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William C. Altreuter
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Friday, October 31, 2014

Sonia Sotomayor may be the greatest Supreme Court Justice of all time. She was already a contender merely for appearing on Sesame Street (and now I am imagining Clarance Thomas having a conversation with Oscar the Grouch), but she is also, apparently, an awesome person who would be fun to be friends with.
If Sotomayor seems comfortable putting her colleagues through the paces, that may be because she has a penchant for pushing herself. This past weekend, at a reunion event for Yale Law School, she revealed that, when it comes to dancing, she’s hardly a natural. “I can’t keep a beat to save my life,” she admitted. That fact kept her away from dance floors for most of her life until she finally decided, “This is something I want to change.”
And so Sotomayor signed up for salsa lessons. She was 50 at the time and a newly minted member of the 2nd Circuit Court of Appeals.
Diversity is a concept that is sometimes mocked by the sorts of people who, for one reason or another have never experienced it, and empathy as a judicial quality was expressly derided when Justice Sotomayor was undergoing the confirmation process. On some level the Princeton and Yale educated Sotomayor may not seem so diverse: her educational pedigree  means that she can join clubs that I can't, and I'm a white middle-aged male. Confronted with the two of us, Oliver Wendell Holmes would have handed Justice Sotomayor his coat, and asked me to join him at the bar, and that all by itself is why it is so great to have a Supreme Court Justice that took salsa lessons at 50.


Wednesday, October 29, 2014

Because I have been spending time teaching oral advocacy I've been thinking a lot about oral advocacy, and so tripped a little over process and protocol yesterday. I made my points, but it was clear from sic 'em that the panel knew what my points were, understood what both of us were driving at, and had a fair handle on where they were going to go with the case. What made me happy watching them was that the bench was active and engaged with every case that came before them that morning. The judges were respectful and gave good value: nobody was left twisting in the wind, and I think everyone (except maybe the woman who had the defendant in a "sole proximate cause" Labor law §240 case) walked out feeling like they got a decent hearing. The §240 case was the most interesting thing on the docket: apparently the hapless plaintiff jury-rigged a scaffold platform by using the bucket of a backhoe for one side of the support. Naturally this ended poorly, and as Justice Lindley noted the fact that the backhoe bucket was used this way pretty much established that the plaintiff had not been provided with the necessary safety equipment. Justice Fahey put it all in a nutshell: if there is any other cause than the plaintiff's actions cannot be the sole proximate cause, and that means that whatever stupidness the plaintiff engaged in amounts to comparative fault and is therefore no defense. There was, apparently, an issue in there about expert proof, but the bench blew past that. Having argued my share of §240 cases over the years I recognized the expression on counsel's face as she walked out after her argument. I suspect her steering wheel got a fair banging on her drive back to Syracuse.

Monday, October 27, 2014

I'm arguing an appeal in the 4th Department tomorrow, so, as one does, I am doing a lot of fussy things to prepare. Obviously I'm re-reading the briefs and the record; of course I'm printing out all of the cited cases (again) and annotating them (again). I've got a nice legal pad all set. Just to be super-sure, I just did a Google Maps search for directions to the courthouse, because it has been a while. My rule of thumb for appearances in both Monroe County and the Appellate Division has always been, "It's a little bit farther than you think," and sure enough, Google says it is an hour and ten minutes away-- exactly a little bit farther.

Time for a moratorium on the following:

-- "On steroids";
-- descriptions of rich foods that reference defibrillators, cardiac health or death;
-- Hand-wringing about Ebola. Hand washing is acceptable;

I'm open to further suggestions.

Thursday, October 23, 2014

Sometimes Outside Counsel is just a notebook. The Best TV Shows on Amazon Prime

Wednesday, October 22, 2014

Charley Pierce on the perils of an elected judiciary.

I'm not sure why the 92nd Street Y chose The Man Who Shot Liberty Valance before Justice Breyer's talk the role of law and lawyers in society-- it wouldn't have been my choice. I suppose there is a core truth in Liberty Valance that goes beyond "When the legend becomes fact, print the legend." In a sense when we are litigating a matter what we are doing is working towards an agreed upon set of facts-- and when the matter is decided at nisi prius  we become locked into those facts, whether or not we "agree" with them at that point. In recent years it has become fashionable among lawyers to quote John Adams: "Facts are stubborn things,"and I suppose we are being sincere when we say it, but the reality is that we all know better. Facts are different from evidence after all. The law of evidence evolved the way it did in a charming effort to develop a sort of science of reliability in the face of a world which we know to be unreliable. Evidence is, in the end, a system of excluding certain types of proof in favor of other types. We first eliminate the irrelevant, a complex task in an interconnected world; and then we consider what other types of proposed proof are or are not testable. When this was all being worked out science was thought of as Natural Philosophy, and so principles of scientific reliability were applied: hearsay rules are really just a way of barring forms of proof that are not subject to verification or rejection by cross-examination. What that means, ultimately, is that the version of the facts that we as lawyers see is distorted through the lens off our artificial apparatus of truth-seeking, and in some ways that lens is as unreliable and as subject to wishful or heroic thinking as the question of who was responsible for bringing law and order to Shinbone.

An aside: I'm always a bit shocked when I recall that Liberty Valance was released in 1962-- it seems like an older movie to me, and its distinctive cynicism seems out of synch with the supposed optimism of the  Kennedy years. In a sense you might argue that Ford was weirdly prescient: we recall 1962 and Kennedy as legends now, don't we?


Friday, October 17, 2014

Albums That Never Were. In the mid-to-late 70's this was a popular sort of mixtape: constructing albums that hadn't been released by bands and artists from solo projects, B sides, compilations, soundtracks and the like. Back then a lot of these projects consisted of creating post-Beatles Beatles albums, but Crosby, Stills, Nash and Young sets were also easy to put together. There's a lot more out there these days, and this guy has created "lost" albums by Pink Floyd, The Who, and a bunch of others. He even remixes some of them. Pretty cool.

Wednesday, October 15, 2014

More for our Perils of an Elected Judiciary File. The Supreme Court is poised to rule on the question of whether judicial candidates can directly solicit campaign funds. How could that possibly go  wrong?

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