Super Lawyers
William C. Altreuter

Tuesday, November 25, 2014

Naturally I have been thinking about the grand jury's failure to issue a true bill in the Darren Wilson case. I’ve never done any grand jury work, but as a trial lawyer I know this: a good way to lose a case is to over-try it. Three months is a long time for a panel to consider the question of whether probable cause to believe a crime was committed exists. My former prosecutor friends tell me that one develops a relationship with a panel, and it is pretty easy to read their intentions. This could have gone in quick and easy, but instead it went in long and hard– and now the DA’s office has an anonymous Grand Jury to stand behind. The smart play would have been to go for jury nullification at trial, but nobody said they were looking for smart.

Paul Campos notes that there are some peculiar aspects of Missouri law at work here:
The relevant law here consisted of Missouri’s statute regulating the use of deadly force by police officers, as modified by Supreme Court decisions that put limits on how much freedom states can give police to use such force. On its face, Missouri law still follows the old common law rule that it’s lawful to shoot and kill a fleeing suspected felon, even if the suspect doesn’t pose an immediate danger to the police or the public. That rule was declared unconstitutional by the Supreme Court nearly 30 years ago, but Missouri hasn’t yet revised its statutes to reflect this. Because of that Supreme Court ruling, the grand jury in this case was instructed that—under current Missouri law—Wilson could have legally shot and killed Brown only if Wilson “reasonably believed that [Brown] was attempting to escape by the use of a deadly weapon or would endanger life or inflict serious physical injury unless arrested without delay, and [Wilson] reasonably believed that the use of deadly force was immediately necessary to effect the arrest of the offender,” to quote the standard jury instruction used in the state.
And now a word from Bob Dylan:
In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that the ladder of law has no top and no bottom
It's all done in our name you know

Sunday, November 23, 2014

I don't do a great deal of appellate work, although I enjoy it. I was rusty when I appeared before the 4th Department last month, but I felt okay about it because I know and respect the judges who were on the bench, and therefore had  a fairly high level of confidence in their ability to get it right. Today I got the decision, and my confidence was rewarded.

Saturday, November 22, 2014

This semester I helped a Buffalo State PolySci professor coach two moot court teams for a tournament that will be taking place this weekend. Unfortunately, snow happened, and they aren't able to get out and go to Ohio for the competition. I'm sure they are disappointed, and I am disappointed for them, but here's the thing-- they worked really hard, and learned a great deal in the process, and that was what the point of it all was. The progress they made over the course of the time I was watching them was tremendous, and will stay with them for the rest of their lives.

Over the course of my sideline as a teacher one of the things I have learned is that the hardest thing to teach is delayed gratification. We have to work to get better at things, and in many ways the work we do to accomplish that-- to get better, is where the real value is. Every cross-examination, every brief, every oral argument is important for the immediate task but is even more important for the next case, because that becomes the platform that you build on for the next case. Alejandra, Yesenia, Heather and Katie worked damn hard, and they will be better at the next thing they do because they learned how to prepare. I'm really proud to have worked with them, and I hope they enjoyed it as much as I did. I think they probably did.

Friday, November 21, 2014

I was thinking that we might have a bit of a Mike Nichols retrospective, but in fact he was so prolific that it is difficult to avoid his work. Last week, for example, we watched Closer, a movie that surprised me-- I kept getting exasperated with the characters but felt like I had to keep watching. The other evening I came home to find that A and CLA were watching The Birdcage. Regarding Henry and Wolf are kind of Lawyer Movies that I have to account for in my ongoing Lawyers in Movies project. And of course The Graduate and Barefoot in the Park are evergreens.

So instead, a couple of things that Nichols had to say about filmmaking and storytelling. First, via Mark Evanier, five rules for filmmaking:
  1. The careful application of terror is an important form of communication.
  2. Anything worth fighting for is worth fighting dirty for.
  3. There's absolutely no substitute for genuine lack of preparation.
  4. If you think there's good in everybody, you haven't met everybody.
  5. Friends may come and go, but enemies will certainly become studio heads.
And then there is this: "There are only three kinds of scenes: fights, seductions, and negotiations. Oh, and contradictions. As Elaine used to say, “When in doubt, seduce.”

Monday, November 17, 2014

Here's a modest ethical dilemma: you can be an organ donor, or you can donate your body to a medical school, but you can't do both. (You can donate your corneas and still give your body to a medical school, but that's it.) My inclination is that organ donation is the way to go, and if I keel over after I post this that's what will happen: they will check my wallet and strip me for parts, and that's fine. However, if I donate the works to UB's medical school, they take care of disposal.There's a lot to be said for that. Organ donors' families get the hull back, so they still have to deal with all the funeral industry bullshit. It seems to me that organ donation offers the potential for doing the greatest amount of good overall, but I like the idea of finishing up on a slab on campus, and the simplicity of it is appealing. 

Friday, November 14, 2014

Fridays are Law Days (sometimes) here at Outside Counsel. Today, recent developments in the law of forum non conveniens. At various times forum non conveniens has been a valuable tool to have on our belt. Our hospitality practice frequently involves case in which the plaintiff was injured while on vacation, and until Daimler AG v. Bauman New York's liberal long arm statute meant that suing, for example, a Mexican resort in Nassau County didn't require much of a jurisdictional showing with regard to the contacts the resort had with the Empire State. Daimler is going to be a big mess, but until that all gets sorted out it is still more or less true that New York courts can't do much on their own about  actions that have nothing to do with New York State if the parties want to litigate here. The rule has been that a party must bring a forum non conveniens motion for the court to consider whether it maybe makes sense for a matter to be litigated elsewhere. (As the kids say, See, e.g. VSL v. Dunes Hotels & Casinos.)

Comes now Mashreqbank PSC v. Ahmed Hamad A1 Gosaibi & Bros in which the Court of Appeals holds that although nobody asked to have the case in chief dismissed on forum non conveniens grounds, the fact that a third party defendant so moved was sufficient to allow the court to consider the matter globally, and dismiss the whole shootin' match. Even more interesting, the court found that even though the decision to dismiss on forum non conveniens grounds is usually discretionary, in this instance the case was "one of the relatively uncommon ones in which dismissal on forum non conveniens grounds is required as a matter of law." There is a lot there to chew on. For one thing, as a general rule a motion for a forum non conveniens dismissal is nearly always best brought in the early going. It gets a lot more conveniens for everybody if there's been some discovery had, for example. New York makes a big deal about what a swell forum it is for international dispute resolution, and it would be interesting to know the extent to which being a favored forum for that sort of thing contributes to the economy. It's not a sneeze would be my guess, but Mashregbank seems like it injects an element which will muddy the waters somewhat. (On the other hand, seeGeneral Obligations Law §5-1402(1).)

As a rule it has been our experience that the best practice is to first remove to federal court cases that we want bounced on forum non conveniens grounds. For one thing, the rules are a bit more straightforward, and for another, since federal courts are courts of limited jurisdiction anyway they tend to be less bashful about dismissing stuff. That's still going to be the way we'll go when we can.

Monday, November 10, 2014

More for the Lawrence Brose file: this piece, which appears in today's Buffalo News (and was on line last week) represents the culmination of the media strategy we orchestrated. From our first involvement we knew that it was important to make people comfortable with the idea that they should stand with Lawrence. Some people were with him from the beginning, but others, stunned by the charges, needed to be brought around. One way to do that was for the supporters to make their support more public, which we did by asking them to write letters for circulation to the wider community. Those can be found here. The late Doug Ireland wrote a widely distributed piece--  one of the last causes he championed. And then there were the things we wrote-- for Buffalo Spree, and ArtVoice, and AfterImage, each venue selected to reach a different constituency. Some of this was seat of the pants decision-making, but for the most part it was calculated on our part, and it seems to have worked. In the immediate aftermath of Laurence's arraignment a Google search for his name led to page after page of negative news coverage. That is no longer the case.

The sentencing is November 25. Checks can be sent to The Center for Reason and Justice, with "Lawrence Brose Legal Defense Fund" in the memo line

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