally, Kroger glosses over the legal strategy and tactics, which would be of interest to attorneys and law students.
Besides recounting his favorite cases, Kroger also presents some of the pitfalls of being a new prosecutor. Unlike other lawyers, who must carry out the wishes of their clients, prosecutors are directed to always do the right thing. Like all prosecutors, Kroger quickly discovers it is often hard knowing what constitutes the right thing.
Kroger’s experience is typical. Prosecutors have a tremendous amount of discretionary power: whether to charge, what to charge, what plea to offer, and what punishment to recommend to the court. Scores of these decisions are made every day and most have large impacts on the lives of other people. Kroger notes that making sure justice is done requires “excellent judgment,” which only comes with experience. The author states that experience can only be gained by learning from mistakes. Kroger recommends if a young prosecutor is uncertain of a course of action the prosecutor should risk erring on the side of “trust, compassion, and empathy.” This is good advice for attorneys handed incredible power straight out of law school.
Despite the fact that carrying out justice sometimes requires a prosecutor to pursue unwinnable cases and dismiss others, Kroger highlights his 97 percent conviction rate. Kroger’s use of the meaningless metric to boast of his competence obscures the nature of a prosecutor’s role, especially given the author’s professed motive to give people a better understanding of what federal prosecutors do. However, the prideful victory count does serve Kroger’s real motive for publication: on the last page of Convictions, Kroger announces he is running for attorney general of Oregon.
Ultimately, there is little rationale for a 42-year-old lawyer to write a memoir. Autobiographies written by young people usually have a hook such as overcoming extreme adversity or rising to the top of one’s profession or sport. Kroger lacks a hook, but he is a politician in need of a narrative, and Convictions provides a literal one.
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Coercive Control: How Men Entrap Women in Personal Life
By Evan Stark (Oxford Univ. Press, 2007). 464 pgs. $37.95. Order, www.oup.com/us/catalog.
Reviewed by Dianne Post
Every attorney who represents clients in family court should read this book. Approximately 80 percent of all divorces involve violence or abuse, and for attorneys to properly and effectively represent those clients, especially the victims of the abuse, they need to understand domestic abuse.
Years ago, when I was first conducting training for lawyers on domestic violence, one told me that he had been practicing for more than 15 years and had never seen a divorce case with violence. He called me about a month after the training and said how shocked he was that in the last month, he had seen more than five cases with violence. I replied, “They were there all along. You just didn’t see them.”
Likewise, many lawyers today don’t see the behavior pattern author Evan Stark calls “coercive control.” Stark’s main thesis is that outright violence is not working so well for men today given the advances in women’s rights in the United States and the changes in the laws regarding violence in the family. So men have switched gears to more controlling behaviors that in fact do more than violate the right to be free from violence, by violating the right to individual liberty. The primary harm to women is not physical but political: depriving women of liberty, personhood, and citizenship. Stark argues that this form of subjugation more closely resembles kidnapping or indentured servitude than assault. Because this behavior is not recognized either in its actions or its effects, the response of women is often not understood. In fact, Stark shows that women subjected to coercive control are acting as any reasonable person would to protect their human dignity and liberty.
The means of coercive control is micromanagement over every detail or action of a woman in some or all spheres of life. The goal is to maintain the superior position of the male as the person who dictates what is proper. It’s patriarchy writ small. It often consists of elaborate behavioral rules, lists, and monitoring, including electronic and other methods. One Russian prosecutor understood it as he said to me, “Why would a man beat a woman when there are so many better ways to control her?”
In spite of all the work on gender-based violence in the last 30 years, Stark shows that in fact women are not really any better off now than they were in 1977. Partner homicides dropped – for men. Severe violence dropped, only to be replaced by more “minor” violence and coercive control, which achieves the same end. The failure of the law has been to see gender-based violence as an incident rather than a pattern. Simply stopping violence won’t guarantee freedom or equality. Guaranteeing freedom and equality will stop violence. Countries that have the highest index of gender empowerment generally have the lowest percentage of abuse of women. The United States falls in neither of these categories. Stark argues that abuse of women should be treated as a human rights violation.
Stark also makes the point that through it all women have maintained their agency, although for various reasons this often is not recognized. First, it is easier for a judge to sympathize with a poor, battered woman victim who is hysterical and crying than a woman who is standing strong and fighting back tough as a survivor. Second, it is harder to betray the stereotype of women and perhaps the “deserved what she got” way of thinking. But a man who is being controlled and abused in the same way would have every right to fight back and would be praised for standing tall and being tough. In this situation, the law fails by treating people in the same situation differently. In other circumstances, for example the battered woman who shot her husband when he was asleep, the law fails by treating people the same when they are in very different situations. By not understanding the dynamics of violence against women and coercive control, lawyers and judges continue to violate the promise of justice and equal protection of the law.
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How Judges Think
By Richard A. Posner (Cambridge, MA: Harvard Univ. Press, 2008). 387 pgs. $29.95. Order, www.hup.harvard.edu.
Reviewed by Edward S. Marion
Judges speak a “language of linguistic inexorability.”1 We pretend that we are applying the “law” when, really, we are expressing our personal viewpoints based on the facts and the available menu of rules (admittedly, the strong form of judicial instrumentalism). “Only ordinary citizens, some jurisprudes, and first-year law students have a working conception of law as determinate.”2
Judge Richard Posner makes the case for “constrained pragmatism” in his usual erudite and entertaining way. He also offers practical advice to the advocate: “In our system the law as it is enforced in courts is created by judges, using legal propositions as raw materials. Lawyers must learn how to assist judges in that creative activity.”
In editorializing against judicial elections, a major newspaper stated that electing judges based on candidates’ political views is “an aim contrary to impartial justice.”3 Judges want the public to think that “[j]udicial elections … are different from [other] elections because judges … base their decisions on the facts and law presented in each individual case, not on their personal viewpoints on policy issues.”4
I agree with Posner, who states in this book, “[T]here is a pronounced political element in the decisions of American judges…. The evidence is overwhelming, though judges themselves tend to brush it aside.”
In the wake of recent calls for eliminating judicial elections, we should consider if educating the public on how judges think would lead judicial candidates to be more forthright in talking about how judges act.
1Frederick Schauer, Formalism, 97 Yale L. J. 509, 512 (1988).
2Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. Pa. L. Rev. 549, 579 n. 54 (1993).
3Editorial, “Truth, Justice and Merit Selection,” Wis. S. J., April 13, 2008.
4Shirley S. Abrahamson, Wisconsin’s New Code Governing Judicial Elections, 78 Wis. Law. 16 (Feb. 2005).
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Human Factors in Traffic Safety, 2d ed.
By Robert E. DeWare & Paul L. Olson (Tucson, AZ: Lawyers & Judges Publishing, 2007). 549 pgs. $109. Order, www.lawyersandjudges.com.
Reviewed by Brenda K. Sunby
If you have ever arrived at your destination with no recollection of the drive, you may have been affected by highway hypnosis, which, this book explains, results from a lack of stimulation when you drive on a very familiar or boring road. This is one example of a driving factor most drivers are familiar with but probably do not fully understand.
This book, aimed at attorneys who practice in personal injury or criminal traffic matters, helps explain why automobile, bicycle, and pedestrian accidents occur by focusing on the human factors that influence driving performance. The book, which reads like a college-level text, is divided into four sections, which focus on the driver, the vehicle, the roadway environment, and accident causation and remediation.
A substantial part of the book is dedicated to analysis of driver factors (Part I). While most people are aware that intoxicated drivers and young inexperienced drivers cause more accidents than do the general population, this book provides the studies and research to explain the interplay among intoxication, youth, and inexperience and the effect that these factors have on the driver. Also discussed are perception and information processing, perception-response time, where drivers look while driving, individual differences, fatigue, alcohol and drugs, age, medical and psychological conditions, distraction, and driver education and training.
The book also discusses vehicle (Part II) and roadway factors (Part III) involved in accidents. Whether a pedestrian can be seen in a roadway may depend on the lighting at the intersection and the vehicle’s headlights. Similarly, the roadway may become a factor in causing an accident, for example, if brush at an intersection obstructs a driver’s view of an oncoming train. The book includes many useful photographs, charts, graphs, and studies that assist the reader in understanding the many possible causes of accidents.
Finally, a section regarding accident causation and remediation (Part IV) includes analysis of pedestrians and bicyclists, left-turn crashes, single-vehicle accidents, and accuracy of eyewitness accounts.
The authors’ stated objective is “to provide the reader with a sample of the main research and thinking in an overview of each of the human factors that contribute to understanding of driving and traffic safety.” The authors do a good job of meeting this objective by providing an overview of each of the human factors, without focusing too heavily on the in-depth research. For readers interested in additional, more specific information regarding each of the topics, reference materials are included at the end of each chapter.
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The Insured Stock Purchase Agreement, 2d ed.
By Lawrency Brody & Stephen B. Daiker (Chicago, IL: ABA Real Property, Trust & Estate Law Section, 2008). 176 pgs. w/CD-ROM. $139.95. Order, (800) 285-2221.
Reviewed by Robert G. Alexander
This book is part of the ABA’s “Insurance Counselor Series.” Brody is one of America’s foremost authorities on life insurance and buy-sell agreements. Literally, when Brody speaks practitioners should listen.
Although this book is not a lengthy treatise on stock purchase agreements, there is sufficient detail for it to be an invaluable introduction to the subject matter and a handy reference guide. The book includes a discussion of the many types of stock purchase agreements, planning considerations, determination of purchase price, state law considerations, funding and methods of payment, valuation considerations, and tax issues including estate, income, and S-corporation tax issues.
Exhibit one to the volume is a handy reference chart comparing stock redemption and cross-purchase agreements. Exhibit two is a chart illustrating the complex IRC attribution rules applicable to stock redemptions. Exhibit three is an annotated sample stockholders’ agreement, which also is provided on a CD-ROM. The volume is well indexed, making it easy to use as a day-to-day practical reference guide.
Each of the 10 chapters is clearly written and well-annotated with citations to pertinent IRC sections, rulings, and case law. The commentary, examples, and planning tips are insightful and easy to follow. I often refer to this and the other books in this series in my own practice. This is a book I can highly recommend with confidence.
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The Family Lawyer’s Guide to Bankruptcy: Forms, Tips, and Strategies, 2d ed.
By Shayna M. Steinfeld & Bruce R. Steinfeld (Chicago, IL: ABA Family Law Section, 2008). 386 pgs. w/CD-ROM. $129.95. Order,
(800) 285-2221.
Reviewed by Jason J. Hanson
As the name implies, this book is a primer on bankruptcy law for family law attorneys. About a third of the book consists of text, analysis, and case citations for various bankruptcy issues that can arise in family law litigation. The remainder of the book includes copies of pertinent state statutes and bankruptcy forms. The book also includes a helpful CD-ROM containing digital versions of the forms.
The book is impressively up-to-date and includes treatment of various issues arising under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) and changes made to the bankruptcy code by BAPCPA. While it is probably not of much use to a bankruptcy lawyer, the book provides a good foothold for family lawyers encountering bankruptcy issues in their cases. The book has a great discussion regarding how to determine whether a particular debt owed to a nondebtor ex-spouse is “in the nature of support,” which drastically affects the dischargeability of the debt.
The book also features a good discussion of the applicability of the automatic stay to family court proceedings. The effects of the automatic stay on property division, as opposed to actions related to support, are well spelled out, as is information on obtaining relief from the stay through the bankruptcy court.
Some of the text is dense, and the book would be enhanced by summary or bullet charts. The book provides case citations on a variety of issues, which would prove invaluable for a lawyer about to perform legal research. Generally, the book is accessible, precise, and complete. It is a good resource for any family lawyer to have when the need arises.
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Gangs in Court, 2d ed.
By Lewis Yablonsky (Tuscon, AZ: Lawyers & Judges Publishing Co., 2008). 337 pgs. $49. Order, (800) 209-7109.
Reviewed by Lora M. Beseler
As a criminologist and social psychologist, author Yablonsky draws on his 50 years of field research into gangs and gangsters, incorporating the theories and research of sociological “greats” such as Robert K. Merton, Emile Durkheim, Cloward & Ohlin, Edwin Sutherland, Marvin Wolfgang, and others, to develop his own “near group theory” applicable specifically to gangs and their members.
This book is not only educational meat for lawyers, social workers, therapists and counselors, educators, and law enforcement personnel, among others, but also a handbook on gangs and gangsters for judges, prosecutors, and defense attorneys.
Beginning with the historical evolution of gangs in America, Yablonsky moves into a thorough discussion of types of gangs, their characteristics and structure types, members’ roles, the causal nexus between family and “hood,” and the individual’s entry into criminal street gangs. Using these factors, Yablonsky demonstrates that careful analysis and evaluation distinguishes between random, independent criminal acts by an individual who happens also to be a gangster and criminal activity appropriate to “gang enhancement” statutory sentencing. Throughout the book, Yablonsky illustrates the near group theory via real case examples.
Yablonsky pays special attention to the impact of cultural values and norms on the makeup of ethnic gangs and their activities. Hispanic gangs, African-American gangs, and White Power/Aryan gangs are discussed. Particular attention is paid to Asian gangs, their criminal activities, and, specifically, their use of their own cultural norms and values in order to perpetrate home invasions – violent robberies peculiar to Asian gangs.
The near group theory states: “Gangs vary with regard to their degree of organization.” Depending on that organizational factor, a gangster may be a core player or a marginal or peripheral entity. Within this theory are six identified basic gang roles and their characteristics. Yablonsky describes concepts such as imperfect self-defense and the suicidal tendencies of gangsters, and Wolfgang’s widely accepted theory of “victim precipitated homicide” is broadened to become “victim precipitated violence” within the context of gangs.
Of special value to prosecutors and defense attorneys is Chapter 7, “The Viewpoint of the Prosecutor,” which is a discussion and analysis of trying a gang case by L.A. County Prosecutor Alan Jackson. This chapter includes invaluable appendices A (the California gang enhancement statute), B (sample voir dire questions for a gang case), and C (sample direct examination questions for qualifying a “gang expert” witness).
The book’s own Appendix A is a synopsis of 50 cases that Yablonsky has analyzed and evaluated for the purpose of court work. Appendix B is a listing of many (not all) states that provide for gang enhancement statutes in sentencing.
By understanding the dynamics underpinning gangs and gangsters, Yablonsky seeks to achieve more fair, just, reasoned, and coherent sentencing in gang cases. In short, this book is an in-depth look at what a gang is, who is joining a gang, and why he or she is joining.
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