Outside Counsel

I love "Cat and Girl". 

A copy of "The Memoirs of Hecate County" that I'd found at The Strand a few years back recently resurfaced in my To Be Read pile, and I've been picking it up here and there. "The Man Who Shot Snapping Turtles" is pretty frequently anthologized, and I like Edmund Wilson, and I'd always heard that the book was something of a scandal in its day because of its sexual content, but I wasn't finding those bits. Now I have.

"Snapping Turtles" opens the book, which is a collection of six sort of connected stories, some longer than others. It is the only fiction of Wilson's that I'd read to this point, a nice piece of work about the nature of obsession, I suppose. Actually, that seems to be the theme of the work as a whole, but it suffers a little from the formlessness of its structure. "Ellen Terhune", the next story in the book is long, and kind of derivative-- it is sort of a ghost story, and reminded me of "The Turn of the Screw". I got bogged down there for a while-- Wilson always knew good writing, but he has a tendency here to be a little florid. "Glimpses of Wilbur Flick", the story following that, is Scott Fitgerald on an off day, but then we get to "The Princess With the Golden Hair", and there it is, a long, discursive ramble about a man in love with one woman and in a sexual relationship with another that is as frank about sex as can be. It rolls along, describing the narrators complicated feelings, and his elaborate views on the relationship between art and economics, and his straightforward sexual activities. It is the sex stuff that is the best written, actually-- it's quite blunt, in contrast to the rather over-heated prose that surrounds it, and it is easy to see why the audience in 1942 would have been shocked. A great deal of the rest of it is as florid as the title, but it is seriously intentioned, and carefully thought out. It also seems very personal to Wilson, and is a side of the tyrannical "Man in the iron necktie" that I hadn't imagined.

I have always imagined that Wilson was disappointed that he was unable to establish a name for himself as a fiction writer: that's the gold standard, after all, and who would know it better? "Hecate County" is both better and worse than I would have expected; I see that it is back in print, and that is a good thing, even though it is hard to imagine that it is a book that will ever have much of a following.

Jason Kottke's Rules for the NYC Subway. Very sound, although mostly focused on the platform. Something should be said about what foods may be consumed on the train or on the platform: I would propose that one should be barred from eating anything that cannot be completely consumed, no cores, peels or bones, and nothing that requires two hands. Get the hell out of my way, I'm coming through.

The [Non]Billable Hour has a weekly feature called "Five By Five" in which five bloggers are asked to list five things. This week the question was, "If you had the power to change five things about the practice of law, what would you change?" Everyone in the group has at least one suggestion that I completely endorse, but I like Ernest Svenson's list best.

My five would include a change in emphasis from "winning is everything" to working for the just result; greater transparency in the process; an increased willingness to adopt practices and procedures from other legal systems; a return to a culture of community and mentoring within the profession; and a better connection between legal education and the practice of law, including an emphasis on the ongoing relevance of legal education and its institutions to the every day stuff that we engage in.

Tim Riley is interesting on Christopher Ricks' new book, "Dylan's Visions of Sin", and makes, I think, a very important point: it is a huge mistake to take Dylan out of his rock 'n' roll context-- or even out of the context of his music as a whole. On the page, Dylan's lyrics are wrenched out of context, and although sure, he's a poet, he is a poet who practices in a particular form. Elevating the text above the music diminishes both, and diminishes Dylan. I'm reading Robert Shelton's Dylan biography, "No Direction Home" at the moment, and enjoying it quite a bit: it seems clear that from an early stage in his career Dylan's self aggrandizement led him to a sort of imaginary world that became his own invention and that only he could describe. Greil Marcus has written about the "weird, old America" that Dylan's world resembled: it seems to me that Dylan may have inspired Marcus to explore that world, but that the resemblances between Marcus' invisible republic and Dylan's world are as much a product of Marcus' creativity as they are real places that both men are describing. In a way, Marcus' book is like someone writing a history of Macondo-- and Shelton's book is like someone trying to describe Macondo by telling about Marquez' life.

It's the solstice today: "Do you always watch for the longest day of the year and then miss it? I always watch for the longest day in the year and then miss it."

I reckon Elvis Costello is pretty non-essential after his first four or so albums: once we are past "Get Happy!" I think we are pretty much in territory reserved for specialists. I saw Diana Krall a couple of years ago and found her engaging: the romance novel look of her album covers was merchandising and off-putting, but as a performer she was exuberant and playful, with good chops. Geoff Keezer has played with her, which gives her a certain amount of jazz cred with me. Still, I haven't felt the need to own much of her stuff either, and I really only play the sides I have when my parents are in town. The news of their nuptials impressed me as likely to result in collaborations that would not flatter either, and it seems that this has now come to pass. Douglas Wolk's take on the question is pretty much summed up by the rhetorical question, "Are Elvis Costello and Diana Krall ruining each other?". I hadn't planned on buying the new Krall, but I will treasure this quote from Wolk about it: "Krall's performances are mostly so genteel and slackly rendered that the album practically orders a glass of white wine the moment it starts playing."

The CIA World Factbook is one of the most useful resources out there.

I'm late to the Bloomsday party, but sometimes late to the party is best. Designs on You directed me to this photograph of Marilyn Monroe reading "Ulysses". If she was drinking a refreshing Guinness it'd be even better.

 

Proposed Kerry tee shirt designs. (Via Designs on You.) 

I'm not sure where to put this, so I'll cross-post. The US Anti-Doping Agency has decided to introduce a diminished standard of proof for athletes accused of doping offenses. The standard used heretofore (I guess "heretofore" makes this an "Outside Counsel" post) was proof beyond a reasonable doubt-- the standard used in criminal matters. The new standard is "comfortable satisfaction"-- rather novel, I'd say. In civil matters the burden of proof is a fair preponderance of the credible evidence, which is easy to get your mind around. New York's Pattern Jury Instructions defines it as follows: "The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderence of the evidence means the greater part of such evidence.... The phrase refers to the quality of the evidence, that is, its convincing quality.... The law requires that in order... to prevail... the evidence that supports [a] claim must appeal... as more nearly representing what took place than the evidence opposed...."

I guess I don't have a problem with backing away from the criminal standard of proof: what we are talking about here is closer to a civil action than a criminal action: nobody's liberty is at risk, merely the privilege of being permitted to compete. I have a problem with doping rules in general-- actually, I have several problems-- but that's not what is at issue here. Right now I have a problem with changing the burden of proof in the middle of the process, which impresses me as fundamentally unfair; and I have a problem with the new standard. What the hell is "comfortable satisfaction"? Is it just that it sounds so smug? Rules are rules, but this is a rule with no historic definition that I am aware of, and who knows what the parameters are? I'm all for our sport cleaning up its image, but I'm more for fairness and transparency. "Comfortable satisfaction" as a standard of proof doesn't do that for me.

It's funny how it goes in our practice: sometimes I go for months without getting near a jury, then all of a sudden, wham! Today is the first time in three weeks that I am not on trial. For most of the last two weeks we've had two trials going: picking a jury in one, then videotaping testimony for another in the evening. We took verdicts in two counties Monday: I was in Clinton, the North Country, and my partner was in Niagara. Yesterday we settled one during jury selection. This lovely hiatus, this blissful oasis in my trial schedule may not last: I submitted an affidavit of engagement on a matter that is supposed to start tomorrow, since I anticipated that yesterday's matter would take three weeks to resolve. I'll find out today if we are going forward. As much as I enjoy trial work, I could use the break.

Substantive law: A three judge panel of the Appellate Term for the 2nd and 11th judicial districts in the 2nd Department unanimously overturned rulings in two Kings County Civil Court decisions and upheld the constitutionality of the Telephone Consumer Protection Act (47 USC § 227), which bans junk faxes. Rudgayzer & Grant v. Enine, and Bonime v. Perry Johnson Inc.

I mention it because the TCPA is a template for anti-spam legislation, and interesting in that way-- the value as precident, even in New York, is pretty slight. Appellate Term is an odd sort of appellate forum: it hears appeals from Civil Court, which is a court of lower jurisdiction in the five counties of New York City that more or less corresponds with County Court from Westchester north. Professor Siegal tells us that New York City Civil Court is "one of the largest in the world", presumably in terms of caseload volume. I always think of Civil Court as being mostly about real property disputes, although I've tried other sorts of cases there-- it's where Supreme Court remands cases pursuant to CPLR 325(d) when it feels that a matter is not of enough moment to stay in the Highest Trial Court in the State. Although I have tried cases in Civil Court, I've never taken an appeal and been to Appellate Term: I'm not even sure where it sits in the Second Department.

Ten Foods You Should Never Eat. Wouldn't think of eating them, actually, although the Grand Slam Breakfast seems like cheating. (Via Looka!)

Stricken from the record:

Q: Doctor, I'm not asking you what your question to the person is.
A: Well, then I can't answer your question.
Mr. Altreuter: Let him answer the question.
Mr. Cannavo: There is no question. He's--
The Witness: There is a--
Mr. Cannavo -- just testifying--
Mr. Altreuter: Let him answer the question.
Mr. Cannavo: -- contemporaneousley.
Mr. Altreuter: No. He's answering--
The Witness: I'm telling you--
Mr. Altreuter: --your questions.

It just sings, doesn't it?

Happy Birthday Howlin' Wolf! (My question is, how come people called him "Wolf", but Muddy Waters' friends called him "Mud", or "Muddy"? And how are you supposed to alphabetize these guys? And what about Little Walter? Man, the Blues ain't easy, that's for sure.) Thanks to wood s lot for the reminder.

There are certainly ways in which technology has improved the way we go about our glamour profession, but there are just as many that have made it more of a grind. I've been doing this for long enough that I can remember when fax machines were new: a guy I used to practice with was find of saying, "Just because you can send it to me faster doesn't mean I'm going to read it sooner," and he was right. I used to go to the bank to get a couple of rolls of quarters when I was starting a trial: there were going to be a lot of phone calls made, and I didn't want to run out. (No, no-- who said nickels? How old do you think I am?) Cell phones changed that one, and for the better, unless you are in federal court.

Even back then,when we all had huge handlebar moustaches, federal court was where the cutting edge was. Federal judges don't want to be kept waiting, and must golf less than their state court counterparts, because down time is anathema to them. In the Southern District of New York they had "trailing calendars", which meant that you would be told that you were now on 72 hours notice that your trial could start at any time. They didn't want to hear that your testifying doctor was elbow deep in somebody else's abdomen, and not available to testify: if you were "trailing" and thought that your doctor's availability, or the availability of any other witness was iffy, you were told to book time in the videotaping studio in the courthouse.

This was big stuff then, even though now video is ubiquitous, and this presaged a change that has made trial practice more of a chore. Doctors pretty quickly figured out that this technology meant that trial testimony was now something that could proceed to suit their convenience, and life has not been the same since.

Last Friday we found ourselves working until 8:45, videotaping a doctor. In fairness to the doc, we probably could have been done in two, two and a half hours, but, locked in a windowless room we the lawyers let the time slip away as we argued and objected until the evening was lost. I am reading the transcript of this grim death waltz right now, and it is not a pretty thing, not at all.

I got an ice cream maker for my birthday, something I've wanted for some time. We used to have a wooden bucket machine with an electric motor-- the kind that uses ice and rock salt, but it was really more of a novelty than anything else: it was loud, and messy, and it didn't make that much ice cream. In the end the salt got to it, and that was the end of that. I'd still like one with a hand crank, just for fun: a big one, for parties.

My new ice cream machine, though, is a beautiful thing, and like a good appliance should, it frees the mind from preparation, and allows you to think about the different sorts of things it might allow you to do. The KitchenAid is like that, too: when you have that much power, and that kind of capacity, all of a sudden a lot of things that seemed like too much hassle become so simple you almost feel like going into the catering business. With the KitchenAid, for example, making a souffle for supper is so simple that it is only the fact that my offspring are tired of souffles that keeps me from doing it once a week. Fifteen minutes of prep, into the oven, read the Sports, toss a salad, dinner.

Homemade ice cream is now like that. Macerate some strawberries in lemon juice and sugar, mix sugar, milk, cream and vanilla extract, pour into the device, and let it spin for a half hour. It is quiet enough so that I don't really even have to turn the music up. Add the berries towards the end. Thing is, I'm not that big a desert person, so now I'm thinking about what savory ice creams might be fun. When nouvelle cuisine was still controversial, one of the signature dishes that had people buzzing was lobster with vanilla sauce. What about a lobster ice cream? Guinness is good for you , and it has a delightful creamy texture: mightn't stout make a an interesting ice cream? I'm not the first to think of it, or the second, and I don't see that it is all that far off from the green tea ice cream that I already like.... In a way, the main barrier here is the name, "ice cream". If we think of it as something else, the potential as a savory dish, or perhaps as a condiment opens up. Why not Wild mushroom souffle tart with savory Roquefort-Sauternes ice cream? I'll let you know-- although that one sounds like kind of a Fall dish.

To get psyched for the Buffalo Marathon Relay I rented "Chariots of Fire", but I actually ended up watching half of "Zoolander" before going to bed early. I watched "Chariots of Fire" Monday night instead. It goes without saying that the Best Picture winner for any given year is likely to date, but I figured that what was most likely to seem anachronistic in "Chariots" would have been the soundtrack. The movie is, after all, a period piece, set in post Great War England, so I figured if I could get past the synthesizer stylings, I'd be good to go.

As usual, I guessed wrong. The soundtrack is actually still stirring. The movie itself screams "Welcome to the Reagan years," though, and misses its mark far more often that it finds it. For some reason I had confused the Ben Cross character with the Ian Charleson character: Charleson is the devout Christian who declines to run on the Sabbath; Cross is the Jewish son of a financier who encounters anti-Semitism, mostly in the form of the Staler and Waldorf characters played by Sir John Gielgud and Lindsay Anderson. Somehow I'd gotten Harold Abrahams, the character Cross plays, confused with Sandy Koufax. There is probably an interesting movie to be made about the rise of English and European Anti-Semitism in the period between the wars, and "Chariots" hints at it: the disfigured porters at the railway station are not that far removed from Corporal Hitler on some level. This is not that movie. Abrahams comes off as mostly whiny: he drinks champagne, he sings Gilbert and Sullivan, he dates a beautiful actress. He is an almost entirely secular figure, and his complaints ring rather hollow.

Eric Liddell, the Charleson character, fairs better, and this is one of the ways that the movie cheats, I think. Liddell seems to enjoy running, while Abrahams seems alternatively arrogant and despairing. For Abrahams being a sportsman is a means to an end, rather than something that he does for the joy of it. When he loses, predictably, to the saintly Liddell, we feel like we are being set up for the Big Race, but the Big Race never comes. Liddell won't run on Sunday, so the obliging Lord Andrew Lindsay, who says he already has a medal (presumably in the 400 meter hurdles, although not according to the results) sportingly gives up his spot in the 400 meters so that Liddell can run in his place. The whole crisis seems contrived when you know that Liddell was already slated to run in the 200 meters (he took the Bronze); worse, we never get to see a rematch between Liddell and Abrahams. At the last minute the American rivals are introduced. Like the members of a boy band, one is cute and blonde, and one wears a hat-- no doubt period realities prevented there from being one who is multi-racial, and one with a lot of tattoos and a black uniform to be the bad boy of the group. They are so one dimensional as rivals that one of them passes a note to Liddell containing a Scripture quotation that tells us that he is secretly pulling for Liddell to win. Well, duh-- we all are, which is the biggest cheat of all: it would be interesting to have Liddell and Abrahams face each other, but what we get instead is the equivallent of a Kids Fun Run: medals for all!

The takeaway from all this amounts to a great credit sequence, and very little else. Love the cars, like the clothes, and I sort of wish I was named Aubrey Montague, just because it would be so much fun to say all the time.