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Vol. 73, No. 2, February
2000 |
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.
Ted Schneyer is Milton O. Riepe Professor
of Law at the University of Arizona, Tucson. He teaches and writes
on legal ethics and the regulation of the bar. Prof. Schneyer
taught at the U.W. Law School from 1972-1986.
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.
Curt Pawlisch, U.W. 1994, is an associate
at Cullen, Weston, Pines & Bach, Madison. He formerly clerked
for Wisconsin Court of Appeals Judge Paul Gartzke.
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.
Donna M. Jones, U.W. 1978, is a former
member of the State Bar Board of Governors and a member of the
Participation of Women in the Bar Committee. She is a writer
and consultant currently residing in Atlanta, Ga.
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