Super Lawyers
William C. Altreuter

Tuesday, August 18, 2015

So last week -- last Thursday morning, at about 3:30-- I woke up with serious abdominal pain. After I ruled out ectopic pregnancy I really wasn't sure what might be the cause, so I vomited for a while, and went to sleep in the back bedroom so my thrashing and moaning wouldn't disturb A. Of course, sleep was not in the picture, and in the morning I told A. that I'd be staying at home in agony. Naturally she wanted to be all helpful and stuff, but she also had a deposition to get to. I told her that if things took a turn I would either call her or die. I didn't die, although there were moments when I considered wishing for death's sweet release. Long story short, ER that night, and it was a kidney stone, which they told me I had passed. Friday I felt improved until about midnight, when I was revisited by the tortures of the darned. I'm not going to say that it was the worst pain I've ever experienced, but it was certainly an experience that I would wish upon a very select few people.*
(*Names available on request.)

I'm all better now, thanks, but the experience gave me a glimpse into modern American medical practice that I hadn't had before. The ER at Sister's Hospital, where A decided to take me ("What if I need an abortion?" I moaned) was the usual ER thing. Sisters is on the border of white/black Buffalo, so there was a pleasing demographic mix, and it's not the first choice for trauma, so there was nobody there holding cups of ice with severed pieces in them, which was also nice. They told me to follow up with a urologist, and that's where it started: the next day I got a call from the urology practice they'd recommended. They called me. I wasn't up for taking the call on Friday, but on Monday I checked in, and they gave me an appointment for that afternoon. That sort of alacrity in scheduling struck me as unusual, but if they had an opening I wasn't going to question it, so I made my way out to one of those big medical office buildings that one sees in first ring suburbs-- a fancy new building, with an attractive little coffee shop in the lobby. There were two or three practice groups in the building-- the urology group, an oncology group, and maybe one other, and it didn't occur to me til latter, but I'd be willing to bet that the docs who own the practices likewise own the building in some sort of real estate investment partnership independent from their practices. That nice little coffee shop is a cheery cherry on top of their return-- they rent the practice space to themselves, and get a little bonus every month in the form of the rent from the guy who sells sandwiches to the staff.

The parking lot was jammed. Seriously, I drove around three times to get a spot. When I got out of the elevator I saw why. The entire second floor was divided into two large spaces, on either side of the two elevators. On one side was a large waiting room, filled with sad men whose penises won't even piss any more. On the other side was a big circular reception desk, about the size of a circus ring, with white-coated women taking patient information. There were, I'd say, about a dozen of them. In front of each was an electronic signature pad. In between the waiting room and the desk there was a line with about twenty or so more of the sadly afflicted. It was a daunting picture-- I've walked away from movie lines that long, but it moved along briskly. As we shuffled toward the head of the line more white-coated women bearing clipboards would walk out past us in to the waiting room, call out patient names, and escort them back to the examining area. (Isn't it odd that the way you know who the doctor is today is that it's the person who is not wearing a white coat? )

At the desk you give your insurance information. They had my chart-- they had a copy of my ER discharge. I signed HIPPA stuff, and insurance stuff, and the rest electronically-- the reception person told me what it was, and I suppose if I'd cared to read any of it they'd have given me a copy to sit down with, but if that ever happens I'd fall over from shock. I was given a cup, and directed over to the right, where there were a half dozen lavatories. Inside the lavatories, of course, were more sad old men, struggling to produce urine-- the very reason they were there in the first place. When a room opened up I pissed into the cup, put the cup into the little automat door, returned to the desk and was given a clipboard and some paperwork to play with for a while. I was on the second page when a woman in a white coat who looked a little like Kristin Chenoweth called my name and took me to an examining room. Five minutes latter I was chatting with the doc, who thought the hospitality aspect of my practice sounded cool. He wanted to talk about some of his tourism adventures, so we worked that in with our discussion about kidney stones. My urine had already been analyzed. (There was still some blood, but nothing to get worried about.) We probably spent about 15 minutes together, and probably we spent that much time because we were enjoying our chat. I'm sure it was a happy respite from examining the parade of sad old man penises that comprise most of his day. Outside each of the examining rooms were computer stations, so that each doctor could complete his or her report on the spot. Since we were having such a fine old time talking about Scandinavian travel my guy filled out his while I was standing there. In that time I saw two other doctors writing theirs too, while their patients waited. I was sent to the desk again-- a different quadrant this time-- given a follow-up date, and sent on my merry way.

The whole experience was polite-- even cheerful. The place was clean and brightly lit. Except for the sad old men (and their stoic wives) everyone was attractive and nice. It took less than an hour, but it didn't feel impersonal-- just mind-bendingly efficent. And that's what medical practice is today, I guess. The doc I saw-- very nice guy-- was an employee. Everyone I saw was an employee. It was not at all the way I'd thought an industrialized medical practice would be-- no concrete block walls or metal desks, nothing squalid or depressing, just a big machine for making money. It was completely different from the ER (Florescent lights, linoleum, concrete block walls), or my doctor's cheery little sole practice, or any other medical interaction I've ever had. It sort of reminded me of a casino-- there is a service being delivered, but the chief function of the place is to efficiently make money. Or maybe a better analogy would be some place like the Cheesecake Factory. I've never been, because I see no reason to go to a chain restaurant, but I understand the food is good, and the service is chipper. They have the restaurant experience defined down to the number of steps it takes to take your order, prepare the order and bring you your order-- really, down to the steps it takes to set up the mis en place. From what I have read the experience of a meal at the Cheesecake Factory is very nearly exactly like what one might have at an actual fine dining restaurant, except that as you are having your experience thousands and thousands of people all over the country are having the exact same experience. That's a bit unnerving.

Monday, August 10, 2015

To Gettysburg over the weekend, an experience I am still processing.

I've not been before, and had intended to defer going until I'd done some immersion study of both the Civil War in general, and the battle in particular. Now that I've been I can say that I have more questions than formed opinions, and the big question is foremost: What does Gettysburg mean?

By way of background I should note that the reason we went this weekend is that CLA and A had learned that on July 1st, 2nd, and 3rd (the dates over which the battle was held) there was to be a reenactment. Apparently this is an annual event, and A booked tickets for it. The event was postponed due to weather, and so there we were. Unknown to me, the reenactment was not held at the actual battlefield, but was instead staged at a big field a few miles down the road. This site was where much of the 1993 movie was filmed, but was otherwise of no real historical interest. As I would subsequently learn the actual battle sites would not be suitable for reenactment for reasons entirely apart from good taste. Reenactors are a bunch of weird cats. Playing dress-up and going camping is not my idea of fun, and it's not my idea of serious historical study either. It seems grotesque to pretend to be a participant in an event like the Battle of Gettysburg, and it is horrifying that there are people sitting in bleachers eating soft pretzels and Italian ice who have paid to watch this bit of make-believe. Worse than that, to me, is that the vendors also include people selling books with titles like Lincoln Uber Alies, and kitch like Nathan Bedford Forrest coffee cups. What kind of person buys something like that? We wandered among the tents, watching the kooks in dress-up do things, but once I'd seen the coffee cups I was pretty unnerved. We stayed for a demonstration of cannon and mortar firing, confirming in my mind that these people were, on top of everything else, Second Amendment nuts, and then split to go to the actual Battlefield National Park.

This was a different experience, but still a troubling one. The Venn Diagram of people who went to each seemed to have very little overlap-- the Battlefield group seemed older. There were more grandparents with grandchildren at the National Park, I'd say, and the people at the reenactment were younger generally, with younger children. The various presentations-- the movie, the cyclorama, the museum, the monuments-- all of it-- is evenhanded, perhaps excessively so. The point of commemorating this horror, these three days of individual atrocities committed in the name of perpetuating the greater historical atrocity, the thing that William Faulkner called "America's Original Sin", seems to be twofold. The first is that as an exhibition of military tactics the battlefield is a canvas that may be unparalleled. There it is-- you can see it all. If that were all it is, or all it aspired to be it would be of interest to specialists. What it aspires to be is what Lincoln was driving at a year latter in his speech. Gettysburg wants to be a symbol of reconciliation. Monuments commemorating the men from each state, North and South; generals and officers from both sides; granular detail from the various docents about the experiences of the men in both armies- and the discussions of the reunions that were held until the last survivor was dead, are all intended to celebrate the United States that emerged after the War. Unfortunately, in order to believe in that one has to do a good bit of squinting at the United States that we had then, and still have.

I believe the United States has as its chief value in the world its aspirational qualities, and I believe that those qualities are best expressed in the Constitution and its supporting documents, particularly the Federalist Papers. The Constitution, a living document, is, like all scripture, flawed. The 3/5ths Rule, for starters was the seed for the horrors of the war I've spent the weekend thinking about, but we spent the next century plus-- up to and including now, today-- addressing the problems created by the country's economic dependence on chattel slavery in an incomplete and unsatisfactory manner. It's great that we have the 14th Amendment, but it would be a far better thing if we had more Supreme Court Justices that believed that the 14th Amendment means what it says.

Tuesday, August 04, 2015

Joe Biden is 72 years old. Granted, he is a young 72. I like Joe Biden, but I like Bernie Sanders more. My only Bernie Sanders objection is that I feel sort of bad voting for an old white guy. In any event, I doubt that Joe Biden is going to run, because it is not in his nature to be a spoiler. Maureen Dowd somehow got a hold of a story about Beau Biden's deathbed plea to the Vice President, but things that Maureen Dowd says shouldn't be taken seriously. Joe Biden is not going to run for President.

Which reminds me. One of my favorite summertime things to do on a Sunday is to sit in the back yard with Orng, my cat, drinking coffee, reading the paper, and writing crank letters to the editor. This past Sunday Margaret Sullivan, the Public Editor of the NYTimes wrote a column about the treatment Hillary Clinton receives from the Times. Apparently she wandered around the press room and asked people if the former Secretary of State was treated unfairly by the paper. You will be relieved to know that the people who cover former Secretary Clinton deny it. I've met Ms Sullivan-- she used to be the publisher of the Buffalo News. (I think she uses her high school yearbook photo for her column.) I figured the Buffalo connection might get a letter read, so I fired this off:
Dear Ms Sullivan:
I'd say that among the greatest failures in the history of Times are the way the publication treated the Clintons- and the way it covered the run up to George W. Bush's war against Iraq. I'm inclined to think that the common denominator might be access or the lack of it. The Clintons recognized back in Little Rock that the press was no friend. Like a lot of liberals they also recognized that although the story that they thought was important was government, the press was bound to be more interested in personalities. This has proven to be true, and as a result we find that Hillary Clinton is not inclined to open up to the people who have made careers out of rubbing her face in shit that any person would spend a lifetime trying not to think about. Maureen Dowd is almost certainly among the worst: as Ms Dowd herself might put it, she acts as though she is the head cheerleader Bill dumped to date Hillary, the honor roll dweeb. (Actually, that in a nutshell is every Maureen Dowd column.) Contrast this with the warm tongue bath Judith Miller gave to Scooter Libby. It must have been thrilling to have that kind of access, and I guess when the facts are too good to fact-check doing so might have seemed downright unpatriotic.
Here's how to cover Hillary Clinton's campaign: what does she say? Fact check it, and report on that. All campaigns should be covered that way. I shouldn't have to say it, but really, NYTimes, seriously, Ms Sullivan, news is different from gossip. Gossip is what the NYTimes ran up to President Clinton's impeachment. News is why he wasn't recalled- because President Clinton had a pretty good record as President, and that was all anybody really cared about. Let me make you a proposition: send MoDo to Paris for the next little while, and get someone whose mind hasn't been in high school for the last 40 years write about politics.

Cheez Louise,
William C. Altreuter
I will let you know if I hear back. 

Friday, July 31, 2015

Here's something that I don't think has happened to me before: I am a character in a letter to an advice column.  In Through the Looking Glass Tweedledum and Tweedledee tell Alice that she is just a character in the Red King's dream, and will disappear when he wakes up. I feel kind of like that.

When EGA got sick I wanted to write about it, but for the most part I felt as though the effect of her illness on me was dwarfed by the magnitude of what she was experiencing. It felt solipsistic to write about my experience as though its importance was anything like as significant as hers, so I mostly didn't. Appropriation is a tricky thing. At the City of Night event in the Old First Ward  for example, great care was taken to solicit and engage the people in the neighborhood. We did not want it to be a bunch of outsiders rolling in and saying, "Well, isn't this shabbiness chic, now that we have discovered it." We wanted to celebrate the place,  which is an important piece of Buffalo's DNA, if you will. Even so, someone used the hashtage #NewFirstWard and a number of people were really offended. That act --  a verbal act, an act of labeling, was a sort of cultural imperialism akin to explorers from Europe claiming to have discovered two continents that had been there all along.

So too Joyce Maynard, who was her own character when she wrote "An Eighteen Year Old Looks Back at Life", but soon enough appropriated J.D. Salinger-- arguably the most private man in America at the time, and then, in her voracious appetite for narrative, appropriated the stories of her daughter, and pretty much everyone else she came into contact with. Maynard is an extreme example, because she seldom bothered with pretending that what she was writing was fiction, but I worry about taking things that are properly other peoples' experiences and presenting them as my own work. It seems to me that there is an existential peril involved: If I appropriate your story. If, as I believe, our lives are a narrative, then what remains of my narrative when I appropriate your story and present it as my own? (Of course what this means in part is that I believe the actual 'work' is the living of the life rather than the reporting of it. That's a slightly different discussion.)

Lillian Hellman was accused of this, you may recall. In her memoir "Pentimento", (which was made into the movie, "Julia", is said to have appropriated an episode of Muriel Gardiner's life as an antifascist activist in Vienna. Hellman denied it, and when Mary McCarthy called her out on it, ("Every word she writes is a lie, including 'and' and 'the') Hellman sued the hell out of McCarthy. Obviously Maynard and Hellman-- who are both kinds of monsters to me-- are extreme examples, but in my writing I endeavor to stay as close to the meat that clings to my bones as I possibly can. Perhaps this is a mistake. Maybe what I should be doing is using other peoples' material in order to explore issues and ideas that are larger than, or just different than my own. Since I seldom feel as though my own story is more than merely anecdotage maybe what I have done to myself to to trap my writing in between the banks of an impossible to navigate river. Can't write about other people, won't write honestly about myself. That is a possibility, and I won't pretend that it isn't a concern.

But that's not really what is peculiar about the experience of seeing an anecdote in which I am a character (a vaguely comic character at that) in print. What that seems to be about is a concern on my part, rooted in vanity of course, is that in this anecdote what I believe to be my complexity, my dimensionality, is lost. I have become, somehow, the father in Clueless-- a supporting character in someone else's movie. It is strangely jarring to find myself recognizing that character, and then realizing that I recognize him because he is me, like staring at a stranger across the room in a bar, and then realizing that I am looking in a mirror.

Monday, July 27, 2015

My classmate Ken Kirby has an article in the July New York Bar Journal on the question of whether filing a 90 Day Demand to Resume Prosecution waives the defendant's right to further discovery. There is a split in the Departments on this, and the Fourth Department holds that it does. Ken argues, persuasively, I think, that it shouldn't.

A couple of thoughts: I'm as CLS as hell, and I think there may be a Critical Legal Studies answer to the question of why the 4th Department treats 90 day notices the way that it does. The culture in the 8th Judicial District, which dominates the 4th Department, is to treat the Note of Issue as a formality with the primary purpose of generating revenue. As I am sure you are aware, the usual practice around here is for the trial court to set a date by which the Note of Issue is to be filed, and to set a trial date at the same time. As a practical matter this means several things happen routinely. First, if a Note of Issue is filed before discovery is complete the trial court (or the parties, by stipulation) simply continue conducting discovery. Of course, this has Brill implications, but since the majority of civil cases around here aren't summary judgment type cases the Brill issue is winked at. The second big thing is that juries are regularly picked, and cases tried, when the Note of Issue hasn't been filed, or has been filed at the very last minute. I have had Notes of Issue filed and served as I was in the jury room, and this is not a rare occurrence. In addition, in the however long I have been practicing here I have never had a Note of Issue stricken. I gave up even making the motion a long time ago. I suspect (although you would know better than I would, have done the research and all) that there is a paucity of 4th Department decisional law on the question.

This yields some odd results. I just finished a case in which the plaintiff's attorney served expert witness discovery on the 30th day out from trial, along with what purported to be a "Supplemental Bill of Particulars". In fact, the new Bill of Particulars articulated a new theory of recovery against my client (which theory was supported by the expert witness disclosure). The Note of Issue had not been filed-- the trial date was the trial date the court had ordered some six or so months back. I moved to compel further discovery, and my motion was granted, but I was obliged to quickstep through the process because the trial date was, for reasons that probably have as much to do with OCA's requirements with respect to calendar control, immutable. (The case settled, ultimately. I would have been interested in taking the appeal, if only to get the question of how Notes of Issue are treated before the Appellate Division. Since the question would probably turn on whether the court improperly exercised its discretion in allowing the case to proceed to trial when there was a new theory of recovery articulated for which adequate time to conduct discovery was allowed I cant say for confidence that I'd have prevailed, but that wasn't the only thing I'd have been talking about on an appeal.)

It occurs to me as well that there is a third option beyond letting a case linger or filing a 90 day demand. I have, on occasion, filed the Note of Issue as a defendant. Obviously this does -- or should-- amount to a waiver of further discovery, but since the culture here does not treat a Note of Issue very seriously (except, again, in a Brill context) I have found that the courts generally direct that I remain open for discovery even after I have filed.

Sunday, July 26, 2015

Well, this explains a lot. For a long time I've wondered how any sane person could possibly think the NYTimes is liberal. Maybe it is because it is being evaluated by its readership rather than by its content. In today's Magazine there is poll data that says 36% believe in God"; 39% do not; and 25% are not sure

Thursday, July 23, 2015

This past weekend -- the past few weeks really-- have had me thinking about what it is that our job actually is in our glamor profession. I had two major events coming to a peak at the same time, and in many ways the two, which on their face couldn't have seemed more different, called upon me to do kind of the same things, using different tools.

First and foremost a case I'd been working on for a couple of years came to trial. I'd done the discovery, reviewed the materials, written analyses of the law and the facts and the evidence-- and then, about three months ago, when the case was supposed to be tried, opposing counsel served discovery material which radically changed the entire complexion of the matter. This meant that I had to work with my knowledge of procedure to revisit all of the work I'd done before, revise my strategy, and employ a number of tactical measures in order to get back on top of the case.

The second big thing was that ELAB-- Emerging Leaders in the Arts Buffalo-- was in the final stages of mounting its annual event, City of Night, in a new location. I came on the board of ELAB last winter, and have been doing the fidgity bits that the lawyer on the board on an arts organization does, but with City of Night peaking I found myself doing a lot of urgent transactional type work, reviewing contracts, writing contracts, negotiating insurance, documenting grant condition compliance, that sort of thing. The main lifting for this was done by everyone else, but there was helping to set up to do too. The big thing I do at these sort of events I call 'the liability walk-through' and the audacious scale of CoN made that a particularly daunting undertaking. What we were doing there was basically shutting down most of an entire neigborhood, Buffalo's Old First Ward, for live performances, arts installations, historic tours. Oh, and beer drinking, because Buffalo.

Along the way I was struck by the similarity between the two projects. Perhaps because the other people on the board of ELAB are artists I saw that these two undertakings were exercises in creative problem solving. The case I was trying was a full liability matter, and I was working to contain the damages exposure, using a lot of the CPLR and a lot more of my advocacy skills. City of Night was similar: there were mechanical tasks-- filling out applications and the like-- but a lot more was working as an advocate to facilitiate communication between the various independent people and entities that needed to work together.

In the end both events concluded very successfully, and I had that good, exhausted feeling that you get after you've completed a race you've trained hard for, or a day of great skiing. I'd used almost all of my lawyer resources, and I felt pretty good about that.

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