Wisconsin Lawyer
Vol. 82, No. 3, March 2009
Trial Manual for Defense Attorneys in Juvenile Court
By Randy Hertz, Martin Guggenheim, & Anthony G. Amsterdam (Philadelphia, PA: ALI-ABA, 2008). 882 pgs. w/CD-ROM. $149. Order, (800) 253-6397.
Reviewed by Barbara J. Kirchner
Unlike most books about juvenile courts, Trial Manual for Defense Attorneys in Juvenile Court lacks the obligatory examination of the history or philosophy of the juvenile court. Instead, the manual is an in-depth guidebook for handling a juvenile case from beginning to end. The manual focuses on the tasks, skills, rules of law, and strategic judgment involved in representing clients in juvenile court. Contrary to other professed juvenile guidebooks, the manual does not gloss over aspects of juvenile proceedings that mirror adult proceedings but details every stage.
The manual begins with pre-charging representation of the juvenile, providing a review of charge avoidance and protection of rights before charging. The remainder of the manual follows the standard chronology of a juvenile delinquency proceeding. After the chapters on pre-charging representation, the manual proceeds to the pre-trial stages and trial, and concludes with dispositional strategies and post-dispositional remedies.
A large portion of the pre-trial stages is devoted to motion practice. A wide array of potential motions are explained and examined. The manual suggests approaches to assist in prevailing, including a step-by-step approach for analyzing the facts for many search-and-seizure issues. Sadly, no sample motions or documents are provided. The in-depth approach used in the chapters covering the various suppression motions makes up for the lack of sample motions.
The final few chapters are devoted to the disposition hearing and post-dispositional proceedings. The authors present many new and interesting ideas for creative disposition arguments. There are practical tips and suggestions for even the most experienced practitioner.
The manual meticulously addresses all potential issues and topics as the items become relevant at each particular stage of the juvenile proceeding. This methodology results in the spreading of material with related subject matters into several chapters. Fortunately, there is cross referencing to the sections detailing the specific subject matter.
Included with the manual is a convenient CD, which contains the manual in PDF format. The CD is user-friendly with prompts for downloading AdobeReader as needed. The CD is excellent for out-of-the-office work and review and as a tool in one’s arsenal during trials and hearings.
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Federal Criminal Restitution
By Catherine M. Goodwin, Jay E. Grenig, & Nathan A. Fishbach (Eagan, MN: Thomson Reuters/West, 2008). 625+ pgs. $125. Order, http://west.thomson.com.
Reviewed by Jeremy P. Levinson
Restitution for the victims of criminal offenses plays an increasingly important role in the federal sentencing process. Increasingly, it also offers both opportunities and pitfalls for individuals and businesses seeking to recover losses caused by criminal conduct, either within the criminal proceeding or through civil litigation. This trend is fueled by statutory refinements, heightened judicial attention, and the expanding sophistication and frequency of victims’ (and their attorneys’) involvement in the process. These developments can affect every stage of the criminal process from the charging decision through plea negotiation, trial strategy, and sentencing.
Federal Criminal Restitution would be valuable if it offered only a much needed practioners’ guide that succeeds in being simultaneously uniquely detailed and user friendly. From the book’s preface, however, the authors indicate a broader reach: “Restitution is of ever increasing importance to the judiciary [] as well as counsel for the government, defense, and victims. It is also of interest to civil practioners and corporate counsel.”
The book is a comprehensive resource for individuals in the criminal justice system. It also conscientiously equips noncriminal practioners to advise clients in making informed strategic decisions throughout the process. The authors provide a framework for analyzing and comparing restitution with other avenues of loss recovery that focuses on concrete considerations, such as cost effectiveness, timing, control of the proceedings, and the range of recoverable losses or damages. Consistently practice-focused, the book both lays bare the inner workings of the restitution process and traces the relationship between that process and larger efforts to advance victims’ interests in recovery.
The first sections provide a concise overview and history of the controlling statutes and interpretive case law. These sections are neither unduly academic nor superficial. They identify interpretive and constitutional questions and trends, highlighting issues and problems that may arise in restitution proceedings and setting the stage for subsequent discussion of procedure, practice, and strategy. While densely packed, the text remains focused on methodically building a knowledge-base that is both detailed and practical.
The next sections provide a step-by-step practice guide that is both accessible and unusual in its depth. The guide will be equally useful to readers seeking a quick “how-to” answer and readers with more obscure or complex issues. The guide does not stop at the imposition of a restitution order but proceeds through noncriminal considerations, such as the relationship between restitution and civil proceedings, and postconviction matters including the adjustment and enforcement of restitution orders.
The book’s last section goes well beyond typical practice pointers by systematically detailing strategic approaches, opportunities, and considerations. This section is organized in an especially effective way, approaching the subject from each of three perspectives, the government’s, the defense’s, and the victim’s. The authors conclude their effort with a strategy guide for noncriminal law practitioners seeking to recover clients’ losses. The final section prepares readers to analyze and answer strategic and procedural questions about what role, if any, the criminal restitution process can or should play in efforts to recover clients’ losses, highlighting both the opportunities and pitfalls of various approaches.
With clearly written text, effective organization, and useful appendices, the book handily succeeds in providing a comprehensive, easy-to-use, and timely guide to federal criminal restitution proceedings and related issues. But it is not simply a specialized criminal practice text. In analyzing criminal restitution’s growing implications for individuals who are not parties to the criminal litigation and for noncriminal law practitioners, the authors provide a legal and strategic framework that will prove valuable to a broader array of lawyers in a growing number of practice settings. The book belongs in the libraries of criminal law practitioners (and judges) and practitioners who represent businesses and other entities with losses that may be recoverable as criminal restitution or which present strategic questions affected by the increasingly important role restitution plays.
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We Shall Overcome: A History of Civil Rights and the Law
By Alexander Tsesis (New Haven, CT: Yale Univ. Press, 2008) 369 pgs. $35. Order, www.yalebooks.com.
Reviewed by Barbara L. Fritschel
The United States is “a nation conceived in liberty but born into slavery.” The conflict of civil rights for all people starts with the very foundational documents of this country. The Declaration of Independence declares that it is self-evident that all men are created equal, entitled to life, liberty, and the pursuit of happiness. Years later, the U.S. Constitution would hold that some people, those in slavery, would count as only three-fifths of a white person.
Author Alexander Tsesis looks at the disconnect between lofty statements and reality. Originally, only white propertied men were entitled to political rights, something conveyed to protect colonial power structures. The commitment to equality often was in conflict with the commitment to liberty. The definition of liberty was flexible enough to include protection of private property, states’ rights, and the rights of workers and consumers to make bad bargains.
This book traces civil rights actions by all three branches of the federal government. Reconstruction, the New Deal, and the Civil Rights era were times when the federal government took an expansive role in protecting individual civil rights. There were other times, such as backsliding from Reconstruction, to the decades following the Plessy v. Ferguson “separate but equal doctrine” and the Japanese internments in World War II, when the federal government denied civil rights. Tsesis also documents those instances when states were more progressive than the federal government, such as when many Western states gave women the right to vote before the passage of the 19th amendment.
The book is too short to deal with every interaction of civil rights and the law, so its focus is primarily on African Americans. Other groups facing civil rights struggles, such as Native Americans, women, and Japanese people, are briefly mentioned, especially as they interact with African Americans. For example, the discussion on women’s suffrage notes that the women’s movement split on whether women should focus only on women’s rights or also should advocate for African Americans. The book ends with a look at the current state of civil rights, primarily in the area of privacy and gay rights. Perhaps a little too heavy for summer beach reading, the book is still worth reading.
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Recreational Immunity in Wisconsin: Reference, Development, and Analysis
By John A. Becker (Racine, WI: Nevin Publishing Co., 2007). 240 pgs. $60. Order, (262) 633-7530.
Reviewed by Nicholas C. Zales
If you are involved in trial or appellate court litigation that involves Wis. Stat. section 895.52, Wisconsin’s recreational immunity statute, then you must have this book, an excellent survey of the myriad of appellate case law construing the statute through 2006. The book’s greatest strengths are its hundreds of short summaries of the rules of law found in appellate cases and its excellent citations. It contains a comprehensive survey of the nature of recreational immunity, the legislative intent behind the statute, and the case law generated by these fact-intensive cases. Knowing how the law developed and where it is heading is important in fashioning arguments.
Enacted in 1984, the purpose of the statute was to encourage landowners to open up their lands to recreation for a burgeoning population. Owners who opened their property for recreational activities would be immune from liability. As always, the devil is in the details. This book breaks down the statute and shows how our courts have construed the myriad of questions that arise, such as what is a recreational activity, who is an owner, and what is property. The answers usually come down to common sense, but this book proves there are no easy answers and there is a vast amount of case law to wade through. Simply by collecting all these cases, the author has done a good thing for Wisconsin lawyers.
This book was written for experienced lawyers who already understand litigation and appeals. It offers no practice tips on pleadings, discovery, or motions. It does contain a sample proposed jury instruction and notes that there currently is none. The book’s fundamental fault is that by focusing on individual rules of law in summary form, the author repeats and cites the same cases over and over out of complete context. Reading this book is like analyzing what an elephant looks like from pictures taken an inch away. It’s a tough read but worthwhile for litigators and appellate lawyers who want a complete analysis of the vast amount of case law this statute has generated and some good ideas on how to argue for changes in the law.
Nicholas C. Zales, Marquette 1989, Milwaukee, is a member of the State Bar Board of Governors.
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