Wisconsin Lawyer
Vol. 83, No. 4, April 2010
Trial Technique & Evidence (3d ed.)
By Michael R. Fontham (Louisville, CO: NITA, 2009). 865 pgs. $85. Order, www.nita.org.
Reviewed by Liz Koch
When I signed up for evidence class in law school, I thought I was finally going to get some practical instruction. No more briefing boring cases or listening to students struggle with the professor’s attempts to keep the Socratic method alive and well. I imagined listening to the professor’s war stories from the front lines in a courtroom somewhere. Visions of cross-examining a witness until she had her “Matlock moment” (when she would break down under my cross-examination and admit that she, not the wrongfully accused defendant, had committed the crime) danced through my head. I could not wait to call out objections. On what basis? I had no idea, but as a trial attorney in the making, I was ready to learn.
By week two, the dream was dead and the laptop was buzzing as I briefed hearsay case after hearsay case….
If only my professor had used a book similar to Trial Technique & Evidence. I knew this book was a gem when I read this statement in the preface: “[t]eaching evidence without trial technique is like teaching surgery without explaining how to use a scalpel.” What good is the textbook definition of hearsay if you can’t recognize hearsay when it sneaks out of a witness’s mouth and into the record? This book should be used in evidence classes around the country because it not only clearly explains complex concepts, it also provides readers with valuable tips and techniques for trial preparation and execution.
One of the book’s biggest selling points is the wealth of information contained in its user-friendly format. It takes you through trial preparation, jury selection, and opening statements before it serves up the meat and potatoes: trial techniques and evidence. The author does a good job of mixing legal explanations with practical applications. For example, in discussing the introduction of exhibits into evidence, the author cites Federal Rule of Evidence 901(a), which provides the legal requirements for admissibility of physical evidence, but he does not stop there. The section then details procedures commonly employed to successfully introduce the exhibits, including multiple detailed “testimony” examples of questions and answers. The book is logically organized from trial preparation through closing argument with a comprehensive, 18-page table of contents.
Whether you are a 3L preparing for your first mock trial or a senior associate gearing up for a federal court showdown, this book will meet all your needs. The information is clearly presented in an easy to read and use format, and the book contains substantial footnote citations and references. I highly recommend this book: even lawyers in the Badger state need to know how to distinguish between effective cross-examination and objectionable badgering of witnesses.
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Identity Theft Handbook: Detection, Prevention, and Security
By Martin T. Biegelman (Hoboken, NJ: John Wiley & Sons Inc., 2009). 349 pgs. $75. Order, www.wiley.com.
Reviewed by Martin A. Blumenthal
I did not know until I read this book that postal inspectors investigate major, sometimes violent, crimes, that involve the use of, or attacks against, the mail system. The author, a former postal inspector, reviews the history of identity theft and tries to define it. Identity theft, in essence, is impersonating another person without that person’s knowledge or consent. The impersonation is almost always for the purpose of defrauding another for monetary gain.
This book contains many true-life stories of arrests the author made during his career, including the schemes, the perpetrators, and the dollar amounts involved. Very often, the investigations were conducted along with the FBI and other police agencies, including foreign authorities.
The author traces the development of federal and state laws passed over the years to help combat identity theft and prosecute it effectively. The crime is easy to commit and for some is very profitable.
One can learn how to steal identities from reading this book but at the same time how to best prevent identity theft. In the next-to-last-chapter, the author gives a short course on the 20 steps to take to keep from being the next victim.
Professional identity thieves seem to be an innovative lot. As new technology comes out, they find a way to use it to forge documents, steal passwords, infiltrate company credit card accounts, and move money. Some of them are masters of “human engineering.” I would call them confidence artists because they use simple artifice and psychology to get confidential information just by asking for it. But make no mistake, some, such as the Nigerian gangs, are involved in organized crime and use violence to protect their operations.
The last chapter describes the so-called identity-theft-prevention services. The operators of some of them seem to have the same background as the people they are supposed to protect you from!
Even if you read only the last two chapters, you will be able to protect yourself and clients from theft or dissemination of confidential information.
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But I Don’t Want Eldercare!” Helping Your Parents Stay As Strong As They Can As Long As They Can
By Terry Lynch (Denver, CO: Legal Center for People with Disabilities & Older People, 2008). 312 pgs. $17.95 (bulk rate available for attorneys).
Reviewed by John G. Movroydis & Molly E. Hall
Elder law attorneys are often expected to be all things to their clients. Many of the issues presented by our elderly clients cannot be resolved or even addressed with a good estate plan or other legal documents or counsel. Such issues include whether and how the client can remain in his or her home, safety concerns, locating community resources, deciding on long-term care insurance and choosing the appropriate policy, choosing the best Medicare Part D prescription coverage, and many other nonlegal concerns. Attorneys normally lack the information or expertise to counsel in these areas. Additionally, dealing with these issues may not be something for which the client is willing to pay.
This problem in elder law practice has been ably addressed by Terry Lynch’s new book. Lynch, a Racine resident, brings not only extensive work experience in the area but also 10 years of experience as his mother’s primary caregiver and advocate. Lynch’s book provides Wisconsin-specific information as well as national information on helping older people remain self reliant and engaged for as long as possible. As Lynch says, “If you keep your parent’s spirit alive, you can accomplish remarkable things.” With strategies for preventing premature dependency on caregiving services (such as nursing homes) and reducing parents’ dependency on daughters and sons, which most people simply accept, the book helps readers tap community resources to preserve the independence and assets of older people or family members with disabilities.
The book includes a short section on legal issues such as living wills and guardianship, but its primary focus is on topics such as depression, Alzheimer’s disease, rehabilitation and preventative services (including services covered by Medicare), and health-care crises, including hospitalization. Especially of interest are Lynch’s strategies for advocating for family members who live out of state. We found Lynch’s book informative, well-organized, and easy to read. We intend to provide a copy of this book to all our elderly clients, and we urge other elder law and estate planning attorneys to do the same. Wisconsin attorneys can purchase copies of the book in bulk directly from the author at a discount rate of $13.75 each for 15 or more. For more information, contact the author at TerryLynch@agingindependence.com or tplynch45@gmail.com.
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Human Rights, Intervention and the Use of Force
Edited by Philip Alston & Euan MacDonald (Oxford Univ. Press, 2008). 294 pgs. Order, www.oup.com.
Reviewed by Lawrence G. Albrecht
Offering a myriad of legal perspectives, this collection of essays addresses the circumstances under which the international community may, indeed must, under the aegis of the United Nations or another institution, militarily intervene in humanitarian crises caused by armed conflict or natural catastrophe.
The editors’ introductory essay frames emerging international doctrines of humanitarian intervention against the push-back of state sovereignty and security principles dating to the Treaty of Westphalia in 1648. Several essays address the limits of state sovereignty, the legality and the legitimacy of the collective use of force for humanitarian intervention, and the targeted killing of terrorist or rogue nonstate actors. By framing the legal architecture supporting humanitarian intervention principles, the essays also address the pragmatic geopolitical and economic implications of intervention.
The international principle of the responsibility to protect (“R2P”) was formally adopted by the U.N. General Assembly in 2005 and has morphed into an all-purpose duty to protect. Its potential applications have far exceeded its initial doctrinal moorings. This is the theme of an essay entitled “The Schizophrenias of R2P” by José E. Alvarez, president of the American Society of International Law.
In 1958, the German Federal Constitutional Court essentially created a duty to protect individuals from harm by the state or by individuals. Of course, in the United States we have already lost any Pollyanish naiveté regarding any constitutional governmental duty to protect persons in harm’s way: R2P, meet DeShaney v. Winnebago County Department of Health & Social Services, 489 U.S. 189 (1989), and its progeny (holding there is no substantive-due-process duty to protect individuals from harm, with very limited exceptions). In the United States, resistance to international R2P obligations is bulwarked by conservative legal theorists for whom compliance with United Nations (or Geneva Conventions) mandates is anathema when in perceived conflict with U.S. military or geopolitical interests.
Nevertheless, the human-rights community has rightly cheered the R2P doctrine of humanitarian intervention, even when its implementation costs innocent civilian lives. Richard B. Bilder, a U.W. Law School emeritus professor, addresses the complex application of seemingly contradictory R2P principles in a detailed case study of the NATO military intervention in Kosovo in 1999. This essay in particular sets forth assessment metrics for both past use-of-force experiences and proposed interventions based on measurable human-rights and geopolitical cost/benefit principles.
As other contributors to this volume suggest, human-rights advocates should adopt this pragmatic and cautious perspective toward R2P. Unless the legal culture supporting the DeShaney nonduty legal regime becomes discredited, the United States may largely be a bystander in this nascent R2P human-rights drama
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