Electric Review

Culture & Criticism From the Far Distant Realms

Law & Legal Studies

New Releases from Cengage

New Releases from McGraw-Hill

New Releases from Thomson-Delmar

CRIMINAL LAW & PROCEDURE. Daniel Hall. Cengage Learning.

Cover courtesy of Cengage.

The O.J. Simpson saga. Judge Judy. Law & Order. The public has an insatiable appetite for court dramas. Perhaps it’s this early exposure to true crime themes on television that eventually comes to whet the appetite of students, compelling them to pursue careers in criminal law. Daniel Hall’s Criminal Law & Procedure, now in its seventh edition, offers a outstanding introductory review of the field, examining every aspect of what the student will encounter in the professional setting. What is unique about Hall’s text is found in the comprehensive tone he adopts to present the material, with  cutting-edge dissection of the elements of both law and procedure. In choosing this path, Hall is showing the student just what is expected of the practitioner who takes a career in the field. Specifically, an introduction to the legal system moves into crisp analysis of criminal law, including the concept of Mens Rea. Crimes against the person, the public and property are also explored, before the text moves into an exploration of criminal procedure and the constitution. One of the centerpieces of Criminal Law & Procedure is found in Hall’s summary of searches, seizures, warrants and arrests. Students will likely find this material immediately relevant as they read the narrative in relation to the changing landscape of their own lives. Inclusion of recent phenomenons like child pornography, cyber-crimes, terrorism and treason give this edition a particular relevance as we chart the evolution of the world through our compendium of criminal laws.

Of Related Interest

THE LAW OF CONTRACTS & THE UNIFORM COMMERCIAL CODE. Pamela Tepper. Third edition. Cengage Learning.

Cover courtesy of Cengage.

Like it or not, pretty much every aspect of our lives is subject to a binding and enforceable contract. It’s the universal way that business works. And that’s just what Tepper’s text sets out to show the student reader, doing so in an exemplary way that is both accessible and interesting. Tepper makes a historically “dry” area of study compelling by using real case studies to document how contracts impact the way we  interact with each other. Expert use of chapter summaries and review questions test the reader as he encounters the material in an effort to promote permanent retention.

INTELLECTUAL PROPERTY: THE LAW OF TRADEMARKS, COPYRIGHTS, PATENTS, AND TRADE SECRETS. Deborah Bouchoux. Cengage. 5th Edition.

Cover courtesy of Cengage.

The 5th edition of Bouchoux’s Intellectual Property has just been released, and it still serves as the benchmark undergraduate teaching resource in this often overlooked area of law. Nonetheless, just because it’s not as sexy a sub-specialty as criminal law or consumer-based civil law, the way that jurisprudence applies to the property of the mind is continually expanding.  In turn, it’s now become of paramount importance for paralegals and law office staff to understand their role in a practice dedicated to enforcing trademarks, copyrights, patents and trade secrets. Here, Bouchoux presents a brilliantly conceived primer on Intellectual Property, dissecting each area of study with a precise and layered understanding. As noted in the subtitle of the text,  vast ground is covered, with expert analysis of subjects like  International Copyright Law, Copyright Infringement, the foundations of Patent Law and Patent Infringement.  As she moves thorough the grand labyrinth of Intellectual Property law, Bouchoux carefully provides discussion of both the relevant law and recent developments, cutting to the core of the data without wasted or unnecessary verbiage. It is not uncommon for attorneys and legal writers to struggle with presentation. Basically, many lawyers write for themselves first; as such, the audience is often ignored. And this foible can often spell death to any teaching text. However, Bouchoux excels at writing for the student and she does a notable job at applying these intricate legal concepts to the paralegal’s desk. Accordingly, the result is a text that strives to enter into a discussion with the reader – teaching students to analyze the data and then implement their understanding to the relevant legal principles. Case Illustrations and Case Study Activities close each chapter and promote true mastery of the material. A well-reasoned glossary ends the text.

Recommended as a front-line course text in Paralegal programs with dedicated Intellectual Property courses.

Also of Note From the Cengage Paralegal Shelf

THE LITIGATION PARALEGAL: A SYSTEMS APPROACH. James McCord. Pamela Tepper. Cengage. 6th Edition.

The Litigation Paralegal provides a nuts-and-bolts overview of all phases of the litigation process as it relates to paralegal positions; of particular note is the authors’ analysis of the challenges that rise from electronic discovery. The writing and presentation stand-out, rendering this a perfect fit not only for the classroom, but also for the general reference shelf of every law office.

ESSENTIALS OF CONTRACT LAW. Martin A. Frey. 2nd Edition.

Contracts is often regarded as a tired and dry part of the legal curriculum. But Frey’s prose is both accessible and digestible as he is able to transfer his expertise in the field to the novice reader.

by John Aiello

LITIGATION TRIAL PRACTICE, SIXTH EDITION. William M. Hart. Roderick D. Blanchard. Thomson-Delmar Learning.

This text is now in its Sixth Edition and, after even a cursory reading, it’s easy to see why. Here, Hart and Blanchard present a full overview of the litigation process, with an emphasis on the Federal Rules of Civil Procedure — working in a systematic manner, providing complete examples of each of the documents customarily dealt with in the trial process (such as answers, interrogatories and motions, with review of the format required for each document). In addition, the authors offer examples of myriad form letters; a list of key terms augmenting each chapter; and useful guides called “Technology Notes.” For example, the Notes for a chapter on medical examinations and records list various web sites where the practitioner can obtain on-line assistance focused on pertinent medical issues. Hart and Blanchard also provide an insert entitled “Cite-Mate” written by Deborah Bouchoux which sets forth an invaluable citation reference for busy practitioners and their aides. In the real world, such assistance is invaluable – saving attorneys untold time which then can be used for more pressing assignments such a preparing for trial. Although Hart and Blanchard state that the text is intended to prepare paralegal students to work with lawyers, the breadth of information and the manner in which it is presented makes this an valuable reference guide for the whole of the legal community (including budding paralegals, law students, and young lawyers whose hands-on litigation training was either markedly limited or all-together-ignored by law school faculty).

In sum, this well-organized and well-designed text should be in use in law school procedure courses as a supporting class manual. It is further recommended to advanced paralegal students who will be greatly benefited by the practical information it collects.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

LABOR LAW AND EMPLOYMENT. VICTORIA E. ULLMANN. Thomson-Delmar Learning.

In the corporate workplace, the threat of litigation remains a major concern – any mistake by a supervisor in managing his staff often results in a costly lawsuit (made even worse by Defendant’s attorneys’ fees and bad PR). So what can businesses and employers do to stem the tide of labor-based litigation? Demand that the Human Resources Department get current with the law – and fast. In Labor Law, Ullmann (an experienced and well-regarded attorney) has drafted a textbook that cuts to the core of the subject, taking students through the terrain of Employment Law with clarity and precision. Rather than create a one-dimensional text for the paralegal student, Ullmann has instead built a book that is also relevant to advanced business management students (as well as to mid-level managers in all segments of the business world). It is obvious at page one that Ullmann is a tremendous legal writer, and she never wavers from her mission – which is to give accurate and practical meaning to the ultra-complicated web of legal standards that govern labor in the United States. Accordingly, the author includes analysis of the Federal System; at-will employment (which has become an increasingly prickly area); implied contracts; worker’s compensation; drug testing; infliction of emotional distress; the Fair Labor Standards Act; statues governing discrimination; reasonable accommodation and disability; the procedural framework of the Equal Employment Opportunity Commission; erudite analysis of McDonnell-Douglas; and a review of ERISA. Throughout, Ullmann presents summary of the applicable or governing case law within the text of her analysis, thus allowing readers to digest ‘the law’ in relation to the author’s extrapolation. In turn, students are given every opportunity to review key points of information and then apply it to the context of the law in the manner that the Courts do (a method that shows the reader how the legal process works beyond the confines of the classroom).

This text is recommended as a primary teaching text in any paralegal course that is focused on Employment Law. Further recommended as a supporting class text for Business Administration courses based in Human-Resource topics. Finally, Labor Law should be considered as an in-office reference by Human Resource Directors who hold positions in companies where they are in effect the ‘first-line of defense’ charged with diffusing potential legal problems before they reach an actionable stage.

Of Related Interest

MEDICAL MALPRACTICE. Law and Litigation. Beth Walston-Dunham. Thomson-Delmar Learning.

Another smoldering spot for attorneys and their staffs comes via the realm of medical malpractice, as changes in the legal landscape have altered how these cases are litigated. In this text, Walston-Dunham first reviews the history of medical malpractice in America before moving into a step-by-step analysis of the typical med-malpractice case. Walston-Dunham’s historical overview provides a nice segue into the meat of the book, which is looking at the different forms medical malpractice takes and the ways that attorneys evaluate and litigate such claims. The author’s “Anatomy of a Lawsuit” is a perfect tool for the classroom in that it effectively dissects the complexities of the courtroom for the student, cutting the material into neat ‘bite-sized’ chunks that promote reader comprehension. However, the value of this text is in the way that Walston-Dunham presents the case from both the Plaintiff’s and Defendant’s perspective, demonstrating to the student how the same fact situation can be manipulated as each side puts their ‘spin’ on an event. Practically, this demonstrates to students how much a forum of debate the practice of the law really is, further demonstrating that success in this arena requires acute factual analysis in addition to the ability to move a jury to an understanding of complex legal and scientific concepts. Walston-Dunham has done an admirable job in both the writing and organizing of this text, setting elements of theory against typical ‘real world’ situations in order to immediately test a student’s ability to apply what they have just learned.

Medical Malpractice is recommended as a primary teaching text in paralegal programs surveying the litigation process in Tort and professional negligence claims. Further recommended as an in-office reference for practicing paralegals, serving as a compact review of key information.

An Interview With Legal Writer Beth Walston-Dunham

Examining the landscape of the law, what changes have altered how attorneys presently assess and litigate medical malpractice cases?

Over the last 10-20 years, there have been dramatic changes in the legal profession concerning medical malpractice cases. For one, things are a lot more competitive – from a marketing standpoint, attorneys must be able to litigate these kinds of cases, yet they also must be selective in evaluating them, because of restrictions on recovery and the penalties that are imposed on lawyers who file frivolous lawsuits. Now lawyers must approach medical malpractice claims from a practical business-perspective rather than on a purely emotional level, which used to be common place.

In terms of medical malpractice litigation, what particular challenges are presented for a trial lawyer and his staff as they enter the courtroom?

Evidence is the key. But in these kinds of cases, evidence can be difficult to acquire, especially if you’re the Plaintiff. The Defense and its employees are usually in control of all the evidence and of many of the witnesses. Obviously, this can be problematic. But, it should be remembered that this control only goes as far as the loyalty of the employees. Medical malpractice claims are not like a car accident, where you can visit the scene and interview witnesses who are not directly connected with the case. Instead, most of the witnesses in medical malpractice cases are connected to the Defense side, which creates obvious problems.

Do you think lawyers are seeing an increase of actionable medical negligence claims given the growing problem with physician errors during the course of patient treatment?

Absolutely. The large numbers of errors [as reported in recent studies] have caused an increase in litigation. I think the reasons for this are easy to understand: The more patients that doctors see the more likely there are to be errors. And with errors there is the very real potential for lawsuits. Basically, the increased numbers of patients being seen in hospitals produce mistakes and the mistakes often produce litigation. And I think this trend will only increase, given the fact that the Baby-Boomers are all growing older. And as they age, they will need medical care, resulting in even more patients seeking treatment in hospitals over the next 10 years.

Do you see lawsuits as beneficial to keeping the process in check? Do they serve as an effective deterrent against physician negligence?

I don’t think the goal has ever been for lawsuits to deter recklessness. Instead, the primary goal of the process has been to provide compensation to the injured party. Yet, from a secondary standpoint, it is true that doctors know the potential for litigation is always looming. That’s just a fact of life of their profession. And physicians are aware of it. These suits can take a heavy toll on a doctor, and the attorneys who prosecute these cases should be aware of this fact. A lawyer must remember that you do not jeopardize someone’s career with a lawsuit unless the claims are well-founded.

Do you think that the caps on damages/recovery now in force in many states have colored attorney-perceptions with regard to litigating medical malpractice claims? And are injured parties suffering as a result?

Well, the vast majority of these cases fall into a gray area and Plaintiffs often have little access to evidence. Therefore, it can be hard for them to find a lawyer who will pursue a claim. It’s a very difficult proposition for the lawyers evaluating these cases. The reality of medical malpractice cases is that the cost of prosecution can many times exceed recovery, creating a negative situation for both the attorney and the client. The reality is that damage caps can make many cases impractical to prosecute, ending in a travesty of justice for those people who have been injured but who can’t find lawyers to help them…

by John Aiello

Of Related Interest

ENTERTAINMENT LAW. Jeffery Helewitz. Leah Edwards. Thomson-Delmar Learning.

Another specialty-area within the American Courts comes via the practice of entertainment law. The common image one conjures when the word “entertainment” is blurted is of a high-powered lawyer battling a studio executive for an extra ‘mil’ for his client. Sexy fantasy, but hardly all that common. In actuality, this arena is much like other civil concentrations, dependent on a practitioner’s ability to apply statutory arguments to unique fact structures. Here, Helewitz and Edwards offer a deep glimpse into the nuts-and-bolts aspects of entertainment law. Chapter topics include full review of pertinent Constitutional issues; Federal regulation of intellectual property; contracts; partnerships; the legal structure of the entertainment industry (as related to television, film, theater, records, music publishing, book publishing and sports law). In addition, there is a well-developed chapter on entertainment law and cyberspace. This material is especially relevant given the growth of the internet, which has made information instantly available and instantly open to be copied and re-circulated. The author’s inclusion of this topic serves to stress that the changing landscape of the world and its reliance on technology-driven mediums also alters the way lawyers and their staffs approach a case/client. This text is notable for the effortless way it presents its data: Helewitz and Edwards write with the student in mind, setting important terms off in the margins and providing succinct definitions, emphasizing core-concepts with multiple examples in an attempt to integrate the reader with the text. Too often, legal writers are overly-broad and overly-technical in their presentation, losing less advanced readers along the way. However, Helewitz and Edwards do not fall into such a trap; instead, they realize that their mission is not to write like lawyers, but to teach complicated concepts to a student audience. Accordingly, Entertainment Law meets this mission in workman-like fashion.

This text is recommended as a primary teaching text in paralegal courses devoted to entertainment-law topics.

Aspen Paralegal Studies

Six current texts by Aspen Publishers should catch the eye of instructors at both the community college and University levels, as they delve into core subjects in comprehensive terms, noted for both their breadth and their readability – these books that transfer information to the classroom in a cogent and clearly-honed style.

BASIC BANKRUPTCY FOR PARALEGALS. Sixth Edition. David L. Buchbinder. Aspen Publishers.

Given the current state of the economy, with rampant home foreclosures and millions of defaults on credit cards, personal bankruptcies are only going to multiply.Simply, this is going to be a big area in the nuts-and-bolts practice of the law and one that will necessitate that paralegals have a keen understanding of changes that have taken place in the Bankruptcy Code following the Bankruptcy Bill of 2005. Accordingly, Buchbinder does an exemplary job in creating a text that gives the paralegal all the information they need to know to adequately serve clients, with sharp delineation of the paralegal’s role in the process, in addition to review of how changes in the Bankruptcy Bill have altered filing requirements. Further, summaries of the law, relevant Supreme Court cases, an updated Forms Manual and an invaluable analysis of “means testing” come together to make this one of the most exhaustive texts of its kind.

by John Aiello

BASIC CONTRACT LAW FOR PARALEGALS. Fifth Edition. Jeffery A. Helewitz. Aspen Publishers.

The contract is the cornerstone of the law, and one of the areas that gives fledgling students the most problems. Here, Helewitz has written manual that addresses many of the gray areas, presenting readers with a fundamental platform on which to begin this vital area of study. The text begins with an incisive overview of the basic contract and then moves into its elements (offer; acceptance; consideration) before delving into more complex subjects, such as The Uniform Commercial CodeThird Party Contacts and the Discharge of Obligations. The chapter on how to draft a standard contract comprises the ‘meat’ of the text from a teaching standpoint, as instructors will be hard pressed to make these concepts any more clear than what Helewitz has done here. Also note the summary of new cases and sample contracts that augment key points of the narrative.

by John Aiello

Of Related Interest

UNDERSTANDING, CREATING, AND IMPLEMENTING CONTRACTS. Laurel A. Vietzen. Aspen Publishers. 

The Vietzen text differs from Helewitz’s treatise in that it serves as an activities-based manual meant to challenge the student’s understanding of key concepts by creating assignments that mirror the kind of work they will encounter in a law office. Topics of coverage include Invalid AssentCapacitythe Statute of Frauds and a well-realized chapter on What is a Contract? that forces the student-mind to sink into itself and use its analytical abilities – the idea here to think like a lawyer and then prove yourself on paper by showing us what you know. Instructors should consider using this in tandem with Helewitz’s Basic Contract Law in order to cover all four-corners of the subject area.

by John Aiello

WILLS, TRUSTS AND ESTATES. Essential Tools for the New York Paralegal. Ilene S. Cooper. Aspen Publishers. 

This treatise on Estate Law for the paralegal is regional in focus and limited to New York. Here, the New York-based instructor will find everything they need to effectively teach a course on wills, trusts and estates. Topics of coverage include the Probate of WillsIntestate AdministrationManaging Contested Probate ProceedingsJoint Wills and Mutual Wills, TrustsGift Transactions and the Elective Share Statute. Aimed at the practicing paralegal, Cooper outfits this text with all the information they will need to administer an estate from beginning to end. Insofar as the practice of the law, estate work is one of the most complex of all to manage, with an amalgamation of rules and procedures that must be adhered to. Accordingly, Cooper is careful to cover these procedural specifics while providing an effective summary of basic terminology and case law (as well as sample forms). As students read through the layers of this material, they are introduced to broad-ranging topics meant to stress one central fact: When an attorney or paralegal administer an estate they have assumed a fiduciary duty to their client, its many prongs and tentacles requiring ever-so-careful attention.

by John Aiello

THE PROCESS OF LEGAL RESEARCH. Seventh Edition. Christina L. Kunz. Deborah A. Schmedemann. Ann L. Bateson. Matthew P. Downs. Mehmet Konar-Steenberg. Aspen Publishers. 

Both lawyer and paralegal are only as accomplished as their research skills. Bluntly,  students who are not adept at the art of research should reconsider a career in this field, as the entire practice of law is premised on the practitioner’s ability to find answers to complex questions through a variety of reference tools. Here, the authors use a process approach, utilizing “learning aids and memory devices” to teach students how to research their way through any legal question. The best aspects of this text come by way of the authors’ ability to show the connection between research and analysis – showing the student that the practitioner cannot begin to analyze a problem until they have first researched it, summarized the facts, and considered applicable case law. Moreover, Kunz and her co-writers also show that before the research process begins, the paralegal must first assess the problem to determine the best research method/practice to employ that will yield the most detailed information.

by John Aiello

THE STUDY OF THE LAW. A Critical Thinking Approach. Katherine A. Currier. Thomas E. Eimermann. Aspen Publishers.

Entry level paralegal courses would be well-served by this text, which provides a full and complete overview of the legal system, including the structure of the judiciary. Basically, the idea of such a ‘nuts-and-bolts’ text is not to summarize the history of the law, but instead, to teach students the skills they will need to succeed in the field. To succeed in this arena, all lawyers and paralegals must be able to think critically – with this trait augmented by sound standards of reasoning and impeccable writing skills. In sum, the legal professional must employ a disciplined mind that can withstand the rigorous procedural labyrinth of the American courts. And The Study of The Law has been written to help students kick off their journey. Divided into three primary sections (The American Legal SystemFinding and Analyzing the LawSubstantive Law and Legal Ethics) and augmented by sample cases and statutory interpretation, Currier and Eimermann present the definitive introduction to the law (applicable to both paralegals and social science students contemplating a tour through the halls of law school).

See aspenpublishers.com for details.

by John Aiello

The Best of West Law

CALIFORNIA INSURANCE LAW HANDBOOK: A Reference and Guide. John K. DiMungo. Paul E.B. Glad. Thomson-West.

DiMungo and Glad’s 2007 edition of The California Insurance Law Handbook is simply the finest insurance reference text of its kind and should be readily available to every civil practitioner, in addition to any attorney working in ancillary practice areas likely to be impacted by insurance-related issues.

In sum, this guide serves as the pre-eminent summary of California insurance law, reviewing every insurance decision from the California Supreme and Appellate Courts, the U.S. Supreme Court and the Ninth Circuit (with in depth analysis of applicable statutes along and incisive commentary by the authors pertaining to the every-day practice of law).

Major topics of coverage include how the Insurance Commissioner’s Unfair Claims Practice Regulations impact common law bad faith litigation; the appropriate measure of damages for breach of duty to defend cases; relief under ERISA for unfair claims practices; laws regarding rates, binders, and interim contracts; sales and underwriting practices; policy cancellation, renewals, lapse, and reinstatement; automobile insurance issues including first-party coverage and uninsured/underinsured motorist coverage; liability topics regarding personal injury, premises liability, intentional and criminal acts, construction disputes, employment liability, and environmental claims; in depth exploration of the covenant of good faith and fair dealing (in addition to bad faith and unfair claims practice regulations); and issues regarding group health, disability and  life, insurance products.

Two issues addressed in this edition are especially worthy of practitioner review.

First, the authors note that California’s Unruh Act, Civil Code section 51, unlike the federal Americans with Disabilities Act, does not require a plaintiff to show that he or she is regarded as having a present limitation of a major life activity.  Therefore, given this distinction, underwriting discrimination claims which may fail under the federal statute can still be effectively pursued under the Unruh Act.  See: Goldman v.  Standard Ins. Co., 341 F.3d. 1023 (9th Cir. 2003) Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 ((9th Cir. 2000). Readers should realize this is of significant importance, since the Unruh Act provides for the possibility of treble damages and the recovery of attorneys fees. See: Civil Code section 52 (a).

Second, the authors note that in 2005, the California Supreme Court ruled that certain types of balance billing were illegal under state law. Specifically, the Court ruled in Parnell v. Adventist Healthcare SystemWest, 35 Cal.4th 595 (2005), that a hospital which receives payment from a PPO provider pursuant to a “payment in full” agreement is not entitled to assert a lien against the patient’s recovery from a third party tortfeasor for the difference between the rate negotiated under the provider agreement and the ‘reasonable and customary value’ of the patient’s services. Given this important ruling, Counsel will want to ensure that both hospital billing departments and claims adjusters are fully complying with the Parnell ruling.

As previously noted, DiMungo and Glad’s California Insurance Law Handbook is the most important resource of its kind in the field, and this volume should be on the desk of any attorney who takes insurance-related cases. Simply, it is the authoritative voice in this ever-evolving practice area.

by Frank Aiello

FEDERAL EVIDENCE. Third Edition. Christopher B. Mueller. Laird C. Kirkpatrick Thomson-West.

The Federal Rules are indeed voluminous, primarily due to the fact that 42 of the 50 states have adopted them – with only minor changes.  Here, the authors (who continue to modify a work from 1975 by Professor Mueller and the late David Louisell) present each Federal Rule, together with analysis of pertinent case authority and recent legislation.

However, as the authors point out, the Rules themselves have been ever-changing. To evince their position, Mueller and Kirkpatrick identify as examples the area of sexual crimes (Rule 412 — the rape shield provision; Rules 413-415 — prior acts by persons charged with sexual assault or child molestation), further analyzing the admissibility of expert testimony and the opinion-testimony of non-scientists serving as expert witnesses. (See: “The extensive revisions to Rule 702 as an adjustment to the virtual tsunami of cases arising under the Daubert/KumhoTire standard.”).

Another example of such changes in the law relates to admissibility of testimonial evidence and the issues arising from the Supreme Court’s landmark decision in Crawford v. Washington 541 U.S. 36 (2004) (holding that testimonial statements offered by the government violated the Confrontation Clause of the Sixth Amendment). The impact of Crawford on testimonial statements by child victims and forensic lab reports remains untested: and the authors write:

“The Confrontation Clause does not block the use of statements by declarants who can be cross-examined, either before trial or during trial, and the importance of this ‘exception’ invites a new examination of the question what an ‘adequate opportunity’ to cross-examine really means.”

In sum, this titles serves as a superb and comprehensive five volume resource collecting the laws that make up our compendium of Federal evidence: Without a doubt,  this is the most comprehensive reference of its kind for both the Federal trial and appellate practitioner (as the treatise itself has been cited as authority in appellate courts).

by Frank Aiello

NONPROFIT CORPORATION FORMS HANDBOOK. 2007 Edition. Barbara L. Kirschten. Thomson-West.

Nonprofit corporations are subsidized by the taxpayer through a wide variety of tax exemptions offered by federal and state government. Here, Barbara Kirschten has created a text that provides a concise listing of the registration, reporting and examination requirements for such nonprofit entities, together with the statutory forms required to maintain those exemptions.

In addition to sample forms required by the Internal Revenue Service, Kirschten’s text also includes sample forms and reporting requirements for nonprofit corporations specifically operating in California, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, New York, Pennsylvania, Texas and Virginia.

The reporting requirements for such corporations are indeed voluminous, and thankfully Kirschten lists sample forms for each statutory requirement as a means to educate her readers on the complexities of the process.

For example, California allows a specific “welfare exemption” – i.e. – an exemption of real property used exclusively for religious, hospital, charitable, or scientific purposes. However, in order to qualify and claim this exemption, A Claim for Welfare Exemption (Form BOE-267) must be completed together with a certification or declaration executed under penalty of perjury and filed with the County Assessor.  Once the exemption has been allowed, the nonprofit entity must continue to file an annual form establishing the corporation’s continuing right to the exemption.

In this regard, Kirschten’s text can be used by non-profits as a convenient checklist to confirm that applicable statutory requirements are being met in a timely manner.

In addition, the Nonprofit Corporation Forms Handbook also serves another purpose –acting as a roadmap that winds its way through the labyrinth of public documents available to attorneys who might be investigating those charitable entities who abuse their status in order to operate as tax-exempt holding companies. In sum, this compendium of statutory forms provides an invaluable source of information as to how such companies operate and just who profits from its complicated web of transactions.

This handbook is recommended to the in-house counsel of all non-profit corporations, providing salient discussion of the forms required to both apply for and maintain non-profit status. In addition, it is highly recommended to attorneys in the civil realm looking for an easily digestible crash-course on the statutory forms required to be filed by all non-profit entities.

by Frank Aiello

CALIFORNIA CIVIL COURTROOM HANDBOOK AND DESKTOP REFERENCE. 2007 Edition. Michael Paul Thomas. Thomson-West.

Michael Paul Thomas’ handbook on Civil Courtroom procedures serves as a superb reference that is probably the most authoritative, yet manageable resource available for the busy attorney juggling multiple case files.

Thomas divides Handbook into an assortment of chapters, beginning with prelitigation issues (such as the exhaustion of administrative remedies, time restrictions, and claims against specific entities), before moving into analysis on selecting the proper forum for the action and determining jurisdiction. In addition, the author provides pertinent direction on preparation of the complaint as step one in the attorney’s role of nursing the case through the courts toward its final resolution.

Handbook proves Thomas to be an excellent legal writer who ensures that each chapter not only contains the most recent case law, but is structured to allow the reader to find applicable statutes and citations without the undue loss of time.

Thomas has come to be known as one of the nation’s best legal talents, and in this text he demonstrates not only a fundamental knowledge of civil law and procedure, but also shows off a keen practical understanding for applying complex legal principles to the courtroom setting.

As any California civil practitioner knows, the practice of litigation is akin to treading a sea of quicksand (especially when in the arena of pretrial discovery, which often takes on a surreal life of its own). Accordingly, Thomas’ chapter on discovery is worth the price of admission alone, further justifying his publisher identification of this text as part of West’s “Expert Series.”

Recommended to all California attorneys as an indispensable desk reference that will shed light on the often complicated labyrinth of Civil Law while cutting down on research time. 

by Frank Aiello

Also Of Note From West Law

FIREARMS LAW DESKBOOK. 2007 Edition.  Stephen P. Halbrook. Thomson-West.

As Stephen P. Halbrook notes in his Appendix of State Firearm Laws, any person in the Commonwealth of Virginia who is 21 years of age or older may apply in writing to the Clerk of the Circuit Court in which the applicant resides for a 5-year permit to carry a concealed handgun. Moreover, the State of Virginia also honors a valid concealed handgun permit issued by another state, providing 1) that the person is at least 21 years old; 2) that the issuance of that permit would not be prohibited in Virginia.

Notwithstanding these guidelines, on April 16, 2007 (as the likely result of the short-sighted policies of the Virginia Tech administration who have established a “gun free zone” on the University campus which expressly prohibits faculty and students with lawfully issued concealed weapons permits from bringing those weapons onto campus), a deranged Seung Hui Cho was able to systematically slaughter 32 of his fellow students like so many ducks in a barrel. In addition, Hui Cho wounded another 25 people others before killing finally himself.

Stephen Halbrook, who wrote this handbook, is an attorney in private practice, with his offices, ironically, in Fairfax, Virginia. Halbrook has been at the forefront of firearm litigation, and he has argued the issue in both federal and state courts and in the United States Supreme Court (in Castillo v. United State, Printz v. United States; and United States v. Thompson/ Center Arms Co).

Accordingly, his writings prove indispensable to understanding the historical basis of the Second Amendment. Specifically, his chapter in the Firearms Law Deskbook on the Right to Bear Arms should be required reading for those Virginia Tech administrators and like-minded gun-control advocates in order to help avoid the possibility that college campuses will be reborn as abbatoirs in the future.

by Frank Aiello

CALIFORNIA MOTIONS TO TERMINATE CIVIL CASES. 2007 Edition. Donna Bader. Thomson-West.

The preface to this 2007 edition of California Motions to Terminate Civil Cases refers to the text as a “war manual,” a phrase which will be easily understood by any experienced California civil practitioner. In turn, Bader’s text serves as an excellent reference tool showcasing a wide assortment of recent case citations, in addition to a civil motion manual complete with handy format templates. This text will prove indispensable to busy lawyers who will benefit handsomely from the author’s inclusion of the “Suggested Motion Text” and “Key Supporting Citations” which are found in every chapter. Byway of these features, Bader has already provided both statutory excerpts and recent citations and pre-summarized many case points which can be easily incorporated into a brief or motion. Finally, the text comes complete with companion CD-ROM materials meant to keep step with the tech-driven landscape of the 21st century law office.

by Frank Aiello

OREGON LAW & PRACTICE: Volume 6 Civil Procedure (Civil Rules);

Volume 7, Civil Procedure (Civil Statutes); Volume 8 (Forms, Tables, Index). Leroy J. Tornquist. Thomson-West.

Volumes 6, 7 and 8 of this series present a systematic approach to building an understanding of Oregon civil procedure. Volumes 6 and 7 are organized by referencing the applicable rule or statute (depending on which volume is in use), with the author further offering in depth commentary as well as analysis of leading cases. In the course of his treatise, Tornquist also compares the Oregon Civil Rules with their Federal counterpart as a means to bridge State and Federal realms. Volume 8 contains Oregon-specific checklists and forms for complaints, answers, petitions, declarations, notices, affidavits, orders, writs and appeals, in addition to sample fee agreements. As the publisher notes, these three volumes, like the rest of the series, are specifically intended to be integrated with the Westlaw online legal research service, as well as with KeyCite (Westlaw’s citation research service). This feature gives a practitioner the ability to instantly monitor a case, statute or rule in the daily course of his law practice.

by Frank Aiello

H-1B HANDBOOK – 2007 EDITION. Austin T. Fragomen, Jr. Careen Shannon. Daniel Montalvo. Thomson-West Immigration Law Library.

The H-1B nonimmigrant category allows entry into the United States for foreign workers in select “specialty occupations,” as well as fashion models “of distinguished merit and ability.”  The annual cap for entry is currently set at 65,000 per year, even though legislation was introduced in March 2007 to specifically increase that number to 115,000. Given the present uncertainty of immigration reform and pending legislation(in addition to the complicated labyrinth of regulations relating to the H-1B category and the impact of  the H-1B Visa Reform Act of 2004 which “effectively raises the annual cap on H-1B admissions by 20,000 allocated entirely to foreign nationals who have earned a master’s or higher degree from a U.S. institution of higher education”), this text has become a virtual must-have roadmap for immigration attorneys and global companies who wish to employ foreign professionals in the United States.

by Frank Aiello

Of Related Interest

FEDERAL IMMIGRATION LAWS AND REGULATIONS – 2007 EDITION. Thomson-West.

Due to the failure of Congress to pass any species of immigration reform, the current schematic of laws will likely be in place until a change in administration occurs. This text contains relevant portions of Title 8 of the United States Code relating to Aliens and Nationality, as well as applicable federal statutes spanning the First Session of the 110th Congress (in addition to relevant portions of the Code of Federal Regulations through April 10, 2007). The federal statutes follow the U.S. Code, and this reference contains historical and statutory notes and law review commentaries, as well as reference to West’s key number digest system and related West’s practice texts.

Designed for all immigration specialists, meant to serve as an in office-reference that provides the most up-to-date information on this ever-growing area of focus.

by Frank Aiello

GLOBAL BUSINESS IMMIGRATION HANDBOOK. Fragomen Global. Nancy H. Morowitz, Executive Editor. Thomson-West.

Fragomen Global is a global immigration services group that is responsible for creating this text, which serves as a key component of Thomson West’s comprehensive Immigration Law Library. This particular treatise has been designed to provide immediate answers to immigration questions encountered by global entities, and it outlines the immigration policies of the fifteen countries which account for the majority of business immigration (including Canada, China France, Germany, Hong Kong, Japan, Russia and the United States). Accordingly, each of these country’s policies and procedures is discussed in a separate chapter which offers analysis of the types of stay available to business visitors, students and trainees; myriad employment categories; the obligations of foreign nationals in-country; procedures to be followed for extensions of stay and possible changes in status; and detailed exploration of permanent residence and naturalization procedures.  In addition, the special rules applicable to those countries allowing stays for the family members of foreign nationals are also discussed in detail. Readers will note that each chapter features appendices which contain the primary immigration forms for each country.

Like the title in the preceding review, this handbook proves indispensable for all attorneys with immigration-based practices.

See Thomson-West to order or to obtain more information.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

CRIMINAL EVIDENCE, Principles and Cases.6th Edition. Thomas J. Gardner. Terry M. Anderson. Thomson-Wadsworth.

The Sixth Edition to this excellent text updates material from earlier versions by including the latest issues in the study of criminal evidence. As an example, the authors examine the current laws relating to the news reporter’s privilege not to reveal confidential sources (subject presented in the context of the imprisonment of New York Times reporter Judith Miller, who refused to reveal the source who disclosed the identity of undercover CIA agent Valerie Plaine). In this case, the Court of Appeals refused to carve out a reporter’s privilege under Federal law, holding that the First Amendment does not allow a reporter to refuse to divulge the identity of a confidential source to a Federal Grand Jury.

In addition, the authors also present an updated overview of the admissibility of scientific evidence, including DNA genetic profiling and forensic entomology. One case examined by the authors is particularly noteworthy. In the case of In re Jensen, the Massachusetts Supreme Court held that a defendant charged with rape has the right to compel another person, not charged with the offense, to provide a blood sample for DNA analysis. The Court held that a person not charged with a crime could not assert a Fourth Amendment defense as long as a private party and not the state was demanding the submission of the DNA sample.

The authors’ review of the current laws of evidence relating to privacy and electronic surveillance is also quite timely in light of the enactment of the USA Patriot Act which came on the heels of thee events of September 11, 2001.

Especially noteworthy – and certainly worrisome – are the Patriot Act changes to the Computer Fraud and Abuse Act and Stored Communications Act which allow the government access to a citizen’s telephone records, e-mail files s and voice-mail records.Just as troubling are amendments made by the Patriot Act that allow Internet Service Providers to “volunteer” information about a subscriber’s communications (as well as the specific authorization in the Act that grants law enforcement the authority to use trap and trace devices in large scale investigations, in effect, a grant of power to scrutinize e-mails without the need to seek multiple court orders).

And after reviewing the authors’ chapter on obtaining evidence from computers or via search warrants, it is readily apparent that, at least insofar as the courts and Congress are concerned, one’s expectation of privacy has been markedly eroded.

Recommended as a primary text in all Administration of Justice courses examining the rules of evidence in criminal proceedings.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

Of Related Interest from Thomson-Wadsworth

CAREERS IN CRIMINAL JUSTICE, From Internship to Promotion. 5th Edition. Thomson-Wadsworth.

Now in its Fifth Edition, this text continues to provide students seeking careers in law enforcement’s private security sector (in addition to the courts and corrections) with a practical overview of job opportunities and basic competency requirements for each area of study. The editors also supply readers with a well-formed “insider’s view” which outlines ‘just what it takes’ to sell oneself as a successful job candidate. The editors further include tables/graphics that show various salary ranges that one can expect in different segments of the criminal justice arena, a feature that allows students to quickly compare pay scales and ancillary benefits.Finally, résumé evaluation checklists and sample résumés are included as a means to acclimate students to the specialized demands of the field.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

HANDBOOK OF SELECTED SUPREME COURT CASES. 3rd Edition. Handbook supplement prepared by Roger Leroy Mille. Thomson -Wadsworth.

This handbook is intended to supplement the text Criminal Justice in Action, by Miller and Larry K. Gaines. It contains a summary of selected United States Supreme Court cases which have been previously analyzed by Miller and Gaines in their reader. Each case is divided into five parts, including the case citation as it appears on WESTLAW (the computerized case reporting service from the West Group); a short review of the subject matter; a case summary taken directly from WESTLAW; selected case excerpts; and the actual Court decision.

by Frank Aiello

THE FBI CAREER GUIDE. Joseph W. Koletar. American Management Association.

Do you have a degree in law, accounting, a physical science, computer science or engineering? Or perhaps a few years of experience in military intelligence?

If the answer to this question is yes, then you might want to read The FBI Career Guide by former FBI Section Chief Joseph W. Koletar.

In his text, Koletar tells in a style similar to an inter-office staff memo just why you might want to become a G-Man. After identifying the structure and staffing of the Bureau in his first two chapters, Koletar goes into the real nuts-and-bolts-reasons for joining – pay and benefits.

As Koletar notes in his opening paragraph to Chapter three, the FBI is an “excepted service within the executive branch.” This means that it is not bound by the same personnel regulations governing other branches of government.

At this point, Koletar runs through a laundry list of benefits made available to agents and their families, including generous retirement benefits; investment vehicles; relocation benefits; health care; child care; Federal life insurance benefits; medical benefits under the Federal Employees Compensation act; and last but not least, specific tax benefits (which “have the effect of reducing not only their federal, Social Security and Medicare taxes, but may also reduce state, city or county taxes” ).

Insofar as the retirement perks, newly-hired agents can retire when they reach age 50, with 20 years of federal civilian law enforcement experience, or they can step down when they amass 25 years of federal civilian law-enforcement experience regardless of age; it is mandatory that all agents retire at age 57.

Obviously, these kinds of benefits are rarely – if ever – available to individuals outside of government. In the Bureau, salary at GS-10step 1, begins at $48,818 for a new agent.Koletar notes that agents who do not move into management ranks usually end their careers in the tenth step of GS-13, earning $101, 413.00. Agents usually reach this GS-13 level after only seven years of service.

In sum, Koletar gives college graduates who might be considering a career in the FBI with a tightly written road-map that reviews the qualifications necessary for the job, providing this well-polished snapshot of a line of work that many often wonder about.

Koletar’s text is recommended to all college-level counselors, serving as a career-planning guide for students about to graduate from Administration of Justice other law enforcement programs. Further recommended to libraries in both the private sector and at the college-level as a general reference text.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

INTRODUCTION TO BANKRUPTCY LAW. Fifth Edition. Martin A. Frey. Phyllis Hurley Frey. Sidney K. Swinson. Thomson-Delmar Learning.

Now its 5th edition, this text is meant to provide the practicing Paralegal with salient information on current Bankruptcy procedures. In terms of changes to traditional law, the recent overhaul of the Bankruptcy Code redefining the stepsconsumers must go through before they will be allowed towrite off a debt has literally changed our perceptions of personal finance.

No longer does the safety valve of Bankruptcy Court automatically exist for those caught between the proverbial ‘rock and a hard place.’ Now, consumers have to be more responsible with their plastic cards and other forms of impulse or luxury-based spending. In turn, those operating within the legal arena need to update their education and reconnect themselves with aspects of the Bankruptcy Code.

Introduction To Bankruptcy by Martin Frey (University of Tulsa College of Law) and two co-writers is the first text we have seen to address material changes in the Bankruptcy Code (following ratification of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005). Here, the authors do an exemplary job of discussing applicable changes in the law and modifications to court rules while simultaneously up-dating procedural forms and paths of strategy — painting this full picture of what it takes to set a Bankruptcy case in motion through the judicial system.

Frey and co-writers have done a fine job with the organization of this textbook, outlining the history of Bankruptcy law before moving directly into myriad legal elements, giving special consideration to how an individual’s specific circumstances dictatehis ability to dischargea debt. The authors have also included a series of sample Bankruptcy scenarios that analyze cases from inception through the point of resolution. To this end, myriad types of Bankruptcy filings are discussed with inclusion of ‘flow charts’ which provide a ‘visual aid’ so that the student can actually see the different paths a Bankruptcy filing will often take.

In addition to these charts (and the updated forms), Frey and co-authors offer an interactive approach to the learning experience, posing problems that students are meant to jump into and analyze. The lesson here?: To show that assisting clients with legal issues requires precise attention to detail and the ability to dissect a ‘theory’ and then quickly apply it to the practical world.

Chapters routinely build on each other to create a seamless read (“The Cast Of Characters” chapter moving into an exploration of the “Bankruptcy Judge And Staff” serves to show that one issue is always married to next in the study of the law). Further to its breadth, Introduction To Bankruptcy stands out for its writing: Clear-cut and sharp with focus, this book is meant to impart complicated legal theories to a student audience so that the information can be retained for future application.

The authors have designed this text for the classroom, and more specifically, for the Paralegal student. Accordingly, it is recommended to college-level instructors who teach Paralegal courses which focus on Bankruptcy Law. Additionally, it would prove useful to the practicing Paralegal in an office setting: the up-to-date forms and review of changes in the code render this a title that has lasting and long-term value.

by John Aiello

CALCRIM JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS. January 2006 EditionThomson-West.

The tradition that first began with the CALJIC Standard Jury Instructions has blossomed into this innovative approach we now find in the CALCRIM Criminal Jury Instructions. Designed by a special task force of the California Judicial Council, the authors’ driving focus was to “write instructions that are both legally accurate and understandable to the average juror.”

In drafting this manual, the committee premised its work on the belief that “sound communication takes into account the audience to which it is addressed,” in turn recognizing the vital task that a jury performs and the substantial reliance placed upon their service by courts, lawyers, and litigants. Simply, in order for a jury to apply the law fairly, understandability of the appropriate legal principles becomes absolutely critical.

The CALCRIM Instructions are now approved by the Judicial Council as the official instructions for use in the State of California. California Rule of Court No. 855 (a) “strongly encourages their use.” However, since this is merely a recommendation and not mandatory, many trial courts remain hesitant to abandon the security of CALJIC. Yet, by all accounts, the Judicial Council has successfully accomplished its goal of creating a set of user-friendly, easy-to-understand jury instructions.

After many years of offering ADR services, I recently returned to an active criminal law practice, and I have found CALCRIM helpful in combining the preciseness of the CALJIC black letter law statements in a paraphrased form that sheds the heaviness of the more specialized statutory and case law language.

Here, the writers have provided users withmore complete explanations of myriad legal principles in a checklist form, this approach meant to easily guide the jury through its task of analyzing the components of the individual instruction before fitting them into the particular factual setting.

For example, the CALCRIM instruction for misdemeanor Driving Under The Influence begins where CALJIC does, listing the two elements that create the statutory offense (defendant drove a vehicle and when he/she drove, the defendant was under the influence), but then significantly departs from CALJIC’s style in two major ways.

First, unlike CALJIC, which offers a separate instruction regarding evaluating the manner in which the vehicle was driven, CALCRIM includes this as part of the primary instruction, something which immediately assists the jury in coming to understand that the way a car was driven is not enough in itself to find a person to be under the influence (but only one factor to be considered in light of all of the other circumstances). As a result, CALCRIM immediately links the term “under the influence” to a concrete piece of evidence, thereby offering the jury a specific way to understand what might otherwise remain just a vague legal term.

Second, the CALCRIM Instruction offers yet another evidentiary method by which to give substance and reality to the term “under the influence.” It informs the jury that if the prosecution has proved beyond a reasonable doubt that the defendant’s blood alcohol was .08 % or more at the time of the chemical analysis, it may (but is not required to) conclude that defendant was under the influence at the time of the alleged offense. Finally, the instruction cautions the jury that, in evaluating the test results, it can take into account whether or not the person administering the test followed certain specific state regulations.

Consequently, the jury is given understandable evidentiary bases to help them reach a meaningful conclusion as to whether a defendant should be adjudged guilty or innocent on the facts before them. Moreover, the format of the instruction gives counsel a valuable tool in being able to identify and then link key pieces of evidence to a legal principle (which is then reinforced by the actual instruction from the court).

As with CALJIC, the CALCRIM Instructions are in two volumes and follow a similar organization of subject matter. The text of each instruction is followed by Bench Notes, setting forth the instructional duty of the court (as well as relevant lesser-included offenses). The “Authority” Section also lists all pertinent sources for the instruction, including case precedent. Italicized notes in the language of the instruction further serve to alert the reader to necessary modifications for specialized issues.

Criminal law practitioners will find the Bench Notes a particularly valuable resource. Returning to the Driving Under The Influence Instruction as an example, counsel may be facing a situation wherein the statutory blood alcohol presumption may be applied -i.e.- if defendant had a blood alcohol content of .08 % at the time of the chemical analysis, the jury may conclude that defendant was under the influence at the time of driving. The Bench Note alerts counsel that if any evidence exists that defendant was below .08 % (or if the test results fall within the range in which no presumption applies), then the prosecution loses the benefit of the presumption and the Court must remove the language from the instruction.

Accordingly, criminal lawyers now have an officially-endorsed and viable alternative to the more technical and basic language of CALJIC. In addition to presenting lawyers with a vital tool by which to prepare for trial, this manual serves to insure that the jury will be more-easily guided to a clearer understanding of myriad complex legal principles (and thus better able to apply these instructions evenly and effectively).

Recommended for criminal law offices, law libraries, general reference libraries, and as a supplement to general criminal law texts.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

Of Related Interest

CALJIC CALIFORNIA JURY INSTRUCTIONS -CRIMINAL. APRIL 2006 Edition. Thomson-West.

For criminal law practitioners, ready access to a set of Thomson-West CALJIC California Criminal Jury Instructions becomes indispensable, both for research purposes and for trial preparation.

Experienced attorneys often begin their case strategy by reviewing the elements that make up criminal offenses as a practical guide through the sometimes thorny issues presented by unique factual settings (knowing that these key statements of the law will become the standards by which juries will reach their decisions as to guilt and innocence).

Moreover, trial lawyers frequently attempt to fashion special jury instructions to highlight key issues in their cases. Their obstacle is a formidable one, however, since trial courts almost uniformly rely upon the time-tested and appellate-affirmed standard jury instructions set forth in CALJIC.

One criticism of these standard instructions, observes Justice Carol Corrigan, is that, being “based on the language of case law and statutes written by and for a specialized legal audience,” they have, on occasion, become ” impenetrable” to the average juror. This criticism is not only a valid one, but one frequently one shared by both the Bench and the Bar.

The resulting challenge of making this material more understandable to the “average juror” has recently been addressed by the California Judicial Council in its revisions to these standard instructions [see companion review of new CALCRIM Jury Instructions above].

Communication problems notwithstanding, the CALJIC Instructions have been in use for well over 60 years. Moreover, local court rules in many jurisdictions throughout the state mandate their use in all criminal jury trials. As a result, although revised official jury instructions are now available, counsel must continue to be well-versed with not only the content of CALJIC, but also the style, organization, and philosophy underlying their development.

The CALJIC Instructions essentially provide a straightforward, no-frills, basic definition of the applicable law. For example, while each one of us probably has his or her own idea of what precisely created a “reasonable doubt” in our minds in a particular case, CALJIC 2.90 compels that this precise wording be given to every jury:

“It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

The Use Note to CALJIC 2.90 provides insight into why reliance upon such exact language is so highly valued. Noting prior attempts to clarify or improve upon the definition of reasonable doubt, the drafters caution: “It is safer to follow the language of the code section than to struggle for originality where precedent alone should govern.

And therein lies both the beauty and the burden of using CALJIC. While unadorned in their basic, plain, and technical language, the instructions are, nonetheless, crafted with a precise accuracy, calculated to give a jury maximum assistance in discharging its often difficult duty of applying the law to a given set of facts. Next to its longevity, perhaps the best testament to CALJIC is that juries have consistently demonstrated an ability to navigate through the difficulties of language to do their job.

Prepared and designed by the Committee on Standard Jury Instructions of the Los Angeles Superior Court, the CALJIC instructions begin with introductory admonitions and definitions, followed by rules as to evaluating different forms of evidence. At this point, the elements of each crime and defense are thoroughly set out. The two volume manual concludes with instructions to cover such specialized matters as multiple counts or defendants (as well as prior convictions and punishment enhancement issues).

In addition to its actual statement of law, each CALJIC instruction contains a Use Note (prompted by recent appellate decisions) and commentary, including case law supporting use and application of the particular instruction. As a bonus, practitioners should review the wealth of information contained in the Appendix, which includes helpful guides to the giving of sua sponte instructions and lesser included offenses.

The reality is that CALJIC will likely continue as the preferred form of jury instruction for most courts. Other than exchanging originality and creativity for the security of precedent, the legal profession risks little in turning to them for accurate, up-to-date black letter statements of the law.

Accordingly, CALJIC remains the most widely-respected, complete, definitive, and reliable resource available to lawyers — this compendium presenting the essential elements of the substantive crimes that make up the discipline of criminal law.

Recommended for criminal law offices, law libraries, general reference libraries, and as a supplement to general criminal law texts.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

NOLO’S SIMPLE WILL BOOK, 6th Edition, Denis Clifford. Nolo Press.

This text from Nolo Press (now in its sixth edition) serves as an excellent general primer providing the lay reader with an overview (and instructions) on how to prepare a will. Bound together with a CD-Rom and augmented by a superb glossary, the text gives readers the ability to understand the reasons for preparing a will and, if they wish, to personally create either a basic or customized will document.

Simple Will presents vital and new information. As the author explains, residents of California, Idaho, Washington and Wisconsin should be aware that these states each have some form of spousal protection law allowing a surviving spouse to inherit a portion of the deceased spouse’s community or separate property. For example, under California Probate Code section 21610, “if the deceased spouse made an estate plan before marriage and didn’t include the surviving spouse in a will or trust, the surviving spouse can claim all of the community and quasi-community property, as well as a share of the deceased spouse’s separate property.” [chapter 3, page 8.]

But what happens if you move to a state that does not have community property laws? (These so called “common law states” are conveniently listed in chapter 3 at page 8). To this end, Clifford provides a special note of caution:

“When couples move from a community property state to a common law state, each spouse generally retains a one-half interest in the property acquired while they were married in the community property state. However, the courts that have dealt with the problem haven’t been totally consistent. Accordingly, if you have moved from a community property state to a common law state and you and your spouse have any disagreement or confusion as to who owns what, check with a lawyer.”

(Chapter 3, Page 11)

It should be noted that some types of property cannot be left by will. These include joint tenancy and tenancy by the entirety property, property transferred to a living trust (unless the living trust has been terminated), insurance, pension and retirement accounts (such as 401k plans), as long as a beneficiary has been identified, and “pay-on-death” bank accounts. Another form of property which cannot be transferred by will is property held as “community property with right of survivorship.” In certain states —— Arizona, Alaska, California and Nevada and Wisconsin ——a spouse is permitted to hold property in this form of title. As Clifford states: “…in these states, spouses can obtain the benefit of joint tenancy while owning community property. With this form of ownership, a surviving spouse automatically receives a deceased spouse’s share of community property outside of probate.” [chapter 4, page 7]

Clifford is quick to point out that property left by a will is exposed to probate proceedings, and he immediately identifies the drawbacks of probate (namely attorney’s fees and costs). However, as the author asserts, wills are necessary, and the will instrument offers an expedient way to create a quick estate plan which can be refined at a later date. Clifford goes on to cite various probate avoidance methods including living trusts, the holding of assets in joint tenancy, and pay-on-death accounts (note: Clifford explains about living trusts in depth in the Nolo text, Make Your Own Living Trust.)

For example, pay-on-death accounts are a very simple way to avoid probate, especially for those individuals with estates consisting primarily of cash assets; Clifford writes:

“You open a bank account — for example, savings, certificate of deposit, or money market — in your name and add a designation naming a pay-on-death (P.O.D.) beneficiary. You keep complete and exclusive control over the money in the account until your death, at which point any money left in the account belongs to the named beneficiary without any necessity for probate.. If all the money has been withdrawn, the beneficiary gets nothing. If you want to establish this type of account, simply visit your bank and complete the appropriate forms. They’re simple.”

(Chapter 14, page 5)

Clifford further explains the estate tax and the current exemption in a few easily understood pages, with a comprehensive chart of the both the estate tax and gift tax exemption amounts. However, the information also comes with a word of caution:

” . . . the uncertainty over whether the 2010 repeal will be made permanent, means that tax planning for wealthy couples may not be easy over the next few years. Indeed, currently, expert estate planners are not certain about how to engage in long-term estate planning. The consensus is — for now — do nothing new or different.”

(Chapter 14, page 9)

Simple Will marks a great way for the ‘‘man-off-the-street’’ to acquaint himself with the basics on will instruments. However, if after reading this material an individual is still uncomfortable with preparing their own document, the text at least allows them to speak knowledgeably with their lawyer (and Clifford augments his treatise with several tips on how to find the right attorney for you).

Order from amazon.com.

Each of these texts from Nolo are strong selections that provide insightful commentary for the lay reader on complex legal subjects. They have earned our highest recommendations.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

Focusing On West

FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT, Third Edition. Norman Abrams and Sara Sun Beale. American Casebook Series. West Group.

Recent significant developments in the Federal sphere of criminal law formed the genesis of this new edition of Federal Criminal Law and Its Enforcement. Accordingly, co-authors Abrams and Beale have crafted a worthy vehicle through which law students can evaluate and assess such timely topics as federal drug prosecutions and the use of the RICO and forfeiture laws, in addition to analysis of controversial sentencing guidelines.

Other noteworthy features of this selection include more extensive use of text and note material and an Appendix from which the reader can survey the actual civil rights and forfeiture statutes or review the pertinent guidelines used by the Federal bench in sentencing.

The authors have wisely decided to reserve the book’s case law entries only for the most important appellate decisions in each of the areas covered, shedding the more extraneous precedent in favor of in-depth analysis of the primary cases. In all instances, the writing is erudite, lean, and persuasive – a style which might be described as “basic” in the way it moves from introductory federalism issues and then proceeds into various detailed studies of specific federal criminal law topics.

Obviously, Abrams and Beale cover a lot of important ground here. For example, United States vs. Lopez 514 US 549 (1995), the “first decision in 60 years to strike down a federal statute on the grounds that it violated the Commerce Clause” is thoroughly dissected, as are the 1996 legislative revisions that essentially rewrote the body of law on False Statement prosecutions. The new Hate Crime legislation is another fresh topic which receives scholarly and thoughtful analysis by the Abrams-Beale tandem.

This book, now in its third edition and guided by the combined credentials of its authors, succeeds on a high level, making significant academic contributions to the discipline at every point along the way. Beyond that, the impact that federal criminal law has had on the life of ordinary people in recent years makes the subject matter not only extremely relevant, but truly compelling to an integrated study of how laws help shape both our society and our culture.

Recommended as a teaching text in courses on criminal law or evidence; also useful as a general reference text for college and law school libraries.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

HEALTH LAW HANDBOOK. 2005 Edition. Alice G. Gosfield, Editor. Thomson-West.

The timeliness of Thomson West’s Health Law Handbook (“Handbook”) is immediately obvious as one starts to understand the magnitude of the looming health care crisis in America and the government’s apparent unwillingness to confront the problem at its source: here where the staggering cost of basic health care is juxtaposed with the consumer’s inability to afford it.

Readers should consider the following data:

According to the National Coalition on Healthcare (“NCHC”), health care expenditures increased by 7.7% in 2003, or four times the rate of inflation for that year. According to the NCHC, health care spending in this country increased to 1.7 trillion dollars in 2003. And it is further projected that by 2013, 18.7% of this country’s Gross National Product will be spent on health care costs.

The U.S. Department of Justice has publicly stated that every type of health care provider commits health care fraud — including publicly traded companies. This conduct includes billing for services not rendered or not medically necessary, billing for more highly reimbursable services than the ones actually provided, or billing repeatedly for groups of services performed together in order to obtain a higher reimbursement rate. A GAO report in May, 1996 estimated that annual losses range from 3% to 10% of all health care expenditures. Based on 1995 expenditures of one trillion dollars, health care providers were defrauding this country and its citizens of between 30 billion dollars to 100 billion dollars annually .

Looking back, Medicare was established by the 1966 adoption of title XVIII of the Social Security Act to provide both basic and supplementary health insurance to individuals 65 years of age and older (and to other qualified individuals such as the prematurely disabled). The Medicare program itself has different components which are financed separately and which provide separate and distinct coverage to beneficiaries.

The primary components to the Medicare program are Part A (which covers institutional services) and Part B (which covers outpatient services rendered by physicians and other identified professionals). Neither Part A nor Part B claims are processed by Medicare; instead, the Medicare program contracts with “intermediaries” (under Part A claims) or “carriers” (under Part B claims) which are almost always private insurers under contract with the Health Care and Financing Administration. These intermediaries and carriers not only are supposed to process claims, but also have a responsibility for making coverage and payment decisions. In effect, intermediaries and carriers as an intermediary against the prospect of fraudulent claims.

Medicare payments are issued according to an unimaginably complex methodology adopted by Congress in 1983 entitled the “Progressive Payment System” which was intended to reimburse providers for only their “reasonable costs” under a cost-based approach, a fee schedule, or a combination of both methods. For all purposes, a provider’s “reasonable costs” are defined as “the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary for the efficient delivery of needed health services [as] determined in accordance with regulations establishing the method or methods to be used, and the items to be included, in determining such costs . . .” 42 U.S.C. § 1395x (v)(1)(A) [emphasis added].

Given this background, one of the cases reported in the Handbook’s chapter entitled “Update on Fraud and Abuse” by Sanford V. Teplitzky and S. Craig Holden is especially troubling.

The Federal False Claims Act (“FCA”) was enacted during the Civil War at the urging of President Abraham Lincoln in response to the profiteering of unscrupulous Union supply contractors (See: “Bad Mules: A Primer on the Federal False Claims Act”, by Larry D. Lahman, The Oklahoma Bar Journal, (Vol. 76, No. 12, April 9, 2005.)

The FCA not only makes it illegal for a claimant to make a false statement in writing to obtain money from the United States Government, but also allows private “relators” to act as bounty hunters on behalf of the Government. The 1986 Amendments to the FCA provides for treble damages, increased the relator’s share and lowered the level of proof for fraud. As Lahman states: “Because wrongdoers now face the threat of having to repay more than the amount stolen under its treble damage provisions, the FCA deters untold fraud against the government by its mere presence.” Id. at p. 902.

In U.S. ex rel. Atkins v. McInteer (N.D. Ala. 2004) 345 F. Supp. 2d 13202, a Federal District Court adopted a strict interpretation of the FCA provision that liability occurs when any person “knowingly presents, or causes to be presented to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.”

The Court held that state Medicaid officials who received the allegedly false or fraudulent claims for payment did not have an employment relationship with the United States Government; thus, the prohibitions and penalties of the False Claims Act were inapplicable. The authors write:

“Those familiar with entities such as carriers, fiscal intermediaries and DMERCs will immediately see the implication of these two cases. Those entities are not officials or employees of the United States Government either; they are contractors. Claims made by health care providers are necessarily submitted to those entities that are under contract to the government to conduct claims processing. If the courts continue to apply Totten as Judge Acker did to Alabama Medicaid, then the FCA becomes wholly inapplicable to the vast, vast numbers of claims submitted to carriers, fiscal intermediaries, and DMERCs.”

(§ 7.4, Pages 373-374)

The authors also note that D.C. Circuit had denied rehearing en banc on December 8, 2004, and a petition for certiorari had not been made as of the date of the writing. Clearly, unless Atkins, supra, and the case on which it relies as authority, U.S. ex rel. Totten v. Bombardier Corp. (D.C. Cir. 2004) 380 F.3d 488, are either limited or overturned by the U.S. Supreme Court, unscrupulous health care providers will have little to fear from the treble damages deterrent of the FCA (nor will whistle blowers have any financial incentive to disclose such fraudulent conduct).

Readers will find the Handbook’s chapter on “Consumer Directed Health Care” by Gary Scott Davis and Susan M. Nash especially informative, since the authors identify what is driving this movement in the marketplace along with the models on which it relies:

“How has the marketplace come to its flirtation with consumer-directed health plans” Plain simple economics. Over the past decade, employers have increasingly revolted against the rising, and some argue staggering cost, of employee health benefits. With increasing willingness and resolve, employers have asserted that employees must pay more of the share of increasing health care costs or alternatively, the employer will simply provide fewer benefits. A Hobbesian dilemma at best.”

(§ 2.1, Page 148)

In addition, the authors note that the “new paradigm” for Consumer Directed Health Care premises that “consumers will personally pay more of the cost of care and benefits, but in exchange be provided with the tools to make more informed decisions regarding care and treatment and a tax advantaged account to finance a portion of these costs. Under this paradigm, once the patient is transformed into an educated consumer with a financial stake in their cost of care, the purchase of medically unnecessary or marginally beneficial services and items will be curtailed leading to containment of the escalating health care premiums over the past decade.” [Id., § 2.1, p. 148.]

Unfortunately, the creators of such health care “models” fail to account for the fact that up to ten percent of every health care dollar —if we are to believe ten year old Department of Justice statistics— are lost to fraud or mismanagement. Nor do such models apparently take into consideration the hourly media barrage of advertising by pharmaceutical manufacturers which drive the marketing of often unnecessary — and sometimes downright dangerous — drugs to the American consumer, turning many of them into prescription junkies.

Finally, how is the American consumer going to pay for those services which may become medically necessary ? As a personal example, one family member underwent two surgeries for uterine cancer in 1972 and spent ten days in the hospital. The total cost of the medical procedures at that time —surgeries, doctors, medicine, hospitalization and follow up consultations— was less than $2500. Today, such a medical procedure would cost hundreds of thousands of dollars and economically destroy any family without health insurance (and perhaps even substantially harm families with such insurance). Obviously, the paradigm-makers fail to recognize that individual health care policies are now simply unaffordable and that health care costs are beyond the control of the individual consumer.

When one reviews the authors’ well-developed and expertly summarized analysis of “tax favored” accounts, it becomes apparent that such accounts will do little or nothing to lower the unconscionable cost of medical services at the source, i.e., preventing a broken leg from accelerating into a personal bankruptcy. For example, a “Health Savings Account” authorized by IRC § 223 allows a maximum contribution which cannot be greater than $2,650 for an individual or $5,250 for a family, assuming other qualifications are met including the fact that an individual must be covered by a “high deductible health plan” and not covered by any other health insurance.

As another example of the looming health care crisis, the authors of the chapter entitled “Long Term Care Future Trends” note that within the next eight years, 77 million baby boomers will turn age 65, further citing that “LTC costs are expected to be $135 billion in 2004, rising to $260 billion by 2025, at which time the government’s share through Medicaid through Medicaid is expected to be 83 billion dollars. Medicaid spending accounts for about 21% of state budgets, with growth at 11% per year.” [§ 12.20, p.642.]

The authors also point to a growing advocacy of home and community-based services as part of future long term care. Unfortunately, what such advocates often fail to realize is one especially haunting government statistic routinely taught to agents selling long term care insurance as part of their mandatory education, namely, that 1 individual in 10 over the age of 65 will suffer from Alzheimers disease or other dementia-related illness. Many of these individuals will almost certainly require care in an institutionalized setting, in turn creating even more of a burden on already stressed state Medicaid budgets. Sadly, if such people end up dying in their home, it will likely not be because of choice.

Review of this text makes it readily apparent that unless this country and its “policy makers” begin to deal with reality and begin to lower the barbaric health care costs faced by working men and women in America, it may wake up one morning —as the leaders of East Germany did a decade and a half ago— to find that the only people still going to work are its bureaucrats and policemen.

Recommended to all general practitioners for its timely direction on Health-Law regulations. Should further be considered as a supporting class text in courses designed to instruct the advanced student on the law as it relates to modern health care systems. Finally, recommended to law libraries at both the government level and in the University setting for its long-range reference value.

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by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

CASES AND MATERIALS ON THE RULES OF EVIDENCE. Third Edition. Olin G. Wellborn III. From the “American Casebook Series.” Thomson-West.

Courtroom skill is not a product of chance or circumstance. As with any other profession, occupation, or calling, the practice of the law requires the student to master a carefully crafted set of tools — tools that trial lawyers routinely must depend on in order to competently represent their client’s interests.

Olin G. Wellborn III’s third edition of Cases and Materials on The Rules of Evidencefrom the American Casebook Series by Thomson-West, presents students of the law and related disciplines with a text that lays out these “tools of the trade” in a scholarly yet pragmatic way, capturing both the technical nature of the material and the theoretical underpinnings of the rationales supporting the application of the rules.

Basically, the main purpose of the rules of evidence is to help the court system operate in a balanced and fair manner, by protecting a jury from seeing or hearing evidence that is unreliable or prejudicial. Following rules of evidence ensures that a set of strict standards will be followed by the parties to prove or disprove the factual issues in a case. Wellborn’s book provides a basic knowledge of the role each federal rule plays in such a trial setting.

As the author notes in the Preface to the work, the materials in the book are meant to be entirely self-sufficient, thus allowing for maximum benefit to the student, when studied with a current copy of the Federal Rules of Evidence. Each chapter examines an article of the rules. Wellborn has compiled carefully selected cases demonstrating not only the substantive parameters of each rule, but its application to a specific factual context. Enhancing the student’s understanding of the rule’s operation are detailed notes following each case which further expand upon the discussion.

A feature worthy of note is the text’s organization, uniquely evidencing the author’s familiarity with his subject as well as his classroom experience. The simplicity of the linear approach creates a logical sequence of building blocks for the reader. The book begins with the most fundamental evidence concepts, relevancy and the hearsay rule. It then proceeds with a review of the procedural criteria for admitting and excluding evidence, including documentary and other tangible evidence. It concludes with the peculiarities of the rules on privilege as well as substitutes for evidence, including presumptions and judicial notice.

Wellborn wisely chooses not to intrude into the learning process by interjecting either personal judgment or viewpoint. Instead he simply presents the rules of evidence in a variety of contexts (primary cases, secondary cases, statutory analysis), showing how each tool is to be used and trusting the reader to then use the rule correctly in a professional setting. This is teaching at its most basic level and the core of learning, showing great respect between author and reader, instructor and student.

As a result the style of the book has a “let’s get down to business” feel to it – simple, direct, unadorned with superfluous commentary and extraneous material. Most satisfying is that Wellborn has selected interesting cases to demonstrate each rule, the factual settings of which bring a true human dimension to the material.

But more importantly, in a subject that can be deadly technical and dry, the author has succeeded in showing the relevance of evidence – not as an abstract concept – but as organic, vital, critical, operating in real life settings to protect rights, level the playing field, give expression to societal expectations, and ensure that results will be based not on chance, but on objective standards that seek to preserve fundamental notions of fairness.

Recommended as a teaching text in law or law enforcement courses on evidence. Imperative as a general reference text for college-level law libraries.

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by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

Law, Unions and the State of the American Worker

LABOR LAW STORIES. Edited by Laura J. Cooper and Catherine L. Fisk. Foundation Press.

So where did the real unions go and what is the state of labor law in the post-millennium decade? Anyone interested in answering this question should open Labor Law Stories (edited by Laura J. Cooper and Catherine L. Fisk) and give it a long and comprehensive review.

This book, just released from the legal publisher, Foundation Press, provides a very interesting record of the leading cases that have shaped the landscape of labor law. Here, Cooper and Fisk have compiled analysis of the major cases responsible for the statutes that are used to regulate labor in the United States.

However, the book serves as much more than a stodgy memorialization of labor law. To the contrary, the editors have taken great pains to make the legal subject matter relevant to both the practicing attorney and the instructor charged with teaching the student about the state of labor in today’s America. What’s best about this text is that it makes relevant these cases by exploring them in relation to society and the perspectives driving its people.

For example, in chapter two (written by Deborah C. Malamud), the story of Steele v. Louisville & Nashville Railroad is told, telling the story of the struggle of the black worker to gain equal footing in the workplace. Early in the 20th century, the railroad industry was the bastion of the white worker, with black workers relegated to the most dangerous jobs in the field. In this essay, Malamud does a beautiful job in detailing the broad reaching implications of this case and how instrumental it was in forging the road for “racial justice on the rails.” Also notable in these case discussions is the story of Hoffman Plastic Compounds, Inc. v. NLRB — a case of massive importance for undocumented immigrants entering the United States work force.

In the end, Cooper and Fisk do a splendid job in editing a book that is chock full of historical and legal data while still being easy to navigate. Students in the field will find the chapters well organized and formatted in a way that is conducive to long-range comprehension. Legal texts often tend to be dry reads and over-burdened with facts. In contrast,, Labor Law Stories directly benefits from the efforts the authors have taken to streamline this material and make it meaningful to a new generation of worker.

Recommended as a supporting class text in all courses examining the historical face of labor/employment law. Also recommended a general reference text for Law libraries at the University/graduate level.

For a column on the deteriorating state of our labor unions, click here.

by John Aiello

More From Thomson: Real Estate & Related Legal Issues

MOLD & REAL ESTATE. A Handbook for Buyers and Sellers. Carmel Streater. Thomson South-Western.

As any civil trial lawyer worth his salt will tell you, mold contamination in residential and commercial properties has become the toxic tort du jour — a problem of growing proportions that has become all too common place throughout the country during the last decade.

Accordingly, this new text by Carmel Streater (Thomson South-Western) serves as an easy-to-understand primer in large print identifying the substance (mold as living creature/organism), in addition to noting the health hazards toxic mold can pose and the legal ramifications its existence in a structure often creates.

This potential for legal consequences is best illustrated in a case which originated in Dripping Springs (no pun intended ) Texas, where homeowners Melinda Ballard and Ronald Allison filed a series of insurance claims against their insurer, Farmers Insurance Group. These claims resulted from “troubled areas” in the structure, including the presence of mold contamination.

After drawn out litigation, the case went to trial on May 7, 2001 (five years after the original claim was filed), and the jury returned a verdict which included $2,547,350 to replace the home and $1,154,175 to remediate the mold contamination. As Streater states: “The district court rendered a final opinion on October 30, 2001, for over $33,000,000 [in]which the actual damages were reduced by $2,045,204.28 (the amount already paid by FIE on claims). The Farmer’s Insurance Group no longer writes homeowners’ policies in Texas.” (Emphasis added).

Cases like Ballard v. Farmers Insurance Group clearly reached the attention of corporate boardrooms, and in 2002, letters were sent to millions of policyholders across the nation modifying their policies. Specifically, these modifications provided that mold contamination which results from deferred maintenance would not be covered. As a consequence, many homeowners, whether they know it or not, now have limited or no coverage in the event mold contamination occurs in their dwelling.

Streater’s text is recommended to both buyers and sellers of residential and commercial structures as an invaluable resource that provides insight into a problem of universal concern. It also should be recommended reading for any individual seeking a Realtor’s license.

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by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

Police Studies

INTERVIEWING AND INTERROGATION: THE DISCOVERY OF TRUTH. Steven V. Gilbert. Wadsworth-Thomson Learning.

In this text, Steven V. Gilbert has created a primer on the essentials of interviewing and interrogation techniques for law enforcement. Its basic premise is one so fundamentally necessary to effective police investigation that it is often overlooked by newer officers just entering the profession. One reason for this is that the subject matter is usually assigned to a general textbook where it is merely one of many other criminology skills being presented to the student.

Here, Professor Gilbert has eliminated those other distractions and developed a practical reference manual and field guide so that undivided attention can be focused solely on the subject of proper interviewing.

Stressing a police officer’s critical need for information in every investigation, the author notes that the collection of physical evidence at a crime scene provides only partial bits of information that help to show what happened. But the real answers – the “whys” and “intents” – come from those persons involved in the events. When such information gathering is not obtained early, or when the right questions are not asked or an interviewer alienates a witness, investigations suffer and resolutions of the crime are often delayed.

In reading this text, it’s obvious that Professor Gilbert has both a mastery of and passion for his subject. A former special agent with the U.S. Army Criminal Investigation Command, he currently is director and professor of the Bachelor of Technology Program in criminal investigations at the State University of New York. He also completed a fellowship in forensic medicine at the Armed Forces Institute of Pathology, Washington, DC He writes with an accumulation of over 20 years of criminal investigative experience.

Serious students will not only appreciate the scholarly value of his work, but will readily want to apply and transfer its wisdom to their practical police work. This is a man who has been there, seen it, and knows what does and does not work in the gathering of information. Accordingly, his insights can be deceptively simple but invaluable. For example, at page 52 of the book, Gilbert offers this advice in the context of interviewing the suspect of a crime:

“Perhaps the best interrogation technique to discuss first is the explanation of how investigations work. If a suspect can be convinced of the invariable success of the investigation itself, then the probability of obtaining a confession increases significantly.”

Style can be critical to the success and value of any book, and this is especially true of textbooks used in an academic setting. Students will find Gilbert’s book surprisingly readable: the analysis presented in a user-friendly format, the writing refreshing in its deliberate exclusion of extraneous commentary. Each chapter benefits from this simple, straight-forward design. The chapters address a single topic whereby the basic point is stated succinctly, followed by examples of techniques pertinent to the type of interview or interrogation being discussed. Also included are practice tips and applications for the officer.

A particular aspect of the book’s format which should prove helpful to the student are the Real Life Scenarios which punctuate each chapter:

“A woman reported being raped while walking along a dark path at night. If not for the physical injuries she sustained during the incident, her statement would have been suspect. Her reaction to the incident, as well as her behavior during her interview, did not support her being violently rape. Her general demeanor was that of calm reflection of her actions that may have contributed.”

(From “Interviewing the Victim”)

Professor Gilbert uses the scenario to instruct students in the behavioral clues common to victims of crime, and notes that their absence can indicate that the victim may be untruthful in their report of a crime. At the same time, he cautions that not all crime victims react to the trauma in the same way. Some victims may not recall the details at all. The author concludes that, when judging the victim, the police officer must take the totality of the circumstances surrounding the complaint into account.

Since this material is based on actual experiences, instructors should find the scenarios useful for interactive classroom discussion. Through them students can learn to recognize common mistakes, and appreciate the nuances and attention to detail necessary to completing an effective interview.

The substantive content of the book covers myriad topics, including ethical considerations (making deals and breaking the law in order to get a statement), preparation steps, and interrogation techniques for different types of offenders. The author expands the subject matter to include chapters on how and why false confessions happen and concludes with an interesting chapter on forensic hypnosis. An appendix offers helpful forms, including a sample interview worksheet as well as a sample rights warning and waiver certificate. On a separate level, Gilbert also discusses human motivations and influences, critical elements to knowing not only what to ask but how to ask it.

Ultimately, the discovery of truth is the primary goal of law enforcement work, and Professor Gilbert’s book will assist the student in competently performing this essential police function.

Recommended for criminology students and their instructors, it would best serve as a supplemental text accompanying more general criminal justice works, or as a specific instructional module in reserve officer training.

COMMUNITY POLICING: Partnerships for Problem Solving. 4th Edition. Linda S. Miller and Karen M. Hess. Thomson-Wadsworth.

The new edition of Community Policing is completely revised from previous editions both in terms of structure and focus. Co-authors Miller and Hess, frequent contributors to the growing body of work on police relations, have organized the text into three primary sections. Section I discusses the evolution of community policing in terms of the necessity for the police mission to include the involvement of the community. Section II addresses the communication and interpersonal skills required by police officers to gain trust and cooperation from community members. Finally, Section III concludes with a discussion of the collaborative efforts needed to manage various community problems, ranging from traffic control to workplace and domestic violence as well as hate crimes and terrorism.

Miller and Hess’s study functions effectively as a textbook for serious students interested in a career in law enforcement. The material has been completely updated, with new terms, tables, figures, and photographs included. Each chapter begins with a highlight of key concepts to be covered which also doubles as a statement of objectives for the subject matter. The authors then allow further exposure to a chapter’s key information by providing a detailed chapter summary. Discussion questions, references, and a suggested community project round out the instructional features of the work.

The book’s scholarship blends nicely with its practical “nuts and bolts” approach to the subject matter. Its value to the reader is enhanced by clear, understandable writing. The substantive content has been designed to promote attitudes of professionalism and competency commonly expected of police officers operating in such a highly visible environment. For example, the section on developing interpersonal skills addresses the challenges inherent in interacting and communicating with individuals who are culturally, racially, or socioeconomically different. The chapter on proactive policing includes a timely discussion of how law enforcement must come to understand and be prepared to use the fundamentals of mediation as a problem-solving tool. A thought-provoking section looks at how law enforcement benefits from adopting concepts borrowed from business: networking and being service oriented, treating community members as customers.

The authors have added a new chapter which highlights the central theme of this edition, the importance of building partnerships between the police and community. Emphasizing its critical nature in the field, Miller and Hess begin this chapter by quoting the police chief of the Charlotte-Mecklenburg Police Department :

“Problem-solving without partnerships risks overlooking the most pressing community concerns. Thus, the partnership between police and the communities they service is essential for implementing a successful program in community policing.”

(Page 173)

A thoughtful concluding chapter, looking to the future of community policing, analyzes what has and has not worked in the field, forcing the student to look at the question in terms of whether community policing is a philosophy or an actual reality.

A minor weakness in the book is the absence of critical-thinking problems which would enhance its pedagogical value enormously, providing the student practical hypothetical situations against which to apply the principles learned. The book remains, however, a thorough exploration of the subject and is a recommended text for criminology students and instructors. Miller and Hess succeed at showing how, working together, the police and the community can accomplish what neither can accomplish alone.

by Paul Aiello

POLICE INTEGRITY AND ETHICS. Matthew Hickman, Alex R. Piquero, and Jack R. Greene. Thomson-Wadsworth.

Part of the Wadsworth Professionalism In Policing Series, the authors have gathered a collection of essays addressing the timely topics of police misconduct and integrity. The contributors are all noted experts and are uniformly regarded as qualified commentators in the field. As a result, the book is immensely informative and offers the prevailing theories, philosophies, and concepts on the subject.

Beginning with an examination of how to define and measure integrity, the essays then explore the theme of intervention strategies to identify “at risk” situations and conclude with a consideration of the public perception of police misconduct. In another section of the volume, discussing situational contexts and their impact on integrity, the reader will find a fascinating study of the types of situations in which police officers are most likely to find themselves corrupted. For example, in one essay, the issue of the amount of force directed against racial minorities (as compared to the force used against whites) is weighed, with the piece then identifying how such behavior can be the product of patterns of thought that seek to disregard legal standards of conduct.

Positing the book’s central theme, author Jack Greene writes in the Introduction, “Police integrity is thus best conceived of as the product of both police behavior and the public perception of that behavior.” Collectively, then, the insights afforded through the in-depth essays will help to illumine the complexities surrounding these competing interests. For the serious student, the volume will be a compelling read, focusing on an aspect of law enforcement for which the police have increasingly come to be judged, individually and as an organization.

As noted by the publisher, anthologies such as Police Integrity and Ethics, in exploring contemporary problems and reframing debates, perform a valuable educational function by filling in the gaps left by more general and traditional texts.

The present volume makes an effective companion reader to general criminology, sociology, or law texts. It is also recommended as a general reference text for both college and public libraries.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

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CONSTITUTIONAL LAW AND THE CRIMINAL JUSTICE SYSTEM. 3rd Edition. J. Scott Harr and Karen M. Hess. Thomson-Wadsworth.

Most constitutional law texts default to the long-established case book approach to the subject matter. Constitutional Law pleasantly surprises the reader by adopting instead a more traditional college textbook format, suitable for law enforcement students in either introductory level courses on criminal law and procedure or more specialized classes on constitutional law or search and seizure.

Co-authors J. Scott Harr and Karen M. Hess have successfully integrated several unique features which distinguish this book from similar texts in the field:

(1) First, they devote their entire treatise to the impact which constitutional imperatives have had upon the criminal justice system. Specifically limiting the book’s focus in this way enables students to concentrate on a defined area of study relevant to their future police work;

(2) The book then combines a broad overview of the foundational principles of each constitutional amendment with specific legal guidelines pertinent to each;

(3) Finally, the discussion of each amendment includes the seminal case law which has interpreted it.

The authors have designed the book to make learning as enjoyable as possible. Each chapter and section serves as a building block for the next so that, at the end, the reader can stand back to survey the completed structure of constitutional limitations upon the government’s power to define, prosecute, and punish crime. The writing style is basic, unadorned, shorn of legalese and easily understandable. In addition, the page layout contains wide margins for notes and references.

Discussion questions, internet assignments, and a detailed list of references and cases cited make up the instructional features of each chapter of the text. The Appendix contains a reproduction of the Constitution and each of the Amendments, the landmark cases of Marbury vs. Madison and Miranda vs. Arizona, and a detailed glossary of terms, but lacking are critical thinking exercises (practical application questions) which would assist the student-reader in testing themselves on retention. The authors do provide, however, helpful Book Companion Web Sites which include further case content tied to the chapters, as well as numerous study aids.

Given the authors’ expertise and qualifications to write about the subject (Harr is a licensed attorney, police officer, private investigator, instructor in various areas of the law and licensed to practice before the U.S. Supreme Court; Hess holds degrees in English and criminal justice and has co-authored eight other books in the criminal justice field), the book’s substantive content is well-selected and timely in its relevance to current events.

Moving forward, Constitutional Law naturally progresses through its subject matter. The first section begins with basic civil liberties guarantees (Equal Protection, First amendment, Second Amendment), modernizing the material to include the current gun control controversy. Section II goes into each of the amendments influencing criminal justice law and procedure (Fourth Amendment search and seizure issues, Fifth Amendment Due Process, Sixth Amendment Right to Counsel, Eighth Amendment bails, fines, and punishments). The text culminates in Section III with a discussion of the remaining amendments, primary among them being the Ninth Amendment and concepts of “zones of privacy.”

In the end, the work remains a useful and effective textbook, recommended for both student and instructor in the fields of sociology, criminology, or introductory law courses. On a broader level, Constitutional Law would constitute a valuable resource to anyone interested in learning and understanding more about their legal and civil rights. Harr and Hess are to be applauded for helping readers get their bearings in this fresh and unique approach to a complex topic.

by Paul Aiello

CRIMINOLOGY, Sixth Edition. Freda Adler. Gerhard O.W. Mueller. William S. Laufer. McGraw Hill.

The intent of both the Sherman Antitrust Act, enacted in 1890 and the Clayton Act, enacted in 1914, was to prevent monopolies and anticompetitive practices by both individuals and corporations. Although more than a century has passed since the enactment of the Sherman Act, a re-reading of the authors’ superb chapter on white collar and corporate crime evidences that neither Act has really limited the power of major corporations to loot this society for personal gain.

As Criminology points out, of the world’s 100 largest economies, 51 are corporations.For example, Wal-Mart Stores produces more revenue than Saudi Arabia, Norway or Denmark, while Exon-Mobil makes more money than South Africa, Greece or Israel.Yet, in 1998, Texaco, Chevron, PepsiCo, Enron, World-Com, McKesson and General Motors (the world’s largest corporation) paid less than zero income tax.

In the healthcare field, the authors note the estimate made by the Inspector General’s Office in the Department of Health and Human Services which asserts that 20 billion dollars is stolen annually from the Medicare program alone by healthcare institutions. This becomes even more distressing when you realize that the vast majority of hospitals in the Medicare program are supposedly nonprofit entities organized under Internal Revenue Code 501 (c) (3) and asked to pay no federal income tax or state income tax and (in addition to being generally exempt from payment of property tax is many states).

However, after years of existing below the radar, time may be running out for these rogue institutions: In 2005, the Commissioner of the Internal Revenue told a congressional committee that many nonprofit entities have become little more than tax-exempt holding companies (SEE Mark Everson’s written statement here).

Criminology ripples with much new information meant to enlighten students and motivate deeper interest in the discipline. For example, the authors point out that Edwin Sutherland provided some of the first study into the world of white collar crime, drawing on the early scholarship of W.A. Bonger and E.A. Ross (as well as the literary works of Upton Sinclair and Lincoln Steffens) to identify the hidden culture of corporate crime that often thrives on the trappings of respectability and status.

As the authors note, Enron followed many of the “best practices” of corporate governance and its complex dealings with “related parties” while its true condition lay well hidden by its accounting and auditing stooges at Arthur Anderson. It is also worth noting that Anderson also was the auditor for Waste Management, Inc. and was fined in the early 1990s by the Securities and Exchange Commission for making materially false and misleading audit reports.What is most startling is that Anderson seemingly ignored the fact that its ultimate allegiance lay, not with the company’s CEO, CFO, or board of directors, but rather, with the corporation’s shareholders and with public investors. See United States v. Arthur Young, 465 U.S. 805 (1984).

In Criminology, readers will be greeted by a text that provides in depth study of all facets of crime. The authors employ extensive tables of statistics (with such thought- provoking titles such as “The Transparency of International Bribe Payers” and “Bribery in Business Sectors”) that will engage their audience and promote the impulse for independent study.

Accordingly, Criminology is recommended as a primary course text in all undergraduate Administration of Justice programs.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

A CONCISE INTRODUCTION TO CRIMINAL JUSTICE. Robert M. Bohm. McGraw-Hill.

This book is note-worthy for many reasons, including Robert M. Bohm’s chapter entitled “Historical Overview of Institutional Corrections,” which deserves special recognition.

Here, Bohm points out that the United States possesses one of the most severe and repressive penal systems of any advanced industrialized nation (in addition to being one of the few advanced nations to still employ the death penalty). Moreover, the U.S. has the highest rate of imprisonment and issues longer sentences to offenders than any other nation.

As the author points out, over the last thirty years, the United States has moved away from rehabilitation and instead has replaced the idea of a correctional institution with a “contemporary violent prison.” Bohm further asserts that one institutional response to the prison crisis is found in the move toward privatization — this is, in effect,the delegation of police power by the state to private for-profit operators.

And the author writes: “Two companies – Corrections Corporations of America (with a 52% market share_ and Wackenhut Corrections Corporation (with a 22 percent market share) – dominate the industry.”

Such privatization evidently amounts to big business, since Corrections Corporations of America is reported to have had annual revenues of 1.15 billion dollars in 2004.

Although Bohm notes that there are indeed economic incentives to the privatization of penal systems, a more fundamental question is to what degree the state can “cede their correctional responsibilities” to private corporations whose only incentive is profit.

As the French philosopher, Michel Foucault, noted in his seminal work on penology, Discipline and Punish, the Birth of the Prison, the penal system and the discipline imposed by its agents is an example of power in its rawest form. Even Stalin, that great manipulator of gulags, was savvy enough never to transfer (and ultimately delegitimize) the power of the state.

This is a ground-breaking book would serve well as a primary class text in all entry-level criminal justice courses. In addition, Bohm’s treatise would also prove useful as a supporting class text in corrections courses that survey the present state of the American prison system.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

CRIMINAL LAW. 6th Edition. Sue Titus Reid. McGraw-Hill.

Among introductory courses offered at the undergraduate level, the subject of criminal law continues to attract and fascinate a wide student audience in the social sciences. That appeal is confirmed in this latest edition of Criminal Law, written by Sue Titus Reid, a distinguished author in the field of criminal justice. In addition to contributing articles to the Encyclopedia of Crime and Justice, Reid’s other works include Crime and Criminology (first published in 1976 and now in its tenth edition) and The Correctional System: An Introduction.

Reid brings to her writing an authority which reflects her diverse background as a criminologist, lawyer, and teacher. Beyond her command of the topic, however, she writes with the clear purpose of helping her students to learn, and to do so in an enjoyable way. The organization of the substantive material is not unlike other criminal law texts. The author begins with a basic introduction, discussing the nature and purpose of the criminal law. Following this is an examination of the elements of a crime. Then Reid defines each of the major crimes and defenses and analyzes its components in depth, modernizing the discussion to reflect the recent emphasis on terrorism, drugs, and white collar crime.

What sets the text apart is Reid’s skillful use of current events and issues to demonstrate many of the legal principles. For example, the murder trial of Michael Skakel, nephew of the Kennedys, is used to discuss issues of jurisdiction. The case of Mary Lou Letourneau, convicted of the child rape of her 12 year old student, features in the chapter on criminal liability. Coverage of other high profile cases is included in the chapter on murder. Noteworthy are insights offered in the concepts of murder and manslaughter, using the case of the death of a neighbor by a dog with known vicious propensities (Marjorie Knoller and Robert Noel case) as the discussion vehicle. The student’s familiarity with these contemporary events is likely to draw him/her immediately into the learning process.

Reid also treats the reader to a fascinating look at some of the recent innovative defenses being used in criminal trials, including the cultural defense, posttraumatic stress disorder, the Viagra defense, and postpartum depression on subsequent behavior.

New sections in the book explore many of the more timely and controversial aspects now emerging in criminal law – the United States Patriot Act, the Public Health Security and Bioterrorism Response Act of 2002, and how RICO is being used to prosecute defense attorneys in order to control crimes of complicity.

Also new to this edition are several instructional aids for the student, including:

  • “For Debate” questions, allowing students to engage in stimulating discussion of controversial topics;
  • A “Case Analysis” following each chapter, providing a court holding and rationale related to the material covered, followed by cogent, critical-thinking questions;
  • Focus Boxes enhancing each chapter, containing a wealth of information related to each chapter topic;
  • An appendix containing reference information onhow to read a citation.

The combination of (1) exciting content, illustrated in an innovative, relevant approach; (2) written in a friendly, understandable style; and (3) featuring a variety of instructional tools makes this textbook a cut above similar offerings.

Recommended for both student and instructor in the disciplines of criminology, sociology, or law, the book truly has the student as the focus, centerpiece, and reason for its existence, marking and defining its value as an educational resource.

Order from amazon.com.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

MEDIATE, DON’T LITIGATE. Strategies for Successful Mediation. Peter Lovenheim and Attorney Lisa Guerin. Nolo Press.

Mediate, Don’t Litigate is a timely, welcome and worthy addition to the Nolo library, appearing at a time when mediation has gained both acceptance and respect in both the legal and business communities.

In the fast-paced world of the 21st century, mediation clauses have become commonplace in almost every real estate, employment, and health care contract. Moreover, courts are looking to mediation as just one part of a larger ADR (Alternative Dispute Resolution) tool-kit that will help to reduce its caseloads and provide disputants with an inexpensive, less formal mechanism by which to resolve or settle their cases. Many counties are now establishing mandatory mediation programs for most civil cases, finding it an effective means of conflict management. For these reasons, it is essential that everyone should develop a fundamental understanding about mediation as an ADR method. Mediate, provides a one-stop resource from which that basic knowledge can be obtained.

Co-written by a longtime professional mediator and one of Nolo’s own legal editors, each of the authors are well-credentialed to write about the subject of mediation. The contents have the imprimatur of the depth of their background, experience, and scholarship. They are knowledgeable not only about the broader process of mediation, but also its “fine-tuned” nuances and the book should help both lawyers and lay persons better prepare for and participate in this particular dispute resolution format.

Mediate is written in an understandable, readable, user-friendly style that contributes to its value. It has been prepared with the clear intention to assist both lay persons and lawyers unfamiliar with mediation understand the process through a step-by-step “guided tour” where the basic principles are broken down and explained simply and directly.

Lovenheim and Guerin proceed from the premise that mediation may provide a better answer for people than the more traditional “day in court” mind-set. In comparing mediation with other forms of dispute resolution in the book’s opening chapters, readers will quickly discover the flexibility of mediation by seeing how the same techniques have been used successfully in a myriad of contexts, including complex business disputes, employment relationships, landlord-tenant, consumer-merchant, neighbor-neighbor, or divorce and custody cases. The book also explains both the factors which favor and oppose mediation to help the reader make an informed decision as to whether mediation will make sense in a specific dispute and therefore should be considered in place of litigation.

Mediate covers a wide range of important basic information, including:

  •  Where to find a mediator and factors to help you choose the right mediator;
  • How to get a mediation started;
  • How to prepare for a mediation, including evidence gathering and deciding who should attend;
  • How to write an agreement that will work for all of the interested parties.

Mediate treats the reader to an in-depth discussion of mediation in three specific contexts: (1) Divorce; (2) Business Disputes; and (3) Employment disputes, noting specific types of issues likely to emerge and considerations useful to their resolution. The book is at its best, however, when it actually takes you inside the mediation room, placing the reader in one of the chairs around the conference table and actually making you one of the disputing parties:

“The caucus is a private meeting between you and the mediator, during which the mediator can talk with you more informally and candidly than if the other side were present. Some mediators consider it the “guts” of the mediation…”

(Page 6/27)

“To help you arrive at a solution to your dispute, your mediator has to get both parties to change their positions (or simply to see that their positions don’t really conflict.) One way to do this is to question the correctness or wisdom of the position you expressed in your opening statement. The mediator’s questions will be designed to make you wonder if you are being realistic about your case.”

(Page 6/29)

“An important part of the mediator’s job is to help you think of new ways to resolve your dispute. People caught up in a conflict often get stuck seeing only one perspective…To help you move off the dime, your mediator might ask you questions like these:

“How would you really like to see this dispute resolved, from a practical perspective?”

“What are some ways of settling this dispute that would be fair to you and the other side?”

(Page 6/31)

In this section of Mediate, the authors outline in detail the six stages of the process: (1) Mediator’s opening statement; (2) Disputants’ opening statements; (3) Joint discussion; (4) Caucus; (5) Joint discussion; and (6) Closure The authors then explain the mediator’s role in organizing the issues, challenging your position, giving you a reality check, and helping to create settlement options. Particularly valuable are insights into how can a party can use the mediator to assist in the negotiation process. After reading the material in this section, one should be able to participate meaningfully in a mediation with a full understanding of what to expect.

Lovenheim and Guerin have done an exemplary job in educating their audience on a very complex topic. Anyone contemplating mediation should make this book a must-read in preparation for what they will encounter.

Also from Nolo

BECOMING A MEDIATOR. Your Guide to Career Opportunities. Peter Lovenheim and Emily Doskow. Nolo Press.

Mediation is by far the most popular of the conflict resolution methods that comprise the burgeoning ADR field. Its appeal is based upon its many distinguishing features, including confidentiality, informality, nominal or low cost, and placing the ultimate decision-making in the hands of the parties.

The current demand for mediation – from minor neighborhood squabbles to multi-party complex business disputes – has probably never been greater. As a result, there is a demand for qualified mediators in a variety of settings, creating an abundance of career opportunities.

Attorney Mediator Peter Lovenheim and Nolo Editor Emily Doskow have written this present Nolo entry as a guide for anyone considering a possible career in mediation. The authors have prepared the book with a diverse audience in mind. Both lawyers and non-lawyers alike, contemplating a move into the mediation arena, should find the book beneficial and its informational content useful. Practicing mediators interested in learning more about building up their mediation practices are also offered valuable insights and suggestions. As Lovenheim and Doskow conclude in their introduction to the work,

“Whatever your background – law, social work, teaching, psychology, business, homemaking, or parenting – if you have the skills and desire, we believe you can become a mediator and find a satisfying career.”

With no requisite background necessary to become a mediator, the field remains wide open to everyone. Yet, as the book notes, about 3/4 of the people who complete mediator training never actually practice mediation, once they discover that they are not suited to the work. So, as with all good career guides, the authors begin with a reality check, a “self-evaluation” chapter, which poses the question which all prospective mediators must ask themselves: Is mediation the right career for me? To help answer that question, Lovenheim and Doskow identify and discuss skills and traits common to successful mediators. The list becomes a measureable standard by which a person can decide if (s)he possesses these fundamental qualifications, including:

  • good listening skills
  • ability to read people
  • a calm demeanor
  • facility with language
  • ability to understand complex facts
  • trustworthiness in keeping confidences
  • professional detachment
  • self-marketing skills

Lacking one or more of these traits does not necessarily preclude one from becoming a mediator. Those who possess instead what the authors describe as “intuitive peacemaking skills” can also find rewarding job opportunities without necessarily fitting the standard mediator profile. The book provides an in depth discussion of the places where mediators can find work, outlining both the positive and negative aspects of typical mediation venues, including community mediation centers, court-annexed programs, government programs, and private dispute resolution companies. The discussion then expands to offer insights into the kind of mediation training available and touches upon where that training is offered, both general training and specialized training in such areas as heath care, securities, environmental issues, real estate and employment.

By far, however, the heart of the book lies in the comprehensive information that the authors have gathered concerning the resources available for showing mediators where employment can be found. Lovenheim and Doskow have done an impressive job in both the scope and detail of their research. These are the “nuts and bolts” sections for prospective mediators, who will find great value in its practical information.

Featured in the Chapter entitled, “Job Opportunities in Mediation,” for example, are an array of sample “job descriptions” for different types of mediation positions at both the state and federal level. To these the authors have included job qualifications, salary ranges, contact telephone numbers, and website addresses. Selected programs are profiled in a detailed Case Study which adds to the value of the information being placed at the reader’s fingertips. Finally, the Career Resources section presents a list of resource websites that include individual job postings.

For the independent mediator in private practice, the book offers tips on making oneself better known. If a mediator has expertise in a particular area, opportunities to expand his/her practice can be found by networking, making presentations at conventions, writing and distributing a newsletter, or posting online articles of interest in the field.

Although mediator job opportunities may not be as plentiful for non-lawyers, this book can still assist them in their job search. The authors note that the new area of online mediation is providing good opportunities for mediators who are not lawyers. In addition, Lovenheim and Doskow include two sections in the book describing mediation support jobs (case management, administration, sales and development) and mediation-related fields (ombudsman, training and teaching, consulting and coaching), all of which are providing employment opportunities without requiring a law degree.

Ensuring that readers will make a truly informed decision about the mediation profession, the book also includes a cautionary section describing the “dark side” of mediation and explores how it can often be lonely, stressful, and emotionally draining. Despite these potential negative costs, however, most practitioners find the work meaningful and enjoyable, as seen in this case study offered by the authors:

A recent case…involved a father and 27 year-old son who had been estranged for many years. The son said the father cared little for him and was too busy for him. The father said it was impossible to talk with his son because he would blow up at the most innocent remark. They met with the mediator for four hours over two late afternoon sessions. They worked hard, each owned up to his own part in the dispute, and together they reached deeply to find solutions. At the end of the second session, they worked together to come up with the terms of an agreement: regular family dinners, weekly meetings for coffee, use of civil language, respect for each other’s work, and so on…As they put on their coats to leave, the son turned to his father and said, “I really do love you, Dad,” and the father said, “I love you too, son.” They embraced, and left together. This is mediation at its best and most rewarding.

(From the Case Study, “Father and Son,” page 2/4)

Readers can expect Becoming A Mediator to be as readable and comprehensible as other titles in the Nolo Library. The writing is crisp, direct, and unpretentious. Enhancing the book’s value in a visually-pleasing way are the many graphics and interesting side-bar observations that augment each chapter. The appendix is as informative as the book’s substantive content. It includes sample rules of mediation, a list of statewide mediation offices, and academic centers offering degree and certificate programs in conflict resolution. In short, Lovenheim and Doskow, in a satisfying read, effectively present those interested in a mediation career with all of the information necessary to make that dream a reality.

Order from amazon.com or go to nolo.com.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

THE HANDBOOK OF WOMEN, PSYCHOLOGY AND THE LAW. Edited by Andrea Barnes. Jossey-Bass.

This handbook recently released by Jossey-Bass is distinct for many reasons, most notably because of the way it focuses on how American society has confronted women’s topics/issues.

During the majority of the 20th century, the legal world was most definitely a man’s place, formulated by a hard-edged male perspective. However, as cultures evolved and an influx of women joined the work force, that male perspective became much less relevant. Here, Barnes (a psychologist and attorney) has developed a text that focuses on the issues of the woman in contemporary society.

Handbook of Women compiles the essays and articles of myriad experts in the filed, analyzing a varied collection of topics, including abortion, rape, sexual harassment and employment-based discrimination — all subjects that were at the core of the recent Presidential election.

There is a plethora of rich and cutting material here, but the discussions of where courts stand on matters concerning pregnant employees is quite thought-provoking and leaves the reader to wonder why more hasn’t been done by employers to accommodate new mothers. In point of fact, these corporations are actually discouraging parenthood by creating needless obstacles for the new or prospective mother. And this poses long-term problems for the culture and the planet: without children to replenish the world, the world will die away silently. As Barnes and her writers attempt to show, this fact needs to be realized – and now.

In addition, there is a wonderful chapter on women and depression (Jennifer Hightower) which forces to reader to confront the unique and tremendous toll the workplace takes on the female gender.

Barnes has simply done a fantastic job in creating a text that is fresh and vital and brimming with long-range teaching value. The essays (although heavily laden with facts and intellectual preponderance) are well-edited and easy to digest, provoking the reader to take a position and determine where they stand on each particular issue. And in this regard, Handbook of Women is a true teaching text: forcing the student to think as they learn.

Highly recommended as a teaching text in both sociology and women’s studies courses, or in any undergraduate law course that deals with contemporary issues in society. Also recommended to all college-level libraries as a general reference text.

Order from amazon.com.

ORGANIZED CRIME. Howard Abadinsky. Thomson-Wadsworth. Since its inception, the population at large has been intrigued by the idea of the Mafia and organized crime groups. And from “The Untouchables,” to “The Godfather” to “The Sopranos,” writers and film directors have sought to capture the ‘real life’ scenes of how the mob operates — winning Emmies and Oscars along the way.

However, Organized, now in its seventh edition, does all these efforts one better — for this is a text examining the real deal, no lead actors or script doctors, just facts and analysis on how syndicates of criminals come together to thrive and get rich. Organized, written by Howard Abadinsky, examines the concept of criminal enterprise from the idea of structure, analyzing changes within organized criminal associations and how by being willing to change with the times these groups are able to maintain power and control. Meticulously written and careful to honor every detail, Organized takes us through the concept of crime step-by-step, showing students what “organized crime” is and then breaking down its historical ‘life.’ First, Abadinsky explores organized crime in the United States (including wonderful chapters on the New York and Chicago factions, before moving into the very specialized world of African American criminal movements). From that, Abadinsky takes us through the ethnicity of crime, from major Italian movements through the Asian gangs, finally breaking down the business of crime and how money is made and stolen goods turned into cash. In the final chapters, the ways law enforcement has dealt with organized groups of criminals is examined, including a review of the United States statutes that serve as the controlling law in this area.

This comprehensive textbook has many new and interesting angles, but what’s most intriguing is the material on outlaw biker groups. Much of this information is new, and it will hold a searching student spellbound as the myths of “Angels” is dissected line by line. Moreover, Abadinsky’s style of writing is friendly and journalistic — he’s like a newspaper columnist writing a long feature: rather than driving students away with a coarse and dry sociological “study,” he instead draws us in with by cutting into the reasons of a mythical phenomenon, opening us up to the question of why so many men have chosen this as their life’s work.

Appropriate undergraduate text in criminology and sociology courses; also worthwhile text to be used in Administration of Justice courses at the undergraduate level. Recommended as a general reference in all college level libraries.

Order from amazon.com or go to wadsworth.com.

INTRODUCTION TO CRIMINOLOGY. Brendan Maguire. Polly F. Radosh. West/Wadsworth. Excellent and revolutionary text in that it is more than an over-view of the theories and types of criminology. Instead, Maguire and Radosh force the student to first develop and then employ critical thinking skills in order to understand why crime occurs (and why they have developed their own personal perceptions about it):

“Marxist criminology explains crime as a product of capitalist social relations. The powerful in society (capitalists) determine what behaviors are defined as criminal and otherwise control the workings of the criminal justice system. The Marxist theory of crime further suggests that most crimes committed by the powerless are in response to social exploitation and repression.”

(Page 249)

I especially liked the way these authors didn’t shy away from issues such as police brutality: by choosing to identify the fact that dirty cops exist they immediately force each student to study the issues of crime from all angles and perspectives. And it is this fact that’s unique in the world of academic writing: rather then take the easy out and tell the student what to think, Maguire and Radosh force students to learn the issues and then think for themselves. This break away from ‘formula’ should signal other textbook writers to open up their minds and examine new approaches.

Highly recommended as a classroom text in both Criminal Justice and Administration of Justice courses. Bluntly,future police officers need to read and absorb this kind of material before being graduated from an academy. Also recommended as a general reference text in all academic libraries.

Order from amazon.com or go to wadsworth.com.

FORENSIC PSYCHOLOGY. Lawrence S. Wrightsman. Solomon Fulero. Wadsworth. This text, written by Lawrence Wrightsman and Solomon Fulero(recognized authorities in the field) examines the place of the Forensic Psychologist in American culture — including the myriad roles the Forensic Psychologist plays in the US judicial system. Most of us are familiar with such psychologists testifying at high-profile murder trials, discussing the reasons as to why somebody might have committed a crime (also known as criminal profiling).

However, the work Forensic Psychologists do within the legal system goes far beyond this. The Forensic Psychologist will also act as a trial consultant in a variety of ways, perhaps most importantly in family court settings, making recommendations with regard to child custody/child visitation in the wake of divorce. Forensic Psychologists are also often called to testify in court in rape and battered women cases, describing to a jury the mental anguish victims endure. In short, Forensic Psychologists are asked to describe the inner-workings of the criminal mind in cogent and accessible ways.

Accordingly, Wrightsman has written a detailed and thorough text that avoids the tendency to lecture, instead clearly and concisely imparting information to students — almost as if he was in court “testifying” to a jury. In preparing the student for professional service, Wrightsman (who teaches at the University of Kansas) takes time to describe job opportunities in the arena of forensic psychology, examining the various requirements of the field so that students can make informed decisions. Recommended as a classroom text, and as a general reference text at the college level.

Updates

NEW EDITION: The new edition of Forensic expands on each of these topics, taking special pains to address the fact that Forensic Psychologists are specialized scientists whose role is much bigger than advocating the positions of attorneys in courtrooms. It is very important for the student to remember this, because if the psychologist becomes too entrenched within the mechanisms of the legal system, their objective focus can blur. Readers of the second edition will also find a reduction in chapters from 18 to 16, as the authors have trimmed down their presentation to make the material more economical and reader-friendly. To this end, relevant new analysis has been added, including a chapter on “Risk Assessment,” which addresses ways forensic psychology techniques can be used to predict violence and sexual recidivism. Note that Wrightsman has teamed with a new co-author, Solomon Fulero, President of American Psychology-Law Society, who is able to blendthe unique perspective of an attorney with long-standing principles of psychological investigation.

Order from amazon.com or go to wadsworth.com.

by John Aiello

JURISDICTION AND THE GAMBIT OF THE CRIMINAL LAW. Michael Hirst. Oxford University Press.

As every first year law student soon learns, the term, “jurisdiction” is synonymous with the legitimacy of the Court system itself and the Court’s ultimate right to enforce its power over individuals and issues.

Michael Hirst’s text is one of the Oxford monographs on criminal law and justice. Although generally written from the perspective of the English criminal law, Hirst, a Professor of Criminal Justice at DeMontfort University in Leicester, England, also provides a perspective for the expanding scope of criminal jurisdiction in all facets of international affairs, from genocide and crimes against humanity to terrorist offenses, including chemical, biological and nuclear crimes, to the newly emerging “cybercrimes” (which cross all borders).

Hirst’s examples of cybercrimes and computer misuse pointedly illustrates that the international community must first grapple with the terminology to identify the crime (“cyberobscenity”, “cyberterror”, “cybertheft”, “cyberfraud” before it can assert any jurisdiction over the criminal behavior. Clearly, the infamous Nigerian “419” advance fee fraud illustrate that such criminal activity can be initiated from anywhere in the world from any computer terminal by readily available email and fax programs.

To combat such cross-frontier crimes, Hirst advocates the principle of “inclusionary” jurisdiction whereby it would be an offense to either initiate a crime which takes place abroad or, to initiate through conduct abroad, the commission of an offense which takes place within the borders of a country.

Unfortunately, such proposals, however well meaning, should be approached with extreme caution. An expansion of jurisdiction inherently provides the state with greater powers over its citizens as shown by the hastily adopted “Patriot Act” in response to the attack on the World Trade Center.

In the end, this text provides an illuminating capsule of the ever-changing terrain of our world because of the expansion of computer technology, and would prove a useful classroom teaching text in sociology or International Studies courses. All so recommended to the college-level library as a general reference text.

by Frank Aiello

FIGHT YOUR TICKET IN CALIFORNIA. David W. Brown. 10th California Edition. Nolo Press.

BEAT YOUR TICKET (Go To Court And Win). David W. Brown. 3rd National Edition. Nolo Press.

This is one of The Electric Review’s consumer picks of the year, and a book every driver should own. Fight, written by Monterey, California attorney David Brown, has been published to educate you about protecting your rights (in California and beyond) from unjust traffic tickets.

In California, law enforcement offices through out the state have been besmeared in recent years with allegations of writing tickets to fill quotas and for engaging in racial profiling. And as much as we’d like to believe these things don’t happen, they most certainly do. However, as bleak as all this sounds, David Brown’s book offers a detailed analysis on just how to effectively defend yourself in court proceedings and protect your driving record:

Finally, realize that police and prosecutors often have significant influence over the selection and retention of judges. A judge who rules too often against the prosecution may find himself running for re-election without the crucial endorsement of the police and prosecutor’s associations, and perhaps even being challenged by a former prosecutor for being ‘soft on crime.’

(From Beat Your Ticket at 3/8)

These are complicated times, and traffic tickets are no longer just an annoyance. Now, they have the power to follow you for years and increase insurance premiums for decades. Thus, Fight Your Ticket is required reading if your operate a motor vehicle in these United States. In his book, Brown advises that drivers should never just pay a ticket without first examining the situation completely. In Fight, Brown describes how to read and assess whether you should fight it out in court or request traffic school. Fight also includes a tremendous amount of detail regarding applicable Vehicle Code sections and the elements prosecutors much satisfy in order to win a conviction (all meant to help successfully prepare you for trial).

Fight, published by Nolo Press (Nolo has been publishing self-help legal books since 1971) is about protecting your rights as a citizen and as a driver. Even though driving is a privilege, it doesn’t mean you relinquish all idea of your Due Process rights just because a cop says you erred on the road. Trust me — in these times (post George Bush Patriot Act), you can’t afford not to have a copy of this book at hand.

Also recommended for all libraries as general reference text.

Accounting & Economics

Nonprofit Hospitals As Tax-Exempt Holding Companies

AUDITS OF NONPROFIT ORGANIZATIONS. From Thomson-RIA’s Electronic Library.

GUIDE TO NONPROFIT CONTROLLER’S MANUAL. Edited by Craig R. Stevens, CPA; and Horton L. Sorkin, Ph.D. Warren, Gorham & Lamont of RIA.

PRACTICAL GUIDE TO CORPORATE GOVERNANCE AND ACCOUNTING: IMPLEMENTING THE REQUIREMENTS OF THE SARBANES-OXLEY ACT (2005 Edition). David E. Hardesty. Warren, Gorham & Lamont.

On May 26, 2005, Mark Everson, Commissioner of the Internal Revenue Service, provided a written statement before the House Committee on Ways and Means addressing tax-exempt hospitals and health care organizations and the IRS’s administration of those organizations. [1]

In his introductory remarks, Commissioner Everson pointed out that, in 2001, approximately 7,000 non-profit hospitals, clinics, cooperative health service organizations and medical research facilities controlled approximately $490 billion in assets while receiving over $500 billion in gross receipts. Yet, as Commissioner Everson stated: “…there are increasing indications that the twin cancers of technical manipulation and outright abuse that we saw develop in the profit-making segments of the economy are now spreading to pockets of the non-profit sector.”

In an earlier statement made on April 5, 2005 before the Senate Committee on Finance, Commissioner Everson made several shocking representations, including these remarks:

Some tax-exempt health care providers may not differ markedly from for-profit providers in their operations, their attention to the benefit of the community, or their levels of charity care. Further, some exempt providers have entered into joint ventures with for-profit organizations, sometimes placing their entire health care operation in the venture and transforming themselves into what is effectively a tax exempt holding company with a charitable grant-making function.” (Emphasis in bold  added). [2]

Thomson- RIA’s manual, Audits of NonProfit Organizations(“Audits Manual“), is part of its electronic library and serves as a superb resource for anyone wishing to make their way through what Commissioner Everson called, a morass of “multiple interrelated entities and a complex web of service and other contractual relationships…[in order to determine] whether those in control of a particular non-profit health care provider are acting more as investors for their own account or as stewards of charitable assets.”

One cannot doubt, after reading Commissioner Everson’s statements before both the House Committee on Ways and Means and the Senate Finance Committee, that the conduct of nonprofit hospitals is now squarely within the cross-hairs of the Internal Revenue Service – and for very good reason.

As stated in Section 900.23 of the Audits Manual, supra:

“The IRS has expressed concern over what it sees as internal abuses due to failures in governance similar to those addressed in the for-profit sector by the Sarbanes-Oxley Act . . .It appears that the IRS plans to administratively apply the basic principles of Sarbanes-Oxley to tax-exempt organizations. . . . The IRS plans to spend a significant portion of its budget increase requested from Congress to restore and reinvigorate enforcement activities, particularly with respect to tax exempt organizations.”

Should any question exist as to the amount of money involved in abusive practices by tax-exempt organizations, consider the following data:

“Recent indictments of partners of a major CPA firm allegedly involved in abusive tax shelters, which in part, included the use of tax-exempt organizations, indicates a major area of IRS concern. The firm itself paid $456 million to the IRS to avoid further action against it. The IRS announced that it expected to collect $3.5 billion in taxes and penalties related to a specific tax shelter scheme. Form 8886 has been modified to require the names and addresses of parties involved in such transactions.”

(Audits Manual, supra, at Section 900.24)

The Audits Manual also identifies common investment fraud schemes that relate to both misappropriation of assets and fraudulent financial reporting procedures used by unscrupulous non-profit entities (in addition to identifying the symptoms of such schemes and the appropriate audit response). See Audits Manual, supra, 302.47. Likewise, the Audits Manual identifies common red flags related to cash fraud schemes. See Section 301.15.

Like the Audits Manual, the NonProfit Controller’s Manual is a nuts and bolts publication designed for accountants and financial officers of non-profit organizations serving to address the impact of regulatory changes, as well as the pitfalls that can occur from a loss of nonprofit status.

“The primary privilege attributable to being any sort of nonprofit organization is freedom from the burden of federal income taxation for revenues earned related to the entities exempt purposes. The states will generally also grant freedom from state income taxes to an organization if it qualifies as exempt from federal taxes. Many states or local jurisdictions will also grant exemption from real property, personal property, sales and use, or other taxes for certain nonprofits, usually Code Sec. 501(c)(3) entities or a subset of Code Sec. 501(c)(3) entities. [fn.] Some nonprofit organizations also receive a postal-rate discount privilege and Code Sec. 501(c)(3) entities are exempt from paying federal employment taxes.”

(NonProfit Controller’s Manualsupra, at Section A1.03)

In other words, a nonprofit entity has the freedom to exist and operate without any of the tax burdens which are routinely placed on every citizen who earns an income, owns property, or buys a postage stamp.

As an example, California Revenue and Taxation Code section 23701 exempts nonprofits from state franchise and income tax. Likewise, nonprofit entities in California are exempt from the payment of real and personal property tax under Revenue and Taxation Code section 214 as long as their operating revenues do not exceed operating expenses by ten percent during a given year. This exemption in effect allows nonprofit hospitals operating in California to purchase and develop realty without any property tax consequences as long as that property is held, at least in theory, for the “community’s benefit.”

The “Community Benefit” Standard

The term, “community benefit” forms the legal underpinning which allows a nonprofit hospital to exist free from tax. However, nonprofit hospitals which fail to conform to this strict standard are little more than illusory charities and legal frauds.

The “community benefit” standard was succinctly defined by Commissioner Everson in his statement before the House Committee on Ways and Means and specifically requires that hospital meet five factors:

  • The governing body of the hospital must be composed of members of the community who have no financial interest in the hospital. Commissioner Everson testified: “More and more, the IRS looks to the independent board exercising its fiduciary duty to operate for the benefit of the community to differentiate the tax-exempt hospital from a for-profit operation;”
  • The hospital must provide an open medical staff. This requires that medical staff privileges in the hospital are available to all qualified physicians in the area, consistent with the size and nature of the hospital’s facilities;
  • The hospital must operate a full-time emergency room and must treat all emergency patients regardless of ability to pay. In fact, all hospitals that participate in Medicare and have an emergency room must treat any patient without regard to that person’s ability to pay;
  • The hospital must admit as patients those able to pay for their care either through private health insurance or through government insurance programs such as Medicare and Medicaid;
  • The hospital’s excess funds must be applied to expansion and replacement of existing facilities and equipment, amortization of debt, improvement in patient care and medical training and medical research.

Summarizing the “community benefit” standard, a nonprofit hospital must operate without any profit motive whatsoever and provide free services to the poor and needy, in turn offering a substantial benefit to the community. Failure to meet this criteria could result in a loss of tax-exempt status.

As stated by the United States Supreme Court in Better Business Bureau of Washington, D.C. v. United States, (1945) 326 U.S. 279, 283: “the presence of a single…[non-exempt] purpose, if substantial in nature, will destroy the exemption regardless of the number or importance of truly…[exempt] purposes.”

Moneychangers In the Temple: Exploiting the Poor & Helpless

So how do such hospitals further their charitable purposes? In some cases, apparently by ignoring their charitable mission and charging the poor and/or uninsured full non-discounted rates which are typically many times over what they charge insured patients, often engaging in price-gouging and aggressive collection tactics worthy of Genghis Khan.

Many of these draconian tactics came to light with the settlement agreed to by Tenet Healthcare as a result of class action litigation which proceeded through the Superior Court of Los Angeles and finally approved by the Court on August 5, 2005.

Although Tenet Healthcare is a for-profit hospital, the settlement documents expose practices which are also used by non-profit hospitals whereby uninsured patients are charged a non-discounted rates (identified in the Tenet litigation as the hospital’s “Gross Charges”) and then allegedly subjecting those patients to aggressive collection tactics. Moreover, in such instances the potential cost of the treatment was allegedly never disclosed to these uninsured patients. Tenet Healthcare agreed, as part of the settlement, to provide its uninsured patients with discounted prices at rates comparable to the hospital’s current managed-care rates for like services. [3]

Similar litigation against non-profit hospitals is proceeding throughout the United States. For instance, in Illinois, the Legal Assistance Foundation of Metropolitan Chicago filed suit against Our Lady of Resurrection Medical Center, claiming that the hospital violated the Illinois Consumer Fraud Act by charging uninsured patients two to four times as much as it charged insured patients. [4]

As this article is being written, Catholic Healthcare West, (“CHW”) a nonprofit hospital chain operating hospitals in California, Nevada and Arizona, is reported to have settled a lawsuit accusing the healthcare giant of overcharging uninsured patients. According to an article written by Dale Kasler and published in the Sacramento Bee on June 15, 2006, CHW agreed to send notices to 700,000 patients notifying them of their eligibility for refunds or rate adjustments related to such overcharging.

Coincidentally, the CHW settlement occurred days after the Consejo de Latinos Unidos, a national advocacy group for uninsured patients, alerted Congressional investigators that CHW had filed a proposed discount program for uninsured patients that would exclude anyone who had or could have qualified for health insurance 24 months prior to when emergency services were rendered which, according to Consejo de Latinos Unidos’ Executive Director, K. B. Forbes, would have excluded a whopping 99% of the uninsured population. As Forbes noted, almost all uninsured patients could technically qualify for expensive insurance plans — assuming, of course, they could afford them! [5]

Contrast CHW’s alleged cutthroat philosophy with the Daughters of Charity Health System which – without the prod of litigation- voluntarily adopted a universal discount policy for uninsured patients whereby the uninsured would be charged no more than what managed care companies pay for the same services. [6]

Readers should note that this is not the first time CHW has been linked to controversy over its billing practices. According to a press release from the Department of Justice dated August 9, 2001, CHW agreed to pay the United States $10,750,000 to settle claims that four of its hospitals in California and Arizona had violated the Federal False Claims Act by seeking federal reimbursement for Medicare and TRICARE (the military health program) procedures which were not actually reimbursable. [7]

Notwithstanding CHW’s legal troubles, an article in the Chronicle of Philanthropy by Harvey Lipman and Grant Williams dated February 5, 2004, disclosed that not only did CHW’s chief executive officer, Lloyd H. Dean, have one of the highest annual salaries of an officer of a charitable entity (reputed to be $1.2 million in 2001), he also was the recipient of additional generosity from CHW in the form of a $2 million interest-free housing loan (which had allowed CEO Dean to acquire a penthouse condominium overlooking the San Francisco Bay). Lipman and Williams also reported that although California law requires nonprofit entities to obtain the approval from the State Attorney General’s office before making loans, the state apparently makes an exception for charities providing mortgages to newly hired officials. [8]

Even more troubling is the fact that, although California enacted the Nonprofit Integrity Act of 2004 (which was intended to transfer many of the financial and accounting requirements of the Sarbanes-Oxley Act of 2002 to nonprofit entities operating in California), hospitals are not subject to the perimeters of this Act.

Apparently the California legislature is not alone in its generosity toward non-profit hospitals and health care operators. According to an excellent article in Mother Jones by reporters Julia Reynolds and David Montero entitled “Doctored Books”, Richard Scuggs (an attorney who has filed a class action against thirteen of the country’s largest non-profit hospital organizations alleging abuses against the poor and uninsured) “contends that the liquid assets of the nation’s non-profit hospital chains could actually exceed the liquid assets of all 50 states.” [9]

Proposed Remedies: The Use of Private Watchdogs, Whistleblowers & the Sarbanes-Oxley Act

One of the mechanisms used by nonprofit hospitals to obtain such levels of wealth addressed by Attorney Scruggs is through the manipulation of joint ventures between nonprofit and for-profit entities to create what Commissioner Everson pointed out to the House Committee on Ways and Means is “effectively a tax-exempt holding company with a charitable grant-making function.” [10]

As a result, Commissioner Everson makes no secret of the fact that the IRS intends to promote “transparency” by exposing required filings by nonprofit entities to public scrutiny. As Commissioner Everson stated before the House Committee on Ways and Means:

“Beginning this year, we are imaging all Forms 990. We put this information on CDs, and provide it to members of the public, including a number of watchdog groups that monitor charitable organizations. These groups post the information on their websites, where it is available to the press and to the public. This process has resulted in increased press and public scrutiny of the tax-exempt sector, which we believe is highly desirable.”

Specifically, in the Audits Manual, supra, the authors identify when a nonprofit’s controlling financial interest in a for-profit entity must be disclosed:

“The basic criterion in determining if a for-profit entity should be consolidated into a nonprofit reporting organization is whether the organization has a controlling financial interest in the for-profit entity. A controlling financial interest is evidenced by ownership of a majority voting interest except when the majority voting interest does not provide control . . . Thus, if the nonprofit organization controls a majority of the voting interest in the for-profit entity (either directly or indirectly), the for-profit entity’s activities should be consolidated into the nonprofit organization’s financial statements.”

(Audits Manual, supra, Section 703.3)

Therefore, a nonprofit organization must consolidate a related for-profit entity in which it has a controlling financial interest. However, a nonprofit organization may only form partnerships, joint ventures, or enter into contracts with private parties to further its charitable interest “so long as the nonprofit organization does not thereby impermissibly serve private interests.” See Redlands Surgical Services 113 T.C. 47, 92-93 (1999), aff’d 242 F.3d 904; see also; Rev.Rul. 98-15, 1998-1 C.B. 718.

In Redlands, supra, the Tax Court held the nonprofit partner lacked either formal or informal control of the partnership sufficient to ensure the furtherance of charitable purposes. The Ninth Circuit affirmed the Tax Court, holding that relinquishing “effective control” of partnership activities to the for-profit partner impermissibly serves private interests. 242 F.3d at 904.

In a subsequent case, the Fifth Circuit Court of Appeal in St. David’s Health Care System v. United States, 349 F.3d 232, 236-237 (5th Cir. 2003), held that a “non-profit should lose its tax-exempt status if it cedes control to the for-profit entity.” Id. at p. 239. Moreover, the Court held that a determination of whether a nonprofit entity that enters into a partnership with a for-profit entity operates exclusively for charitable purposes is not limited to “whether the partnership provides some (or even an extensive amount of) charitable services.” Rather, the nonprofit partner must also have the “capacity to ensure that the partnership’s operations further charitable purposes.” Id. at p. 243.

The Audits Manual, supra, notes that “nonprofit organizations are becoming increasingly involved in real estate transactions, either independently or as part of joint ventures with for-profit organizations.” Section 903.22. Indeed, many nonprofit hospitals are involved in the acquisition and development of real property that, for all intents, allows these entities to act as tax-exempt redevelopment vehicles, transforming vast tracts of real estate into their public image. However, in reality, such activities often produce income from activities that are actually “unrelated” to the supposed charitable mission of the nonprofit organization which gave rise to its tax-exempt status in the first place (in turn producing “unrelated business income).”

The Audits Manual also notes at Section 903.3 that “[t]he organization’s tax-exempt status may be jeopardized if too large a portion of an organization’s revenue comes from unrelated business income” (although at present, neither the Tax Code nor the IRS defines what constitutes too large a portion of total revenue). Nevertheless: “[t]he key to successful retention of tax exempt status is clear control of [such ventures with for-profit entities] by the nonprofit organization. The IRS has indicated that such evidence of clear control would ideally include documentation (e.g. a written acknowledgment or “agreement”) that the charitable purposes of the tax-exempt organization are protected within the joint venture and that the organization continues to operate in accordance with its mission.” (Section 903.22.)

What is also becoming increasingly clear is that the IRS intends to engage in stringent enforcement actions — including the use of private “watchdogs ” — to monitor the activities of nonprofit entities including nonprofit hospital chains. In this regard, Senator Charles Grassley, Chairman of the U.S. Senate Committee on Finance, recently acknowledged that the IRS’s Informants’ Rewards Program is due for an overhaul and that the IRS can no longer afford to treat whistleblowers, according to Senator Grassley, “like skunks at the picnic.” California’s Franchise Tax Board recently proposed a plan similar to the Informants’ Reward Program, offering confidential informants as much as ten percent of unpaid collected taxes. Such programs, if government agencies are willing to actively use them, provide powerful financial incentives for whistleblowers and watchdogs to monitor the activities of nonprofit entities.

The Sarbanes-Oxley Act (“Sarbanes-Oxley”) was enacted into law in 2002 as a result of the collapse of Enron and WorldCom, which disclosed the worst accounting and financial reporting scandals in decades. As David E. Hardesty makes clear in his Practical Guide (“Guide“) to corporate governance in the wake of this legislation, management is intimately involved in the implementation of Sarbanes-Oxley:

“The Act and the SEC regulations require management to report on the effectiveness of internal control over financial reporting. This means that management must document internal controls that ensure the proper recording of financial information and the safeguarding of corporate assets, test these controls, and issue a report to investors regarding the effectiveness of controls. Independent auditors are then required to examine management’s documentation, testing and evaluation, and give an opinion as to whether they agree with management’s assessment. In addition, auditors must independently assess and express an opinion on the effectiveness of internal control over financial reporting.”

(Guide. Section 10)

Even though Sarbanes-Oxley presently only applies to publicly traded corporations, Commissioner Everson and the IRS clearly intend to request independent audits of the accounting systems of nonprofit hospital chains in the future. As the Guide makes clear:

“Several of the criminal provisions either created or stiffened by Sarbanes-Oxley apply directly to non-profits. In addition, the GAO has issued new standards for government audits that incorporate Sarbanes-Oxley concepts . . .The provisions of the Act that apply specifically to nonprofits are those relating to obstruction of justice, fraud, and whistleblowers. Nonprofits can be subject to federal prosecution under these sections when they receive federal funding.”

(Guide. Section 1302)

Moreover, the IRS is also moving aggressively to enforce sanctions against the private inurement of nonprofit assets by insiders: “Thus far, the IRS has announced the levying of tens of millions of dollars in fines related to inurement, primarily related to excess compensation, and the loss of exempt status for some nonprofit organizations” Audits Manual, Section 901.4. Analysis of excess benefits transactions are also well covered in the Nonprofit Controller’s Manual at Sections B9.10[11][b].

It is also becoming apparent that the IRS intends to provide a portion of its resources to private individuals and potential whistleblowers and is engaged in cooperative efforts with organizations such as the National Association of State Charitable Officials (NASCO) in order to reduce abuses of the non-profit tax exemption by health care providers. For instance, as the result of a federal grant, NASCO has completed a national database, NASCONet, providing in depth information on myriad tax-exempt organizations. See Audits Manual, Section 900.2.

Additional Remedies

Apparently, many nonprofit hospitals have forgotten that the benefits of their tax-exempt status come with a heavy price. Over fifty years ago, the California Supreme Court held that all the assets of a corporation organized exclusively for charitable purposes must be deemed to be impressed with a charitable trust by virtue of the express declaration of the corporation’s purposes….” See Pacific Home v. County of Los Angeles (1953) 41 Cal.2d 844, 852.

Basically, the assets of a non-profit hospital do not belong to the board members administering that hospital, nor to any of its employees; rather, those assets belong to the people serviced by that organization and may be used solely to further the charitable purposes of the non-profit entity.

Thus, in Queen of Angels Hospital v. Younger, 66 Cal.App. 3d 359 (1977), the California Court of Appeal held that a nonprofit hospital must abide by the strict letter of its charitable purpose and refused to allow the hospital corporation to use the proceeds it earned from a lease with a for-profit entity. The court held that the hospital must remain true to its charitable mission which, in that instance, was solely to operate a hospital.

Therefore, in those worst-case scenarios which are now slowly coming to light, courts and the public have a range of remedies available to them to combat such abuses, remedies which include the imposition of a constructive trust, the appointment of a receiver, and the removal of the nonprofit’s board (in addition to specific statutory remedies which may be available in different states).

What all this tells us is that the IRS and the United States Courts are sending a series of clear messages to nonprofit abusers of the tax system, and specfically nonprofit hospitals. And their message? Entities profiting by manipulation and exploitation of the American taxpayer will be exposed to both litigation and possible criminal prosecution in the years to come.

These manuals by Thomson-RIA and Warren, Gorham & Lamont are impeccable resources which detail the taxation requirements as related to nonprofit filers, the information imparted in clear and comprehensive terms. For decades, Thomson-RIA has been synonymous with the U.S. Tax Code, as professionals have turned to the publisher for the most up-to-date analysis of these ultra-complicated topics. Accordingly, each of these manuals is multi-dimensional in scope, serving a multitude of audiences with equal precision (including tax attorneys, corporate auditors, CPAs and graduate-level Accounting instructors charged with preparing student readers for careers in American business whereby they will be responsible for insuring tax compliance on the part of a corporate entity).

Footnotes

[1] The full text of Commissioner Everson’s written statement before the House Committee on Ways and Means can be found on the internet at nacua.org/documents/Hearing_TaxExemptHospitals.asp.

[2] The full text of Commissioner Everson’s written statement before the Senate Committee on Finance can be found at irs.gov/pub/irs-tege/metest040505.pdf.

[3] The complete settlement documents pursuant to this litigation can be found on the world-wide web at this link-location: hagens-berman.com/tenet_healthcare_settlement;jsessionid=aI3EZIt5rVG_.

[4] The Care Gap: Unequal Treatment of the Uninsured at Resurrection Hospitals (AFSCME Council 31, May 2005) isreferenced to a June 12, 2006 article from the PR Newswire Association.

[5] See insurancenewsnet.com/print.asp?n=1&lnid=395385633.

[6] hispanicbusiness.com/news/news_print.asp?id+25848.

[7] View the full text of thisat usdoj.gov/opa/pr/2001/August/391civ.htm.

[8] Find the Lipman and Williams article on the web here: philanthropy.com/free/articles/v16/i08/08000601.htm.

[9] Interested readers can access the entire text of this article by going to motherjones.com/news/update/2004/06/06_300.html.

[10] A highly informative website, wherethemoneygoes.com, examined the Federal Tax Form 990 for one nonprofit entity, Stanford Hospitals and Clinics (“SHC”), discovering that SHC has a 100% interest in Menlo Health Alliance, Inc. (“MHA”), a wholly owned California taxable corporation, further documenting that both the President and CFO of SHC are also officers in MHA. Moreover, their salaries as officers of MHA are paid by the nonprofit entity. According to this website, Stanford Hospitals and Clinics accumulated over one-half billion dollars in cash and marketable assets from year end 8/3/03.

Order each of these titles from amazon.com, or go to riathomson.

This article is intended as a general discussion of relevant principles of law and is provided for informational purposes only. If the reader has questions about specific situations, he/she should consult a duly licensed and active member of the bar in their area of residence. All cases and/or statutes cited in this article should be read directly by the reader as to holding or content. The description, analysis and interpretation of the cases and legal principles discussed are the author’s own and the reader may not rely upon them in place of reading and evaluating the material directly.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

Thomson South-Western & West’s Federal Taxation

WEST’S INTERNAL REVENUE CODE OF 1986 AND TREASURY REGULATIONS: ANNOTATED AND SELECTED. 2006 edition. (From West’s Federal Taxation Series). James E. Smith. Thomson-Southwestern.

Even accountants find the Internal Revenue Code cumbersome to navigate and difficult to decipher — an avalanche of data that requires keen attention to every last detail. Moreover, for students new to the discipline, the prospect of researching elements of the I.R. Code can be absolutely overwhelming, with clusters of information coming at them in rapid-fire succession.

In West’s Internal Revenue, James Smith (an esteemed Professor of Accounting at the College of William and Mary) has compiled an alternative text to the massive Code and Regulations volume, with Smith’s treatise specifically designed to provide an overview of the Code in a direct and clear-cut format. Here, Smith uses a variety of features, including sharply written editorial summaries, as a means to cut to the core of the code selections which have been stitched together to build this text.

The goal of West’s Internal Revenue is to serve the student reader by teaching them to analyze the tax code and interpret its myriad intricacies. To this end, Smith has taken the I.R.Code of 1986 and used it as a basis to demonstrate how to extract relevant information and then apply to an individual tax problem. Major topic areas covered in the text include income taxes, estate and gift taxes, employment taxes, excise taxes, procedure and administration, and an overview of the Joint Committee on Taxation. There is also a well-developed glossary specifically designed to broaden the reader’s general understanding of tax terms.

In addition to this compilation of raw data, Smith teaches us here that it’s not enough to be able to reference a particular code section; instead, an accountant must know how to process the information and be able to link it to the application of other economic and legal principles. Accordingly, Smith has constructed his “Editorial Summaries” to teach the student reader how to interpret select sections of the I.R.Code, in turn helping young minds gain firm insight into the tax code’s often complex and convoluted language.

All in all, West’s Internal Revenue makes for a cost-efficient and easy-to-use manual on the I.R.Code of 1986, with inclusion of the most up-to-date information on the Jobs Creation Act of 2004, the Working Families Tax Relief Act of 2004 and the Jobs and Growth Tax relief Reonciliation Act of 2003 – all major areas of importance for accountants and tax attorneys as we proceed toward the year 2005 filing deadline.

Recommended to instructors of Federal Taxation courses as a in-class text that strives to bring students a clearer understanding of the Internal Revenue Code. Further recommended to law libraries as a general reference text.

by John Aiello

WEST FEDERAL TAXATION. INDIVIDUAL INCOME TAXES. 2006 edition. William H. Hoffman, Jr. James E. Smith. Eugene Willis. Thomson. South-Western.

This title is representative of the other West entries in the Federal Taxation series — a heavy hitting and comprehensive tome that explores the whole of its topic in solid and complete terms.

The fact of the matter is that the complex nature of the U.S. tax system puts the onus on the tax-payer to stay current with the material. In addition, the Tax Code is in constant flux, with code sections changing sometimes on a yearly basis. The long and the short of it is that it takes great focus to move through the regulations of our taxation system, and no one can do it without a dependable resource to lean on.

The 2006 edition of Individual Income Taxes is just the text to accomplish this, for it dissects the core of the tax code in a manner that is conducive to relatively easy access by the reader. As noted by the title, this volume specifically focuses on taxation matters as related to the individual, including information on the American Jobs Creation Act of 2004 which will be of major interest to most readers.

However, just as important as the broad-based topic coverage, are the extra features included here. The newest edition of TurboTax Premier is now a part of this West release, and it is simply the best tax software currently available on the market (as TurboTax contains all applicable IRS forms and salient direction on how to accurately prepare your return and maximize your savings). In addition, readers receive on-line access to both TaxBrain tax preparation software and RIA’s Checkpoint student edition on-line Tax Research Database — two invaluable tools that are aimed at preparing student-learners to hone their research skills while building a relationship with the American system of taxation.

This selection comes highly recommended to instructors of Federal Taxation courses as a primary class text — truly notable for its depth, clarity and organization. Additionally, this volume has relevance to the general reader who does his own tax return: Given the hourly rate charged by tax preparation professionals, this text will pay for itself immediately.

Of Related Interest

WEST FEDERAL TAXATION 2006 – COMPREHENSIVE. With RIA and Turbo Tax features. In the 29th Edition. Eugene Willis. William H. Hoffman, Jr.. David M. Maloney. William A. Raabe. Thomson. South-Western.

In addition to Tax Code regulations that impact the individual, this pace-setting volume includes the specific code sections that apply to the corporation — with the same extra features noted in the preceding review coming together to transform it into a multi-dimensional resource with varied aspects and levels.

Appropriate for instructors of Federal Taxation courses as a primary class text. Further recommended to the practicing CPA in both the private and corporate sector for its comprehensive coverage of the most recent changes to the Tax Code.

WEST FEDERAL TAXATION Of BUSINESS ENTITIES. With RIA and Turbo Tax features. 2006 Edition. Eugene Willis. James E. Smith. David M. Maloney. William A. Raabe. Thomson. South-Western.

Here, the authors switch gears somewhat, looking at taxation from the point-of-view of the business entity itself, with a strict emphasis on tax concepts rather than the individual requirements of the Tax Code. Thus, this text is directed at ways the taxpayer/business owner can make long-range decisions that incorporate relevant tax issues into their thinking: the idea being to plan in advance for tax consequences so that there are no unmanageable surprises come the yearly filing deadline.

Appropriate for CPAs in both the private and corporate sector because of its crisp and sharp style and because of the authors’ priestly knowledge of their subject. Would also prove useful to the general reader/business owner who might benefit handsomely by a reading volume that stresses the necessity of developing long-term tax-planning strategies.

In addition to the recommendations previously noted at the conclusion of each review, the West Federal Taxation Series is imperative to both law schools and University-level libraries which support advanced accounting programs: this is a wide-sweeping reference collection and its long-term research value is beyond question.

Order each of these titles from amazon.com.

Attorney Alerts: Focusing on RIA-Thomson

From the Editor: This column is comprised of reviews of legal and accountancy texts published by Warren, Gorham and Lamont (from the Thomson-RIA series), and examines these books in relation to important topics which will likely challenge legal practitioners over the next several decades.

Sidestepping Minefields: Attorney Fees After Commissioner v. Banks

On January 24, 2005, the United States Supreme Court issued its decision in the companion cases, Commissioner v. Banks and Commissioner v. Banaitis (“Banks“), holding that any portion of a recovery paid to the attorney as a contingent fee on the basis of a private contingent-fee contract is includable in the client’s gross income.

As a result of the ruling in Banks, any portion of attorneys fees determined to constitute a contingency fee or in which the client is determined to have an ownership interest is taxable to the client.

Moreover, if the alternative minimum tax applies, legal fees cannot be deducted at all. The Court noted that although the American Jobs Creation Act of 2004, enacted in October, 2004, contains a section ending the double taxation of contingent fees, the new provision appears to be prospective only and also only covers specific laws, principally employee discrimination and civil rights act violations listed in the legislation.

Obviously, this case will have a huge impact on awards which include punitive damages since the entire damage award is potentially includable in the taxpayer’s gross income. In cases where attorneys fees often exceed the damage award, a client may be exposed to a tax liability which exceeds the amount of the award. Attorneys who pursue cases involving the potential for punitive damage awards should clearly identify the potential for taxpayer exposure in their fee agreement.

Caveat: The fee paid to the taxpayer’s attorney in Banks was calculated solely on the basis of a private contingent fee contract absent a court-ordered fee award. Since there was no indication that the fee paid to the attorney was in lieu of statutory fees, the Court clearly left open the question of whether court awarded fees under a “fee shifting” statute such as California’s Private Attorney General Act, would be includable in the taxpayer’s gross income. Unfortunately, these issues will be left undecided until which time a future case arises to test them.

Those who have no clear idea what constitutes the “alternative minimum tax” should consider purchasing the WG&L TAX DICTIONARY by Richard A. Westin (2004 Edition, Thomson-RIA), another of RIA’s comprehensive texts for the working professional providing an understandable summary of terms relating to taxation issues. This book is standard-setting in both scope and breadth of coverage, with in depth analysis of myriad tax topics which are of deep relevance to both legal and accountancy professionals.

Insurance “Trusts”

I.

This is becoming a common marketing scheme: An insurance company acting as a trustor creates a trust instrument naming a bank as the trustee. The bank’s only duty under the trust agreement is to hold a health or disability insurance policy as the “master” policyholder. However, the insurer continues to retain all duties under the policy and continues to set and collect premiums. Policyholders who purchase the health insurance policy are automatically enrolled in the trust, but never actually see the policy. Instead, these policyholders receive certificates which expressly state that the document is not a policy of insurance. This appears to be a scheme introduced by the insurance industry to avoid having to present state mandated offerings to their policyholders. For more in depth information, read former Georgia Insurance Commissioner Tim Ryles’ informative article, Illusory Insurance Trusts and the Deceptive Marketing of Health Insurance.

II.

Clearly, these types of insurance trusts may simply be frauds on the consumer which state insurance regulators unfortunately continue to ignore.Perhaps such regulators should quickly consider purchasing a copy of Federal Income Taxation of Corporations and Shareholders by Bittaker and Eustice (Seventh Edition, Warren, Gorham & Lamont). This nationally recognized treatise provides a wealth of information to guide us through the complicated world of insurance products, and attorneys would be well-served to study this information carefully. For example, the authors point out that a business trust will only be recognized by Federal taxing authorities if ” the required business purpose may be discerned from the trustee’s powers to develop or diversify the trust’s assets, even if those powers are not exercised.” (§2.03 (2), p. 2-18). However, Dr. Ryles points out in his article that courts are now beginning to recognize that such insurance “trusts” are merely clever artifices which allow the insurer to maintain total control of the trust fund and without actually ever having to deliver its customers an insurance policy. In fact, the Maryland Court of Appeals recognized this fact in Guardian Life Insurance Company of America v. Insurance Commissioner of the State of Maryland, et al. (cited in Dr. Ryles’ article), stating: “In actuality, because Guardian is in total control of the trust fund, the trustee is at best, an entity without substance, and therefore cannot protect its ‘policyholders’.” Bittaker’s and Eustice’s text covers Federal Corporate Taxation regulations in great detail, and builds a vital resource for both attorney and accountant.

Death Spirals

Another scam becoming increasingly common is the practice by which health (and especially long-term care) insurers sell a finite number of policies at an affordable or “teaser” price. By closing the sale of such policies, the insurer also immediately closes that particular pool of risk. Once this has occurred, premiums are then raised – often resulting in the healthier members leaving the pool in search of a cheaper product. Those who cannot afford to pay these significantly higher rates also leave the pool and just allow their policies to “lapse” (and leaving the remaining cluster of policy holders to pay the higher premiums). Upon close review, once comes to see that this is an insidious and coldly calculated practice that looks to maximize the premium dollar before the potential for risk/liability has materialized.

Any consumer who might be considering purchasing a policy of long-term care insurance should first review Professor Allen Kanner’s testimony which was rendered before Congress, as Mr. Kanter spoke directly to the massive premium increases inflicted on his clients in North Dakota by long-term care insurers.( See U.S. Senate, Special Committee on Aging. 2000. Long-Term Care Insurance: Protecting Consumers from Hidden Rate Hikes, testimony by Allen Kanner, Hearing before the 106th Congress, September 13, 2000.) This issue is of paramount importance to retirees on fixed incomes, as some individual long term care products have had premiums increased by 45% or more in less than ten years — and with the approval of state regulators. One must assume these same regulators were out for coffee when the rates were originally proposed and approved….

Asset Protection & the Looming Health Care Crisis

America’s aging citizenry has virtually no practical comprehension of the programs available to assist them in paying medical expenses or of the limitations of those programs. (These primary programs being Medicare and each state’s version of “Medicaid”).

Medicare is a federal health insurance program primarily intended for all persons who are 65 and over and eligible for Social Security benefits or who are federal employees. Medicare requires the payment of monthly premiums, deductibles and coinsurance and will only pay for “skilled nursing care” ordered by a physician at a skilled nursing facility. Medicare will not pay for any benefits for individuals who require only “custodial care”, i.e., assistance with daily activities. Although most people are under the impression that Medicare supplements cover anything not covered by Medicare, most supplements will only pay for skilled nursing care and do not cover custodial care.

Each state version of Medicaid (California’s version is called Medi-Cal) are joint federal and state programs originally intended for individuals with low incomes and limited assets, i.e., the state’s impoverished. In order to meet these impoverishment levels, applicants must intentionally impoverish themselves by spending down their assets to meet the state’s eligibility criteria. This cannot be legally accomplished by making gifts unless those transfers are made years before the applicant actually needs to apply, as the state can “look back” to determine when any gifts or transfers were made which would affect eligibility.

Given the sorry state of California’s finances, it should come as no surprise that the Department of Health Services has a an estate recovery program which includes the power to file liens on any real and/or personal property of elderly Medi-Cal patients (including their homes), in order to recover medical bills (including hospital and nursing home costs).

As a result of the burden on each state’s limited Medicaid resources, not to mention the bad press incurred in filing Medicaid liens which force the sale of Grandmother’s house, several states have enacted “partnership” programs with selected insurers attempting to provide incentives to individuals to provide for their own future medical and health care needs.

In such a scenario, an individual purchases a “partnership policy” (the partnership is between the state and the insurer) of long term care insurance which provides that if the policyholder requires long term care and uses up the total coverage amount of the plan benefits, the policyholder will be allowed to shelter, for purposes of Medicaid, an amount equal to the amount of benefits paid out under the plan. This dollar for dollar feature allows individuals needing long term care to qualify for Medicaid coverage without having to spend down their assets to poverty level. In effect, the policyholder can qualify for Medicaid and still shelter assets equal in value to the policy proceeds.

However, consumers should proceed with a word of caution: None of the slick brochures I have reviewed advertising the features of the partnership policy specifically state that the insurer will always review the applicant’s medical records at the time the application is made. For instance, the CalPers Partnership Plan 2002 booklet for all California public employees, schoolteachers and retirees states: “We will underwrite your application by reviewing one or more of the following: the information submitted or your application, an attending physician’s report, or medical records, a telephone interview, or an in-person assessment. Despite the fact that the applicant is required to sign an authorization for release of his or her medical records, the insurer has the option of choosing not to rely on an applicant’s medical history, but merely on the information provided on the application – -which could set the stage for big problems down the road (such as the practice of post-claims underwriting).

Post-Claims Underwriting

This term should be in the lexicon of every consumer who has purchased (or is thinking about purchasing) life, health, disability or long-term care insurance. Post-claims underwriting is the practice of accepting an applicant for coverage without the insurer first performing appropriate underwriting. Basically, the insurance company accepts the applicant based on the information provided on the application, takes the premium dollars, then decides on whether or not the insured is actually covered for benefits only after a claim has been made.

Post-claims underwriting has been cogently described by the California Supreme Court as the insurer’s “postponing its investigation of insurability until after the assertion of a ‘significant’ claim.” Barrera v. State Farm Mut. Automobile Ins. Co. (1969) 71 Cal.2d. 659, 663. In other words, although the insurance company may request underwriting information at the time an application is made, the insurer intentionally does not assess the applicant’s eligibility for insurance until after the insurance has been purchased and the policy issued. Instead, the insurance company will rely on its post-loss investigation and begin ” ‘look[ing] for all the things in the application that (it) might be able to dig up … to rescind the policy.’ [cite] …. [R]ather than processing the claim pursuant to the appropriate coverage provisions of the policy, [the insurer] endeavors to avoid payment by engaging in an eligibility determination that should have been completed before the policy was issued.” Thomas C. Cady and Georgia Lee Gates, “Post Claim Underwriting” 102 W. Va. L. Rev. (Summer, 2000) (“Cady & Gates”), pp. 809, 830.

The practice of post-claims underwriting is universally condemned and, at last count, was specifically prohibited by statute in 42 states (including California). California’s statutes deserve special mention since they contain not only a prohibition against post-claims underwriting, but also define the practice. California Insurance Code §10384 states: “No insurer issuing or providing any policy of disability insurance covering hospital, medical, or surgical expenses shall engage in the practice of post-claims underwriting. For purposes of this section, ‘post-claims underwriting’ means the rescinding, canceling, or limiting of a policy or certificate due to the insurer’ s failure to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application before issuing the policy or certificate.” (Emphasis added). See also: California Heath & Safety Code §1389.3 which contains similar language relating to health care service plans and Insurance Code section 10232.3 (d) relating to long-term care insurance.

As a result of the enactment of Insurance Code § 10384, insurers selling disability policies in California are prohibited from rescinding or canceling a policy if the insurer failed to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application. Simply, it is legally insufficient for an insurer to argue that it did not complete its medical underwriting (or failed to perform any medical underwriting whatsoever) because the insured’s application for insurance was a “clean application”, i.e., an application which fails to disclose any significant medical history. The “clean application” argument is commonly used by the insurer to avoid the prohibitions against post-claim underwriting. In effect, the insurer argues that it was not obligated to review an applicant’s medical history since the application itself did not disclose any reason to do so.

However, given a literal reading of Insurance Code section 10384, an insurer selling disability or long-term care insurance in California must perform more than a cursory investigation by the insurer’s underwriters prior to issuing the policy. By specifically requiring that an insurance company “complete medical underwriting” as part of its underwriting process,California has apparently imposed a duty on insurers selling long-term care and other disability policies to conduct an independent investigation of insurability, including medical underwriting, before issuing a policy and that insurers have a statutory obligation to determine insurability through its underwriting process at the time the policy application is made, not after the claim is filed. Thus, an insurer selling any form of disability insurance who fails to complete medical underwriting at the time the application is submitted and resolve all reasonable questions arising from either the contents of the application or the circumstances surrounding the submission of the application is estopped from evaluating the risk after a claim has been filed.

If an insurer were allowed to limit its investigation solely to a review of the application to determine if the applicant possessed any significant medical history, the insurer could collect premiums for years while postponing its investigation of insurability and retain its right to rescind until after a claim is made. “Given sufficient impetus —such as chronic illness — it is likely that any health insurer will be able to find some detail within an insurer’s medical history that, post-hoc, amounts to misrepresentation.” Cady & Gates, supra, p. 858.

As the Mississippi Supreme Court recognized some years ago, post-claim underwriting also harms policyholders by leading them to falsely believe that they are insured when in fact they are not and thus, depriving them of the opportunity to look elsewhere for an insurer willing to write coverage. As that Court stated:

“If an insured is not an acceptable risk, the application should be denied up front, not after a policy is issued. This allows the proposed insured to seek other coverage with another company since no company will insure an individual who has suffered serious illness or injury.” Lewis v. Equity National Life Insurance Company (Miss. 1994) 637 So 2d 183, 188-189.

Likewise, the California Supreme Court stated: “An insurer may not accept premiums for two years and investigate a possible defense only after the beneficiaries file a claim. ” Amex Life Assurance Company v. Superior Court (1997) 14 C. 4th 1231, 1243.

Now, let’s review again the language in that slick CalPers brochure advertising the sale of its long-term care insurance product in the context of the California prohibitions against post-claims underwriting. Despite those prohibitions and the fact that this offering is made to one of the most protected classes — the California bureaucrat —, the insurer underwriting the CalPers offering allows itself the option of limiting the scope of its review to the “information submitted on your application . . .” Further, despite the fact that the CalPers application requires a medical release from the applicant, inferring to any reasonable person that the company intends to medically underwrite the policy, applicants applying for that policy, like so many others, may be underwriting their own applications if the company chooses not to review their medical records.

These types of practices are potentially deceptive and should be treated as such by state regulators. However, until a sustained public outcry reaches their regulatory ears, consumers must realize that they are on their own to navigate these waters and should insist that their medical records be reviewed at the time the application is submitted. At the very least, an applicant should obtain a complete copy of his or her medical records and voluntarily submit those records together with the application for insurance by registered mail to either the company or the agent soliciting the business. This will provide a tangible trail of evidence in the event a claim is subsequently made and the company attempts to allege that the applicant made a material misrepresentation on his or her application concerning past medical history.

Legislatures and courts are beginning to recognize that the applicant for insurance may be in a markedly disadvantaged position. As part of the consumer protections in the sale of long term care insurance, California has imposed an independent and non-delegable duty of good faith and fair dealing and a duty of honesty on both the insurance company and the insurance agent. Interestingly, at least one appellate court has also held that the duty of care in the preparation of an application for insurance also extends from the agent to the insurer. Century Surety Co. v. Crosby Insurance, Inc. (2004) 124 Cal. App.4th 116.

Insurers engaged in post-claims underwriting might also want to consider their exposure for violation of the Health Insurance and Portability Act of 1996 which makes any fraud perpetuated upon a public or private payer a federal criminal offense. Courts are slowly beginning to recognize that corporate practices such as post-claims underwriting inevitably will transfer a portion of its business obligations to both Federal and state Medicaid programs and slowly bankrupt these public safety nets. See United States v. Lucien (2d Cir. 2003) 347 F.3d 45.

Estate Planning & Wealth Preservation

I recently reviewed the student’s edition of the text, Estate Planning and Wealth Preservation by Kathryn G. Henkel, a partner in the firm of Hughes & Luce, Dallas Texas. This is another of the comprehensive texts for both students and professionals published by Thomson-RIA and is particularly noteworthy since the author provides refreshingly straight talk rarely seen in such professional texts.

For example, many practitioners are aware that family limited partnerships have been used as a mechanism to limit the tax exposure on real property assets other than the family residence, especially when liquidity is a problem. According to Henkel, the Internal Revenue Service is quite unhappy with the discounts which can result on transfer of partnership interests – even when normal rules of valuation are applied. In a section entitled “Thoughts on the IRS Anti-Family Partnership Mission“, Henkel writes:

“When you get right down to the nitty gritty, the reason that some folks at the IRS are unhappy with the documents that can result on transfers of partnerships is that they, in essence, do not like the rules of valuation which assign a value to each gift, as an individual interest without regard to any other interest, and which assign a value to both gifts and transfers at death without regard to family relationships or other holdings of the transferee . . . The IRS is approaching the family partnership issues by applying the normal rules to selected extreme fact situations and making moral outrage arguments, as well as by applying somewhat strained interpretations of Sections 2703 and 2704.”

Henkel’s chapter entitled Advanced Maturity, Disability, and Serious Illness also deserves mention and should be required reading for any practitioner dealing with elder issues. Although approaching these issues from a tax standpoint, Henkel offers a wealth of practical information concerning relevant Medicare and Medicaid issues, as well as health care and disability documents such as medical powers of attorney. In addition, the author is careful to touch upon the emotional aspects of planning for the elderly, offering pertinent direction on steps attorneys should take in preparing older clients for these difficult life decisions.

The Perfect Storm: Applying the Sarbanes-Oxley Act of 2002

The Sarbanes-Oxley Act (known in American business and legal circles by the sobriquets, “Sox” and/or “Sarbox”) was enacted in response to the Enron implosion as a mechanism to curb abuses and outright fraud in American business.

Sarbanes-Oxley contains both civil and criminal penalties and applies to all United States publicly traded corporations, all non-public companies whose debt instruments are publicly traded and all foreign companies registered to do business in the United States. The potential impact of Sarbanes-Oxley on companies, both foreign and domestic, is immense -especially since various provisions of the law were intended to place their directors and officers in personal peril for specific illegal conduct.

In the massive tome, Handbook of Accounting and Auditing By Barry J. Epstein (Thomson-RIA, 2005), the author reviews the impact of Sarbanes-Oxley on auditors pursuant to Section 404 of the Act. The author states that “[s]ection 404 also requires that every registered public accounting firm . . That prepares or issues an audit report on a company’s annual financial statements to attest to, and report on, the assessment made by management.”. From here, Epstein goes on to identify the precise type of audit reporting required under the Act, including the identification of material weaknesses in the company. Epstein points out that although an expansive view of the audit function has been in effect since the enactment of the Federal Corrupt Practices Act in 1977; however, according to the rules adopted under the Act:

“Management is precluded from determining that a company’s internal control over financial reporting is effective if it identifies one or more material weaknesses in the company’s internal control over financing reporting, For purposes of the final rules, the term, ‘material weakness’ has the same definition under GAAS [Generally Accepted Accounting Standards] and attestation standards. The final rules also specify that management’s report must include disclosure of any ‘material weakness’ in the company’s internal control over financial reporting identified by management in the course of its evaluation.”

Make no mistake – this is dense stuff. However, the effect of Section 404 and the rules adopted for its enforcement mean that a company and its primary officers can no longer rely on canned audits which supply false information to regulators and shareholders (all with the obvious effect of falsely inflating the values of those companies, i.e, “cooking the books”).

In the treatise, Internal Auditing Manual by Stephen W. Head (Warham Gorham and Lamont, 2004), the author — who is responsible for publishing professional guidance standards followed by over 30,000 practitioners worldwide — identifies a laundry list of fraudulent activity over the last twenty years from the savings and loan scandals (Remember Charles Keating?), to the junk bond securities frauds which earned a $650 million dollar fine for Drexel, Burnham, Lambert (as well as an equivalent fine and jail sentence for Michael Milkin), to the financial reporting frauds by publicly held companies such as Miniscribe Corporation and Phar-Mor, Inc., the latter resulting in losses in excess of $1 billion to investors.

As Head notes, “[s]uch financial frauds and irregularities as these draw much publicity and attention. But they are far from representing the entire extent of fraudulent activity. In the health care filed alone, fraud and abuse are estimated to exceed $50 billion each year . . .”

A nuclear devise buried within the Sarbanes-Oxley Act — and interestingly, a provision which has received comparatively little press — is Section 304 of the Act. Section 304 provides exposure for potential civil penalties designed to weaken the bowels of every CEO and/or CFO of a publicly traded company who is aware of or has allowed material information regarding that company to be hidden from its shareholders, regulatory authority, and/or traders of its stock. Section 304, which is limited solely to the CEO or CFO of such companies, requires those officers to disgorge any personal profit received which resulted from such nondisclosure in connection with financial reporting requirements.

Let’s take a hypothetical situation where Section 304 might be used to disgorge profits acquired by the primary corporate officers. Let’s pretend that a CEO of a publicly traded insurance company purchases a losing and closed book of business from another insurer. The due diligence report discloses no information regarding the unprofitablity of the product, and the CEO does not disclose on the company’s annual statement any information regarding the potential for massive losses from claims which can be anticipated in the future. The purchase of this book of business provides the company with an increased market share for the short term, and both the CEO and CFO of the company acquire substantial stock options as part of their compensation package. Stock values of the company increase and both the CEO and CFO exercise their options and sell their stock for a massive profit, all before the losses resulting from the acquisition begin to materialize.

Corporate patriarchs— and the lawyers they hire — are well aware of the potential for disgorgement (as well as the defenses available to them due to Congress’s failure to define terms in the act such as “misconduct” or “profits,” further neglecting to identify whether this type of corporate misconduct is limited to simple negligence or requires some level of gross misconduct). Moreover, there is some question whether Section 304 penalties could violate the “Excessive Fines Clause” which require that any penalty levied must be proportional to the gravity of the defendant’s offense. See United States v. Bajakajian (1998) 524 U.S. 321, 337.

At this juncture, Sarbanes-Oxley remains potent, but untested. As Stephen Head bluntly points out in his excellent overview of the Act:

“A skeptic could observe that almost nothing can stop dishonest management from circumventing the best-intended system of internal controls. Publicly held companies wishing to avoid the rules could go private. Greed will still be present at some companies. Pressure to maximize profit could still cause people to cut corners. At a minimum, however, the Sarbanes-Oxley Act has gotten the attention of the business community. At best, a new era of transparency has begun.”

Life After Campbell

In State Farm v. Campbell (2003) 538 U.S. 408, the United States Supreme Court held that the amount of any punitive damage award must be reasonable and proportional to the amount of harm suffered by the plaintiff, and State courts were quick to seize upon the strictures mandated in Campbell.

For instance, in Diamond Woodworks v. Argonaut Insurance (2003) 109 Cal.App. 4th 1020, a California Appellate Court held that “anything exceeding [a] four-to-one [ratio] would not comport with due process and Campbell.” (109 Cal. App. 4th at 1055.) Despite a wealth of articles outlining mechanisms to avoid the caps on punitive damages addressed in Campbell, attorneys should consider coming to grips with the plain fact that giant punitive damage awards enriching one individual Plaintiff leaves a bad taste in the mouths of both appellate courts – and the public.

As a result of the United Supreme Court’s decisions in Campbell and Commissioner v. Banks (reviewed above), Plaintiffs’ attorneys will have to closely evaluate both the facts of a potential case as well as the contents of their fee agreements before expending huge amounts of time, money and resources.

However, potent resources for recovery still remain available, primarily in the form of treble damage provisions in many state anti-trust, civil rights, and racketeering statutes. As an example, the elderly whose claims are targeted for post-claims underwriting by insurance companies may be able to sue under the provisions of California Civil Code section 51 (Unruh Civil Rights Act).

In addition, attorneys could also initiate separate qui tam actions against insurers. In California, insurance fraud qui tam actions are authorized by Insurance Code section 1871.7 (e) (1). Insurance Code section 1871.7 (b) creates civil liability for violations of Penal Code section 550. Penal Code section 550 provides that it is a crime to conceal or knowingly fail to disclose the occurrence of any event that affects a person’’s initial or continued right to entitlement to any insurance benefit or payment. In addition to civil penalties, this section also provides for an assessment of three times the amount of each claim for compensation. Although qui tam actions have been used as a mechanism by insurers against its insureds as well as the attorneys, doctors and others engaged in illegal schemes to procure insurance proceeds, there is no reason why this statute cannot be invoked and turned against the companies themselves.

Recapping These RIA Resources

Notable topics of coverage in Federal Income Taxation of Corporations and Shareholders include a detailed and comprehensive analysis of corporate taxation, the corporation income tax, and penalty taxes. The very effective supplement to this text also identifies proposals by the Bush Administration in 2003, including a proposal to fully exclude dividends paid out of previously taxed corporate earnings. As the authors point out: ” Needless to say, enactment of that proposal would have a major impact on much of the material contained in this work (however, enactment was certainly not a foregone conclusion).

Notable topics of coverage in Epstein’s Handbook of Accounting and Auditing include detailed analysis of financial disclosure requirements, the auditor’s role in financial reporting especially in light of the expanded requirements for independent auditing under the Sarbanes-Oxley Act of 2002, as well as a comprehensive overview of SEC reporting.

Notable topics of coverage in Head’s Internal Auditing Manual include a superb chapter on business fraud and business ethics, preventive measures which can be used to curb such fraud, red flags identifying possible fraudulent activity, and a sample ethical-decision making model.

Other notable texts by Warren, Gorham and Lamont include (1) Handbook of Modern Finance, David E. Logue and James K. Seward, Editors, (2005-I Edition) – which provides an overview of financial systems, the international monetary system, national and international money markets and the instruments used in those markets, as well as analysis of the growing use of credit financing and the business environments and the forces driving the need for such financing; and (2) Tax Planning for Family Wealth Transfers by Howard M. Zaritsky (Fourth Edition), which includes discussion of both strategies and forms for various types of inter-family transfers, such as trusts, family partnerships, family corporations, and limited liability companies, in addition to analysis of the potential tax risks inherent in such transfers.

These texts are each highly recommended to college-level instructors who teach courses focused on the advanced practices of accounting. Each are further recommended to Certified Public Accountantsand attorneys in private practice because of their in depth analysis of the most up-to-date tax law in myriad subject areas. Further, any attorney engaged in civil work, or with a corporate-related practice, should make a point of consulting this material on a regular basis for reasons which have been explored in this column. Finally, these titles are appropriate for inclusion in all University-level libraries and, specifically, for inclusion in law libraries in both the academic and civic sectors because of their long-term reference value.

Order each of these titles from amazon.com, or go to riathomson.

From the Editor: This article is intended as a general discussion of relevant principles of law and is provided for informational purposes only. If the reader has questions about specific situations, he/she should consult a duly licensed and active member of the bar in their area of residence. All cases and/or statutes cited in this article should be read directly by the reader as to holding or content. The description, analysis and interpretation of the cases and legal principles discussed are the author’s own and the reader may not rely upon them in place of reading and evaluating the material directly.

by Frank Aiello

© Frank Aiello. All rights reserved.


Frank Aiello is an attorney who has practiced law in California since the 1970s, including criminal defense, civil and probate work. He holds a History degree from the University of California at Berkeley, and a Law degree from Hastings College of the Law in San Francisco; he has also studied Anthropology, Sociology and Political Science extensively. Reach him via The Electric Review.

Criminology

From the Editor: The new academic year has kicked off, with students across the country returning to the classroom to continue their courses of study. Instructors in the law or social science disciplines should take specific note of these releases from Thomson-Wadsworth, as they would make solid choices for class texts: in the end, the presentations are clear and erudite, the information here meant to be absorbed for life-long retention.

STATISTICS FOR CRIMINOLOGY AND CRIMINAL JUSTICE. Ronet Bachman. Raymond Pateanoster. McGraw-Hill. Now in its second edition, this text by Bachman (University of Delaware) and Pateanoster (University of Maryland) would make an excellent primary course book for any class dedicated to applying statistics to criminology. Here, the authors teach students how to compile, test and interpret statistics so as to allow crime patterns to be anticipated, analyzed – and then mitigated. In depth and impeccably researched, Statistics For Criminology breaks a lot of new ground as it artfully marries pure mathematical concepts to the study of these specialized sociological issues. Although appropriate for undergraduate course work, it is advised that students have a college-level mathematical background and previous exposure to statistical study in order to take full advantage of the breadth of this text.

Recommended for all Criminal Justice or Sociology classes at the college level where crime patterns are studied through statistical analysis.

THE CORE, 2nd Edition. Larry J. Siegel. Thomson-Wadsworth. Larry Siegel (a Professor at the University of Massachusetts-Lowell and a best-selling author) augments the first edition of this title, expanding and modernizing the subject matter to include such intriguing topics as eco-terrorism, globalization, human rights, the international sex trade and cybercrime. The work further touches on crime trends and the impact of race, gender and culture. In addition to coverage of these topics, Core includes a study guide and a slick interactive CD that sets out to profile persons in varied positions in the criminology field – a feature that will help educate the student contemplating advanced study in the field. Siegel’s treatise thus works well as a text and also as a “career guide.” The lone weakness appearing here is the lack of in depth discussion of cultural perception or, more precisely, changes in the public’s perception of crime which have occurred over the past two decades.

Recommended for sociology/criminology students, the work is easily absorbed and, for the most part, timely. Core is also recommended to college-level libraries as a general reference text.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

Criminal Law

CRIMINAL LAW, 8th Edition. Joel Samaha, J.D., Ph.D. Thomson-Wadsworth. Professor Joel Samaha teaches Criminal Law at the University of Minnesota, and the current edition of Criminal Law demonstrates an excellent understanding of his field – his work up-to-date, entertaining and professionally illustrated. In addition to the text analysis, the companion CD included highlights high-profile cases, important legislation and newsworthy events. Stylistically, the text uses a tried and true format to introduce the student to general principles of criminal law, elements of criminal offenses and defenses to crime, first defining each concept and then taking the student through the topics step-by-step. Many ingrained Democratic principles (such as individual liberties and the conceptof law) have beenplaced in a 21st Century context, the author detailing how our freedoms have been affected by new threats such as domestic/foreign terrorism. In addition to the CD, access to a companion website is available, which includes annotations, quizzes, flash cards and a well-developed glossary.

This book would be excellent for sociology, criminology, psychology, political science or pre-law students and is highly recommended to instructors as a class text. Appropriate to college-level libraries as a general reference.

Research Writing

RESEARCH WRITER FOR CRIMINAL JUSTICE. Thomson-Wadsworth. This CD, operating on Windows 98, NT4, 2000/Mac 0S 8.6.1+, is designed to demystify the writing process and to assist the student in putting research into its proper perspective. This software is clearly designed and straight-forward — features that make it immediately useful to the entry level student. The only drawback to the material is that structured writing has gravitated to boilerplate, standardized formats, a fact which contradicts the traditional idea that student writers in all fields adopt their own style. However, any young student writer should adhere to one simple rule: if you have developed a style that works – use it. And to this end, Research Writer will still be helpful. Recommended for the undergraduate student in all social science fields.

by Ted A. Bastian

© Ted A. Bastian. All rights reserved.


Ted Bastian is a criminal defense attorney from Yreka, California. He has also taught at the college level in the field. Mr. Bastian can reached via  The Electric Review.

CONSTITUTIONAL LAW AND THE CRIMINAL JUSTICE SYSTEM. 3rd Edition. J. Scott Harr and Karen M. Hess. Thomson-Wadsworth.

Most constitutional law texts default to the long-established case book approach to the subject matter. Constitutional Law pleasantly surprises the reader by adopting instead a more traditional college textbook format, suitable for law enforcement students in either introductory level courses on criminal law and procedure or more specialized classes on constitutional law or search and seizure.

Co-authors J. Scott Harr and Karen M. Hess have successfully integrated several unique features which distinguish this book from similar texts in the field:

  1. First, they devote their entire treatise to the impact which constitutional imperatives have had upon the criminal justice system. Specifically limiting the book’s focus in this way enables students to concentrate on a defined area of study relevant to their future police work;
  2. The book then combines a broad overview of the foundational principles of each constitutional amendment with specific legal guidelines pertinent to each;
  3. Finally, the discussion of each amendment includes the seminal case law which has interpreted it.

The authors have designed the book to make learning as enjoyable as possible. Each chapter and section serves as a building block for the next so that, at the end, the reader can stand back to survey the completed structure of constitutional limitations upon the government’s power to define, prosecute, and punish crime. The writing style is basic, unadorned, shorn of legalese and easily understandable. In addition, the page layout contains wide margins for notes and references.

Discussion questions, internet assignments, and a detailed list of references and cases cited make up the instructional features of each chapter of the text. The Appendix contains a reproduction of the Constitution and each of the Amendments, the landmark cases of Marbury vs. Madison and Miranda vs. Arizona, and a detailed glossary of terms, but lacking are critical thinking exercises (practical application questions) which would assist the student-reader in testing themselves on retention. The authors do provide, however, helpful Book Companion Web Sites which include further case content tied to the chapters, as well as numerous study aids.

Given the authors’ expertise and qualifications to write about the subject (Harr is a licensed attorney, police officer, private investigator, instructor in various areas of the law and licensed to practice before the U.S. Supreme Court; Hess holds degrees in English and criminal justice and has co-authored eight other books in the criminal justice field), the book’s substantive content is well-selected and timely in its relevance to current events.

Moving forward, Constitutional Law naturally progresses through its subject matter. The first section begins with basic civil liberties guarantees (Equal Protection, First amendment, Second Amendment), modernizing the material to include the current gun control controversy. Section II goes into each of the amendments influencing criminal justice law and procedure (Fourth Amendment search and seizure issues, Fifth Amendment Due Process, Sixth Amendment Right to Counsel, Eighth Amendment bails, fines, and punishments). The text culminates in Section III with a discussion of the remaining amendments, primary among them being the Ninth Amendment and concepts of “zones of privacy.”

In the end, the work remains a useful and effective textbook, recommended for both student and instructor in the fields of sociology, criminology, or introductory law courses. On a broader level, Constitutional Law would constitute a valuable resource to anyone interested in learning and understanding more about their legal and civil rights. Harr and Hess are to be applauded for helping readers get their bearings in this fresh and unique approach to a complex topic.

by Paul Aiello

© Paul Aiello. All rights reserved.


Paul J. Aiello is a retired Judge from Northern California who serves as Legal Editor for The Electric Review. Educated at The University of California, Berkeley and at U.C. Berkeley’s School of Law, Aiello has conducted hundreds of mediations and arbitrations since 1992. Aiello is also on the adjunct faculty at College of The Siskiyous in Weed, California, where he has taught courses in the Social Sciences and Humanities. He can be reached through The Electric Review.

West’s Paralegal Today. Roger Leroy Miller and Mary Meinzinger Urisko. Third Edition. Thomson-Delmar Learning. This is a comprehensive text which examines the role of the paralegal in the structure of the modern law office. Part one of the book is devoted to the “Paralegal Professional” and it explores the ethical and professional expectations which will be levied upon an individual entering this discipline of study. The way a law office works and perspective career opportunities are also explored in this initial segment of the text. Parts two and three provide an introduction to the court system, alternative dispute resolution and the basic systems of law, as well as outlining legal procedure and delineating the skills necessary for competency in this field. Miller and Urisko have simply done a magnificent job in putting this reference manual together: their writing is straight-forward and well-paced, and they use bullet-points and informational illustrations nicely as a means of breaking down data into digestible portions. More than anything, Miller and Urisko have given us a text that provides a detailed over-view of this aspect of the legal world: too many people seem to opting for paralegal study because it makes them “employable,” perhaps failing to realize the massive responsibility that comes with working in a law office. West’s Paralegal Today reminds us in no uncertain terms that this is very serious work indeed. An imperative manual for all college level libraries; useful to both the student/paralegal and the undergraduate in the Administration of Justice field. Also useful to Police Academy candidates who would benefit from the comprehensive chapters on legal procedure and general ethics.

Order from amazon.com or go to westlegalstudies.com.

Also of Note From Thomson Learning

LEGAL ANALYSIS AND LEGAL WRITING. William H. Putman. Second Edition. Thompson-Delmar Learning. Comprehensive text on the principle mechanics of legal writing and case law analysis. Includes chapters on statutory analysis, case briefing, legal correspondence and more. This text is useful for paralegals, law students and journalists. Also useful for government employees who must do report and budget analysis and who must interpret large amounts of information and synthesize it for presentations. Imperative for all college level libraries.

Using Computers In The Law Office. Fourth Edition. Brent Roper. Indispensable text from Thomson-Delmar examines the uses of the computer in the law office. Roper, who posses a Juris Doctorate degree, presents detailed analysis on how the computer can be introduced into the legal community for billing, research, email and case management purposes. Inexplicably, many attorneys today still only use their computer systems as word processing tools, neglecting the many other ways these machines can reduce stress and save time in their offices. However, Brent Roper’s manual clearly demonstrates that the myriad technologies of the computer can easily be tweaked to fit the needs and structure of the American law office. Includes software with sample applications. Useful text for the third year law student; also useful for paralegals and legal secretaries whose roles are constantly expanding. Would be a great benefit to University libraries and to all law libraries in both academic and courthouse settings.

Introduction to Paralegal Studies (A Practical Approach). Linda L. Edwards, J.D. and J. Stanley Edwards, J.D. This manual differs from West’s Paralegal Today in that it focuses less on legal theory and more on practical application. Meant for the beginning student, Paralegal Studies offers workbook like exercises in case preparation, research, trial preparation and legal procedure — taking the perspective paralegal through each of these areas by having them complete the very tasks they are likely to encounter in the typical law office. Highly appropriate as a text for the undergraduate student (more a classroom tool for paralegals than general library reference).

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This entry was posted on June 27, 2013 by in Reference and tagged , , .
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