Outside Counsel

In a funny way, this is turning into my favorite weekend of the year. What it comes down to is that the last weekend in January is so jam-crammed with things that I like that I am almost giddy-- plus, when it is over, everything that comes next seems mellow and easygoing. Today was the final of my Discovery class. This means that the week leading up was spent lining up volunteers to role play witnesses to be deposed. I don't have the words to thank the friends and colleagues that do this-- it is kinda fun, but mostly it is a couple of hours on a Saturday, and I really appreciate that those hours are more precious than frankincense. Thanks all of you for being the part of my class that makes it really worthwhile for my students-- and for helping play out my little law professor fantasy. What I do is watch as my students conduct the same deposition, again and again for eight hours. It is an interesting excercise-- I can see what I managed to communicate, and what I didn't get through on, and where my students came in, and where they are leaving.

Years ago, when I first started working at Acito & Klein, a lawyer came up to me in court and told me that Ray Acito was the best lawyer he'd ever seen. "I've never heard him say 'prior', and I've never heard him say 'subsiquent'," he said to me, and this year I've managed to pass that simple lesson down a bit more effectively than I have in the past. This was an interesting class, and I hope that they got more than just 'prior' and 'subsiquent'-- I think they did.

Tomorrow morning is Mr. Ed's Super Bowl Warm-Up, a 5k run in Middleport, along the Erie Canal-- the most recent addition to my favorite weekend. KRAC ran this as a team last year, but it has been a race I'd wanted to run for a long time. Like a lot of things in my life, like my teaching gig, to pick the most obvious example, it is something that I like doing that I wouldn't do if it weren't for my friends.

When I get back from Mr. Ed's, I'll be off to the Albright-Knox to see Sonny Fortune and Rashied Ali-- this year's Albright-Knox Microsoft Art of Jazz concert. I have every reason to think that A. and I will be hearing some great music. We did last year, when we saw the Campbell Brothers, and this is more up my alley.

And oh, yeah-- there's a football game on after that. All weekends should be this good. (I say Carolina by 14, just because I have a hunch.)

The law library at the University of Texas at Austin has a collection dedicated to The Law in Popular Culture that looks like it would be good fun to spend some time in. I'm not qualified to teach a class like that, I don't think, but I'd love to take one. Check out the filmography and the Legal Narrative E-Texts (I was thinking of "The Devil and Daniel Webster" just the other day: " 'I'm obliged to you, Neighbor Stone,' he said gently. 'It's kindly thought of. But there's a jug on the table and a case in hand. And I never left a jug or a case half finished in my life.' And just at that moment there was a sharp rap on the door."). Don't miss the movie posters. In a way, this is sort of the thing that "Outside Counsel" is intended to be-- a notebook of resources about the culture of law. (Thanks to Librarian.net for the link.)

I've made no secret of my admiration for Ron Rosenbaum's writing, but I have to say that the spectacle of seeing him expound on any aspect of country music impresses me as being even more ludicrous than if I were to do so. For some odd reason there has always been a country music subculture on Long Island, where we both grew up-- it would not surprise me at all to find that the Marshall Tucker Band sells more there than in any other place east of the Pecos, but c'mon. Not only is Rosenbaum from Bay Shore, he went to Yale and he's Jewish. I'm glad to hear that Ron doesn't want low carb beer for his horse, but I still have a hard time picturing him wearing jeans without a crease.

I haven't been doing much traveling lately, but

here's where I've been.
It's a little misleading actually-- I tend to think of travel as something one does to particular cities, which would make the map quite a bit less dramatic.

Discovery Resources. Great stuff, via Ernie the Attorney.

Via Metafilter, the worst toy ever.

Some good points on professional reputation at Stay of Execution. How come I didn't find out about this blawg sooner? It's excellent.

When the case came into the office a while back, I knew it was going to be trouble. A young doctor had slipped and fallen at my client's hotel, seriously injuring his knee. There looked like there would be liability problems, the injury was bad, and I knew the firm representing him to be pugnacious and politically well connected.

Even so, I felt a little guilty when the plaintiff's lawyer called me a month or so into it to tell me that his client had been diagnosed with terminal cancer. My first thought was that this development really simplified the defense of the lawsuit, and I was ashamed, and a bit concerned for the state of my immortal soul because this was my initial response. I recall driving back from the court conference where we set up an expedited discovery schedule thinking, "It'll be like deposing a ghost," and shuddering. When I deposed him though, he was nothing like a ghost. He was a young man in agony, terrified because his training and experience told him exactly what was happening to him, and exactly what was going to happen. He held on, and hung tough for the whole time I was questioning him, and it gradually became clear that this stupid lawsuit had provided him with a crucial distraction during the time that he first realized that he was sick, then realized how sick he was going to be.

From time to time he lapsed into that sort of automatic doctor way of talking that physicians use when they want to avoid giving a direct answer to a direct question. At one point I asked him, "How long..." and he interjected, "Do I have left? That's the million dollar question in oncology, and the truth is, we don't know." I had wanted to ask him something all together different, but I let it go-- it was a moment for him to savor his professionalism and his detatchment, and there weren't going to be to many of those left.

I've deposed terminal patients before, and in my darker moments have even been known to think that we are all terminal. That's what Kurt Vonnegut would say, and I've been know to say it, too. This was different, and when I walked out of the hospital where I'd questioned him I felt horrible-- I'd witnessed genuine, horrible suffering, and been moved by it, but I'd also completely compartmentalized that part of me, and taken a deposition that took a bad case for my client, and made it defensible. It's what I do, of course, but it is not always laid out there quite so coldly.

"Courage" is a word that gets used a lot in situations where someone is dying, but I'm not so sure there is anything particularly courageous about dying. When his lawyer called me today to tell me that he had died, I didn't think of the poor guy as having been particularly brave, but I give him credit for the dignity he showed, and I hope it went easily for him.

5ives is a site full of lists that is hilarious.

Five ill-advised giveaway nights at the ballpark
1. Chinese Throwing Star Night
2. Loaded .22 (with scope) Night
3. Guess Your Cholesterol and Get a Free Footlong Night
3. Leaky Bag of Urine Night
4. Nickel Absinthe Night

Five things you could win at the carnival (1983)
1. Roach clip with feathers
2. Coarsely grained, oddly hard, stuffed animal
3. Lynyrd Skynyrd coke mirror
4. Another throw
5. Big-ass pink comb

Five bad signs about the band onstage
1. Large gong behind drummer
2. 3 guitar players
3. Teleprompters
4. Anyone wearing own band's t shirt (bonus if it's for the current tour)
6. Opening with a cover
(Via Boing Boing.)

I've been working a scream into my conversations, in an attempt to show that it is really mainstream behavior.

Seriously though, what I think is happening here is that the media, who really don't understand Dean, have decided that this episode captures him. I have not understood why he has been portrayed as "angry"-- he is not a particularly angry figure as far as I can see. High concept seems to be what political reporting is mostly about-- Gore the fabulist, Kerry the patrician, Clark as General Waverley from "White Christmas" (actually, that one may be mine). There is a need to have a hook, and the hook for Dean has been that he is this crazy Howard Beale character.

I've liked what Dean has been saying since at least this time last year, and I still do. I cannot imagine any other candidate standing up to what will come, and I have yet to see any other candidate say the things that should be said (except for Al Sharpton-- I wonder what he is really running for?). I do not think that Dean is an angry guy-- I think he stands for the things that I have always believed America is about, and I believe that he is running because he sees the country moving away from those things at a dead run under our present political leadership.

We are living in a dream world if we think that Kerry, or Edwards or Clark are capable of demonstrating that they are a real alternative to Bush. I think that they are-- I'd vote for Sharpton before I'd vote for Bush-- but they are not going to be able to demonstrate that they represent a different way of thinking. None of the Dems except Dean are capable of demonstrating that their vision of America is a better idea, and an idea that is close to the America that we wish we live in, and that we love because of what it can be. Dean speaks to me because his America is my America, and it makes me very sad that the reporting that is going on in this campaign is focusing on this sort of stupidness, instead of the things that are important.

Six months ago, Howard Dean would have called the media on it. I still think that's what he should do. When I look at the place we are in as a nation, I want to scream--anyone would. Because he's enjoyed being on the cover of Newsweek, I am afraid that the blunt-spoken Howard Dean may be reluctant to say, "Hey, let's talk about something real-- instead of the meaningless "American Idol" cotton candy that you are accustomed to filling the news hole with. Let's talk about the fact that the dollar is weaker than it has been in a generation. Let's talk about the fact that the Bush tax cut has made being middle class in America more expensive than it has ever been. Let's talk about the fact that we have the best health care in the world, except that we don't deliver it to the majority of our citizens. Let's talk about the fact that America has been a beacon of hope and freedom for two hundred years, and is now under attack, and stands nearly alone in the world because of the foreign policy that the Bush administration has decided to pursue. Then, when we are done talking about these things, ask yourself: don't you want to scream, too?"

Goddamnit, I want my country back.

Flying back from the City last week, I watched Martha Stewart make a loin of lamb in a black trumpet mushroom crust. We happened to have some lamb around, so I tried it yesterday, using cremini mushrooms instead (they didn't have black trumpet mushrooms-- can you imagine?). Dried mushrooms, pulverized to the consistancy of coffee-- not someting I'd have ever thought of using as a breading, but it worked out quite well. I served it over a leek puree, as Martha instructed, and was pleased with the result. They don't serve that in Tehachapi.

You know, jury selection should be like this for all of us.

Dean's Top 10 List, "Ways, I, Howard Dean, can turn things around." From the home office in Montpelier, presumably.

I came across Nick Hornby for the first time when we were working on the NFL book-- long story short, it was a book about American football for Europeans, so we spent some time reading about and watching the football that the rest of the world calls football so that we would be in a position to draw comparisons that our target audience would understand. Hornby's "Fever Pitch" is strong evidence that the condition of being a sports fan is the same regardless of the sport-- something handed down from father to son, an irrational yearing and enthusiasm that gnaws and consumes and, in an odd way, fulfills. "High Fidelity" was next, and it became clear that this guy got it-- the losers that populate this hilarious novel all obsess about music the way that -- well, actually, the way that I do. A lot of the same music, actually, which made it even better. Over Christmas I picked up "Songbook" (stupid title, by the way-- I can think of a half dozen off the top of my head that would work better: how about "Mix Tape"? Or, "Playlist?"). Like Jesse Orosco, Hornby is just about my age, and as we all know a person's age is one of the best determiners of the sort of things you'll have on your shelf. Although I am more of a jazz listener than Hornby, I found that there was a fairly extensive crossover between my collection and his list. What makes the book fun-- what makes lists like that fun-- are the arguments he sets out to make the case for his selections. His defense of Rod Stewart, for example, is spot on-- Stewart is cool, up to a point, and then he is inexcusable. It is best to pretend that his career ended about the time of "Smiler" and move on. None of want to think about what came next, but what came before was pretty terrific.

I am tempted to say that what I liked about the book was that it was like "High Fidelity" without all the relationship stuff, but of course it is impossible to write about pop music and not have some emotional seepage-- one of the reasons that there is pop music is that it allows even the most buttoned up personality a means of expressing things that otherwise would go unsaid. There is no prettier Valentine than a mix tape for exactly that reason, and that is what Hornby accomplishes in this book.

I have set out to make a CD of his selections, and been largely successful, but there are some that are sufficiently obscure that I'll have to keep an eye out as I prowl the record stores of the world. Hornby knows all about prowling record stores-- serious music fans all do. At least one of the bands that he cites is something I will probably never hear-- a local act that he loved when he was in his 20s called The Bible. You'd think that this would be the sort of thing that would be out there in the vast file swapping network that the music biz says is destroying it, but if it is, I haven't found it. That goes on the list along with "This Is The Planet". I'll find copies of both-- I have a list of a lot of stuff like that. Fans understand. Hornby understands.

Bob Keeshan has died. I caddied for Captain Kangaroo once. He was a gentle voice from my childhood, and it was starting, as we set off down the first fairway, to recognize that voice coming from the golfer whose bag I was lugging.

Jesse Orosco has announced that he is hanging up the spikes. I guess, like most sports fans, the announcement of a superannuated sports figure's retirement sparks thoughts along the lines of, "He's still around?", or, "My g_d, I thought he was as old as John Lee Hooker!" Sometimes when you hear this sort of announcement what you think about are the great moments-- and certainly Jesse gave me those. Everyone remembers the last pitch of the '86 World Series, but for me it was Jesse's performance in the sixth game of the NLCS which was one of the great moments in sport.

I was working late that night, and we tuned in the game on one of the other young associate's Walkman, listening to it through the foam clad headset set on the middle desk in the office we shared as we cranked out a motion, the volume of the stupid thing turned all the way up, but still hardly above a whisper, both of us barely breathing as the game went into the ninth. When it went into extra innings, the partners drifted into the room. "You know," one of them said, "There's an old tv in the file room..." We retrieved it. Old was not the word-- Philo Farnsworth would have been impressed by the fact that it had color, but the quality of the picture was such that it was like watching a television that was sitting on the bottom of a swimming pool. By that time our motion papers were assembled, stamped, and ready to go, and everyone left in the office-- JM and me, the two principals of the firm, the office manager, who had stayed and was waiting for a ride, my secretary, who had stayed to help me; we were all huddled around the box with the murky picture, and there we remained, inning after inning. At a commercial break I called A., who was home by then, and explained that I would be bit late. She waived me off-- whatever Budweiser commercial had been on was over now, and she wasn't about to listen to me when the fate of the Mets depended on the undivided attention of every New Yorker.

Mets' lore has it that just before the last pitch Keith Hernandez went out to the mound and told Jesse, "If you throw another fastball, I'll fight you right here." He threw a breaking ball, and then something amazing happened. From our offices, on the corner of Fifth Avenue and 47th Street there was silence, then the sound of every taxi horn in Midtown, blaring in celebration. The City had been holding its breath on every pitch, and was now able to exhale. Sports can make you feel that good. In 1986 the Mets made us feel that good-- it was a good year to be a New Yorker, let me tell you, and we were all glad that Jesse Orosco was one of us.

Man, that was a long time ago. You can say "Jesse Orosco" to me, and I can still get that chill, but that was a lifetime ago, wasn't it? I mean, Jesse Orosco-- when he broke into the league, weren't there giant ferns waiving just outside the outfield? Jurassic Jesse? My gracious, he had to be about as old as the tv we sort of saw that game on.

My friends, he is less a month older than I am.

Thanks, Jes. For all of it.

Sometimes I think I should have been a Nineteenth Century lawyer. My brother Tom's comix pretty much establish that he actually is a '60's polemicist. You'll find it on the last page-- click to enlarge. (My Antipodean brother pointed this one out to me-- dude, change your Comments system.)

Rafe Colburn has it right: "One of the most frustrating things to me is that it seems so screamingly obvious to me that Bush has to go, that he's not just a bad politician but that he is an absolute danger to the things that make America the great country that it is, and yet probably half of the people in this country see him as a good leader. What do they see that I don't see? Don't the huge structural changes in our country's fiscal position totally scare the crap out of them? Aren't they alarmed by the fact that he seeks to justify his destructive and undermining foreign policy by keeping us in constant fear? Doesn't it bother them that Bush runs around talking about the resurgent economy when the employment situation totally sucks, we're down millions of jobs from when he began, and wages are completely stagnant? Indeed, one of the biggest problems I face when explaining to people why Bush is just so darn bad is that I honestly don't know where to begin. How could I and so many other people be so far apart on this? It baffles me." One place to start might be to point out that at a time when the threat to each individual American's personal security-- physical, economic, you name it-- is greater than it has been in generations-- maybe ever-- we are more polarized than we have ever been, more alienated from our government, and more isolated from the rest of the world. Maybe that last one doesn't seem so important, but it is the most important. There was a moment when the world stood with us, and now we stand alone. The Bush administration has accomplished what the Soviet Union never could-- it has isolated the United States, and taken away our ability to credibly assert that we hold the moral high ground.

Only two days left before National Pie Day. I know someone who won't want to miss it. (Thank you Bifurcated Rivets, for reminding me.)

I was so sure that Dean would surprise by bringing new voters into the caucuses that I almost posted on it. Oh well, I'm big enough to fess up now. I really don't know what happened to Dean, but I think he is a long way from done. I'm glad Gephardt is out of the way, and I think New Hampshire will be the end for Lieberman, and in that connection pass on this remark from Patrick Nielsen Hayden: "Leiberman may actually pull an upset or two in some state that fell off everyone’s radar, but there is no plausible alternate future in which he gets the nomination. Wait, yes there is: all the other candidates die from eating spoiled ham sandwiches backstage at a debate, leaving Leiberman facing only Dennis Kucinich, vegan." Hard to know where Clark fits in New Hampshire against the two New Englanders-- I worry that Dean's vow to repeal the Bush tax cuts will hurt him there, but a top three finish there will still work-- he is on for the long haul. What really bothers me is that we may see something like 1988 again, where there is a different top vote getter every week, and the strongest second choice candidate carries the day. Right now I'm not sure who that is-- my second choice is Edwards, but I don't know if he is widely viewed that way. Props to Slate's William Saletan, who saw Edwards as coming on strong long before the polls showed anything of the kind.

A Blogger's Code of Conduct, from Blogcritics (Via Blogbook-- which provides a gloss on the proposed code as well.) It is harder to write a code like this than you might think-- statutory drafting requires not only clarity in writing, but the ability to anticipate contingencies. I am not so sure that a Code of Conduct is likely to take hold in the blog world, since ease of entry is one of the activities charms, but as far as aspirational goals go, be nice and be honest are good places to start.

Nice article about serving on a jury by Danielle Reed in the Observer. Some years back my brother was on a panel for the retrial of a case that shook out of the BCCI scandal: his stories about the experience were hilarious, and he kept a diary, which turned out to be a three-inch think manuscript. The thing most people never think about jury duty is how boring it is. For us-- the participants in our own little courtroom movie, being on trial is fabulously exciting and action packed, but the folks who decide the case are spending most of their time shut up in a little room, trapped with old copies of People and Good Housekeeping. It is like waiting to see the doctor, I imagine, except that after you get to see him, they put you back in the waiting room-- again and again.

The recess appointment of Judge Charles Pickering is, of course, a disgrace. Clinton was pilloried when he did it, and Clinton had the justification of placing an African American on a court that had been, up to that time, all white. Bush's move is justified, I guess, because it is technically within the rules. "Because I can," has been the rationale for everything this president has done in office to this point, and "technically within the rules" is how he got there. It would be nice to see one of the Senate Democrats who are running for he chance to run against Bush say something about this, but I am not holding my breath. Chuck Schumer has been the guy that has taken the heat on this one, and for that I almost forgive him for his vote on the Iraq war. The rest of the Senate Democrats have been largely silent, although supporting Schumer on this. The difference between Senate Democrats and sheep is that sheep are good for wool.

An amusing list of the top 25 athletes of the last 25 years from ESPN's Eric Neel. There's a race car driver on it, that's how I know it isn't serious.

I work with a famous blogger (and so does she). The sidebar is here. (Thanks to the slighted Byzantium's Shores for the link to the sidebar, by the way.)

A. signed me up to chaperone the City Honors Ski Club this year. It is a pretty sweet deal-- you ride the bus, then ski for free at the nicest slopes in the area. I had never even been to Holiday Valley before, and I now see what I'd been missing. I'll write about the physical depredations that my three or four year layoff have left me ravaged with elsewhere-- right now I'm thinking about teachers. There are three buses for this outing, and CLA was at considerable pains to explain to me that I was not to ride on the bus she was taking. That left me with the bus with the Seniors, which worked out fine-- at that age, the kids are almost human. They are still half-formed, however, and I marvel at whatever filter high school teachers posses that enables them to process out most of what goes on around them. For my part, I skied alone, as is my habit-- I came to the sport too late in life to be a strong enough skier to go with people who are more or less my age, and I am not interested in running with anyone who is as bad as I am. There have really only been a few people that I've enjoyed skiing with, and one of them I only went with once. It is a little melancholy when I'm on the slopes because I do think of the late Judge Doyle Rowland every time I'm out. My law partner clerked with him out of law school, and his approval was sought and required before we were able to start our practice. The format this pilgrimage took was a ski trip, and whatever skills I have at this sport, and whatever philosophy, are skills and philosophy that he taught me over the period of our brief acquaintance. He was a good teacher, and I think that he must have had a good filter, too-- he always seemed to be able to get past the smoke and the noise, right down to the issue at hand, and then explain it. He was a world-class explainer. My last run of the night was my best one-- that was one of his rules, and I thought of him as I attacked the mountain.

I often find myself on the 6:15 flight to JFK. It is mighty early in the morning, and it is never earlier than when you do it at this time of year, when it is so cold that salt doesn't work, and the snow crunches under the tires of the cab, and the whole world feels like a big runny nose. Sometimes travel is glamorous, but mostly, I think, it's a commute-- at least it is for me. The airport is an odd place at 5:00 AM-- it is more crowded than you'd think, but it is still quiet, as though everyone there is muted a bit out of consideration for the rest of the world still asleep. This morning, as I worked my way through the serpentine line to the magnometers, I was joined by the University of Massachusetts basketball team, who had played a game at St. Bonaventure last night. The players were mostly wearing their Nike U. Mass warm-up suits, which, in combination with the fact that they were all just plain big made them stand out in the crowd, and seeing them made me think a bit about the state of college athletics. I picked up a paper once I'd been cleared through security, and noted that these kids (more or less the same age as EGA, and in school a few miles from where she is in school) had lost to the Bonnies, and had played in a nearly empty gym, because St. Bonaventure isn't back in session yet. Doesn't that sort of make you wonder? Olean is not the suburb of Buffalo that you might think it is-- when I go there, I leave myself two hours, and I would be a bit more generous with my time if I were doing it in the teeth of a western New York winter. Figure that the game was over by 10:00 PM-- that sounds to me like about two and a half hours of sleep somewhere, maybe, then on the bus, and to the airport. It sounds to me (and looked to me) like sleeping in your clothes. It sounds to me like some kind of grind, in other words, and for what? U Mass is an okay program, I guess. I suppose kids get drafted out of it sometimes. If these kids got beat by the Friars, though, I'm thinking that none of them are having their moms buy them Hummers anytime soon, though, and even if I happened to be standing on line this morning with the next Carmelo Anthony, is that what college sports should be? I mean, I can't be the only one that thinks that is wrong to take 18 and 19 year old kids and put them in a grinder that has them playing in an empty gym, sleeping in their clothes, and flying out of Buffalo at an hour when any other kid their age is rolling over and dreaming about rabbits. When we are kids, a lot of things that we come to take for granted seem like adventures. When we are kids, a lot of things that we now find to be uncomfortable are merely inconvenient. When we are kids, we don't always recognize when we are being taken advantage of-- but that's exactly what was going on with the kids I saw from U. Mass this morning-- there is no legitimate pedagogical reason for those guys to have to have dragged themselves back and forth from Amherst to Olean like that. Their peers didn't see the game, it can't have been fun, and it is about as irrelevant to a university education as an activity can be to find yourself in buses, gyms and airports squandering your youth. King Kaufman asks, "How venal, how Snidely Whiplash-esque, is the NCAA?" Man, pretty damn Snidely Whiplash-esque is what it looks like to me. I mean, I'm in that airport a couple of times a week because that's what I do for a living. These student athletes are university students-- that's what they are supposed to be doing. Tuesday I was in JFK waiting for the flight back to Buffalo and the waiting area was full of college kids who were comming back from a J-Term in China. It's fine to say that college athletics exposes studnets who might not otherwise have the benifit of the broadening effect of travel to other places, but who are we kidding? The U. Mass Hoopsters saw nothing but airports and gyms this trip, and we all know that the view is mostly the same every time out. This is a commute for them, just like it is for me. Just part of the job. Except that I get paid, and they get-- I don't know what. I guess they get to inhabit a dreamworld, like the people who think about the things they will do with their lottery winnings. Don't you think that an educational institution would want to discourage its students from that sort of thinking? Shouldnt any decent institution of higher learning be teaching its students to at least realistically assess the probability of the hypothetical NBA millions? Shouldn't a university treat its students like students?

There are several worthwhile, or, least interesting, things to note about this NY Times piece about class action suits. I think I will start with this: until fairly recently we didn't know much about the costs associated with this sort of litigation, or really any litigation, because the data wasn't there. Among the effects of not knowing much, I would contend, was a lot of damn fool legislation that came about as a result of purely anecdotal information. Anecdotal information, I am compelled to add, that came from parties which had an ax to grind, or an ox to gore. It seems to me that one of the first people I ever heard of who started to study what was actually going on in the courts using social science techniques was my friend Lucinda Finley, who has pretty much established that the tort system unfairly discounts women's personal injury claims, and thus demonstrated a systemic sexist bias in the legal system-- but if others got there first, I will happily revise this observation. In any event, Professor Finley is the one that showed me the data, and that has had a profound effect on the way I look at jurisprudential outcomes since.

I am a believer in the idea of the "private attorney general". I am, by training, a social scientist. It is interesting that the "science" of jurisprudence has been closed for as long as it has from the other social sciences, but that time seems to be coming to an end. I think that is a good thing.

The other thing that is notable about the class action study? It tends to establish that Orrin Hatch is a putz. As is the case often with social science studies, this is hardly a surprise-- Orin Hatch is quite possibly one of the worst US Senators ever, all-time . Still, it is always nice to see him caught in the headlights like this. I have been in the room and watched Hatch as he transforms into a gigantic green viper-- anybody who has read "The Silver Chair" need hear no more. This is a man who testified before Congress that giving the citizens of the District of Columbia the right to vote in presidential elections would be the equivilant of granting electoral votes to minorities on the basis of their racial or ethnic status. Hatch is worse than a bigot-- he is a bigot who fancies himself a sort of intellectual. Anytime anything reveals him for what he is I am thankful for it.

John Elway, or course. Barry Sanders? Probably the best running back I've seen play. Certainly. George Yong? I think he should be a lock. I think Harry Carson belongs too. Why, why, why isn't Ralph Wilson on this list?

From Slate's "Fraywatch":

"'What was the reason for the war in Iraq? Sept. 11 was the reason; Sept. 11 did not come from a single Bad Guy; it was a product of the larger totalitarian wave, and the only proper response was to comprehend the size and depth of that larger wave, and find ways to begin rolling it back, militarily and otherwise;mostly otherwise. To roll it back for our own sake, and everyone else's sake, Muslims' especially. Iraq, with its somewhat antique variation of the Muslim totalitarian idea, was merely a place to begin, after Afghanistan, with its more modern variation.

'US strategy to defeat Islamic terrorism after 9/11 rapidly emerged with four equally important parts, the first three of which are presumably not all that controversial (except on the Left where no action beyond arresting terrorists caught red-handed seems to find support):

'1) Upgrade security on more vulnerable US targets and create new systems specifically designed to impede the more likely high-casualty terror assaults;
2) Mobilize US police and intelligence resources and in cooperation with those of friendly governments, find and disrupt, arrest or destroy terrorist operatives;
3) Take the fight directly to the enemy by the assault on Afghanistan and the coextensive overt and covert operations against Islamic guerrillas in such disparate locations as the Yemen, the Horn of Africa and the Philippines;
4) Seize Iraq and topple Saddam to achieve several vital aims simultaneously:
a) Eliminate an Arab regime that was implacably hostile to the US and, thus, far more likely to give aid to other US adversaries than most nation-states.
b) Eliminate one of a few regimes in the world (identified publicly as the "axis of evil") that were both hostile to the US and, it was presumed by everyone, possessed WMD of one sort or another that in the hands of terrorists could make 9/11 look like a minor prelude.
c) Inject US military forces into the heart of the Middle East where they would or could menace Iran, Syria and Saudi Arabia and the rest of the states of the Arabian peninsula and, thus, bring the maximum pressure on all of these states to cooperated with the US in crushing anti-Western Islamicist terror groups.
d) In particular, create a situation where the Saudi monarchy is forced finally to choose sides in this struggle;
e) Create within Iraq a new government that would be closely aligned with the US and serve as both an ally and a model (in the Friedman sense) for other Arab and Muslim states or, at least, their modernity-oriented elites.'"

Arguments that are structured like this cheat by getting you to start nodding, so that by the time they get to the false premise, you are a bobblehead, and don't notice that you have just bought into a huge hoax. I'd told myself that I was going to try to be more about law in Outside Counsel, and less about this sort of thing, but I am going to sneak this in now because the Fray poster here is using an advocacy technique that should be called on. Let's break it down:

"US strategy to defeat Islamic terrorism after 9/11 rapidly emerged with four equally important parts, the first three of which are presumably not all that controversial (except on the Left where no action beyond arresting terrorists caught red-handed seems to find support)."= Any reasonable person who loves America would agree with these points. Arguments that start this way are almost always trying to get you to buy into something that you know better than to accept; they work because they are an appeal to our self opinon that we are reasonable people-- maybe that's true, but it does not establish that the argument is reasonable. This is like saying, "If you have a sense of humor, you will find this joke hilarious." Not if it ain't funny, I won't. You'd be surprised how many people will laugh if they are set up like this-- mostly, the ones with no sense of humor at all. Who do you think the appeal to the reasonable works best on?

"1) Upgrade security on more vulnerable US targets and create new systems specifically designed to impede the more likely high-casualty terror assaults." This is arguing the ends vs. the means, of course, and not very subtly. He's got me nodding already, notwithstanding that where he is going with this has me taking off my shoes at the airport, for no real reason, and even though the sorts of things that would actually upgrade security are precisely the things-- like benefits for reservists, or education and health care funding, or engaging our longstanding allies in mutually beneficial foreign policy decision making-- that the Bush administration is failing to do

"2) Mobilize US police and intelligence resources and in cooperation with those of friendly governments, find and disrupt, arrest or destroy terrorist operatives." This also makes sense to me. I wish we were doing it.

"3) Take the fight directly to the enemy by the assault on Afghanistan and the coextensive overt and covert operations against Islamicist guerrillas in such disparate locations as the Yemen, the Horn of Africa and the Philippines." Again, a pretty mainstream notion, particularly to the extent that doing this goes forward on a collaborative, cooperative, multilateral basis.

"4) Seize Iraq and topple Saddam to achieve several vital aims simultaneously" Whoa, whoa! Where'd that one come in? Let's look at the "vital aims": "a) Eliminate an Arab regime that was implacably hostile to the US and, thus, far more likely to give aid to other US adversaries than most nation-states." From the evidence, this category of Arab regimes is pretty broad, and includes, inter alia, Saudi Arabia. Down this path lies the US occupation of almost every place in the Middle East except Israel, and a lot of other not so nice places besides. "b) Eliminate one of a few regimes in the world (identified publicly as the "axis of evil") that were both hostile to the US and, it was presumed by everyone, possessed WMD of one sort or another that in the hands of terrorists could make 9/11 look like a minor prelude." A lie. There does not appear to be any other word for it at this point, and employing this argument at this point amounts to pure chutzpah. "c) Inject US military forces into the heart of the Middle East where they would or could menace Iran, Syria and Saudi Arabia and the rest of the states of the Arabian peninsula and, thus, bring the maximum pressure on all of these states to cooperated with the US in crushing anti-Western Islamic terror groups." Another way to describe this might be to say something like, "Become an enemy occupying regime by means of overwhelming military force so that those you are opposing are left with no other means of resistance except terrorism." Ask Israel how that plan is working out for them. Then ask if this is something we need to or even can do, seeing as we are an invading army. Ask yourself, "When was the last time, historically, that an invading army was able to sustain its position over anything other than the short term? When was the last time that it worked out for the invader?". "d) In particular, create a situation where the Saudi monarchy is forced finally to choose sides in this struggle," Calling a spade a spade at this point in the argument gets points for candor, or swagger, or something, but there is nothing that I've seen that suggests that this is actually what is happening, and, I submit, from what we know about the roots of al Qaeda, if what the Bush administration is thinking is that the Saudi elite will line up with (I almost said "The West"-- there is no more "West"-- at least, none that includes us) the US, they are pretty sadly misinformed. "e) Create within Iraq a new government that would be closely aligned with the US and serve as both an ally and a model (in the Friedman sense) for other Arab and Muslim states or, at least, their modernity-oriented elites." Because that worked out so nicely when we tried it in Iran thirty years ago. Or have we forgotten that?

I've heard my share of summations that worked like this, and they are tough arguments to beat if you don't have the last word. This one is put together rather well, but it is false through and through, and amounts to -- well, I don't like to say what it amounts to, or sounds like. I keep thinking that the Nazis' pretext for invading Poland was that it constituted a threat to Germany, and I hate that this is where my mind keeps going: "There must have been Germans who thought like this."

I still haven't had a chance to read Sunday's NYTimes piece on on-line journals-- the way it works in our house is that everyone gloms on to the magazine, then A. gets it at the end of the day to do the puzzle. If you read any other part of the paper, the chances are good that you will miss your turn, so I'm linking to it here for future reference.

Bluishorange announces Headley's Laws. Certainly true as far as teaching goes, and, I think, true for parents too. The fact that you can't explain how it is to your children is the saddest, most frustrating part of the parenting experience-- but it is part of what makes teaching fun, so go figure. Must have something to do with emotional investment.

"What are we suing for?" is a question that clients ask all the time. The truth is, the number stated in the complaint, at least in personal injury cases, is pretty much plucked from the air, and it has always been awkward to explain that although the ad damnum clause says "One Million Dollars" (You have to say it like Mike Meyers for it to be funny), their case is actually worth --uh-- quite a bit less. Like, a lot less usually. So comes now the New York State Legislature, which has amended CPLR §§ 3017 and 4016. As amended these statutes now read as follows:

§3017. Demand for relief. (a) Generally. Except as otherwise provided
in subdivision (c) of this section, every complaint, counterclaim,
cross-claim, interpleader complaint, and third-party complaint shall
contain a demand for the relief to which the pleader deems himself
entitled. Relief in the alternative or of several different types may be
demanded. Except as provided in section 3215, the court may grant any
type of relief within its jurisdiction appropriate to the proof whether
or not demanded, imposing such terms as may be just.
(b) Declaratory judgment. In an action for a declaratory judgment, the
demand for relief in the complaint shall specify the rights and other
legal relations on which a declaration is requested and state whether
further or consequential relief is or could be claimed and the nature
and extent of any such relief which is claimed.
(c) Personal injury or wrongful death actions. In an action to recover
damages for personal injuries or wrongful death, the complaint,
counterclaim, cross-claim, interpleader complaint, and third-party
complaint shall contain a prayer for general relief but shall not state
the amount of damages to which the pleader deems himself entitled. If
the action is brought in the supreme court, the pleading shall also
state whether or not the amount of damages sought exceeds the
jurisdictional limits of all lower courts which would otherwise have
jurisdiction. Provided, however, that a party against whom an action to
recover damages for personal injuries or wrongful death is brought, may
at any time request a supplemental demand setting forth the total
damages to which the pleader deems himself entitled. A supplemental
demand shall be provided by the party bringing the action within fifteen
days of the request. In the event the supplemental demand is not served
within fifteen days, the court, on motion, may order that it be served.
A supplemental demand served pursuant to this subdivision shall be
treated in all respects as a demand made pursuant to subdivision (a) of
this section.

Rule 4016. Opening and closing statements. (a) Before any evidence is
offered, an attorney for each plaintiff having a separate right, and an
attorney for each defendant having a separate right, may make an opening statement. At the close of all the evidence on the issues tried, an
attorney for each such party may make a closing statement in inverse
order to opening statements.
(b) In any action to recover damages for personal injuries or wrongful
death, the attorney for a party shall be permitted to make reference,
during opening statement and/or during closing statement, to a specific
dollar amount that the attorney believes to be appropriate compensation
for any element of damage that is sought to be recovered in the action.
In the event that an attorney makes such a reference in an action being
tried by a jury, the court shall, upon the request of any party, during
the court`s instructions to the jury at the conclusion of all closing
statements, instruct the jury that:
(1) the attorney`s reference to such specific dollar amount is
permitted as argument;
(2) the attorney`s reference to a specific dollar amount is not
evidence and should not be considered by the jury as evidence; and
(3) the determination of damages is solely for the jury to decide.


I am often critical of tort reform tinkering with our rules of civil procedure , but this seems to me to be quite sensible.

Facemask fashion. Interesting that the Bills were in on this wave fairly early, but what I want to know is when they are going back to the standing Buffalo.

Progressive Rock is a guilty pleasure, at best. This list, of prog records one needn't be embarrassed to own, is not the same as what mine would look like (I suppose that's the Gabriel to pick, although I am fond of the second solo outing; I like "Foxtrot"; but "Close to the Edge" is not the Yes album I'd chose). Of such quibbles are enjoyable beer-fueled evenings made, I guess. "Exposure" would be on my list, and "Before and After Science". Maybe Utopia's "Another Live"-- but probably not, now that I think of it. "A Wizard, A True Star" might be a possibility. (Via The Morning News.)

The interesting thing about this afternoon's KRAC discussion was the preparation that was brought to it. I suppose I should have realized that people who negotiate for a living would come to the table having done their homework-- I had-- but while I came with information about course conditions and appealing venues, our Captain and The Piper came with the hard numbers about training and time commitment. It was the difference between making an emotional appeal, and making an argument based on the facts. Notwithstanding the facts, it looks like we are on for a marathon. We are leaving venue open for the moment, although we will probably be in North America-- Chicago, Columbus, and Toronto are apparently the consensus top three. What this means in the long run is that there are going to be some long, long runs. It should be interesting.

CLA and A both wanted to see "The Return of the King"; LCA did not, and I was indiferent at the prospect. The list of movies that are presently out there that (a) I want to see, and (ii) are something that I would bring LCA to is a short one-- I figured she wouldn't like "Lost in Translation", and "American Splendor" seemed iffy too, so we went to "Big Fish", and I am glad we did. Someone has done a very bad job of promoting this movie-- I am not sure quite what I expected, but I thought whatever it was would be frothier. "Big Fish" is, in fact, a love story, although it is a Tim Burton love story, so it is more like "Edward Scissorhands" than like anything else I can think of. Somehow I'd thought that it was going to be a story about a fabulist whose fantastic stories turn out to be true, but I think instead it is about a man who lives in a fantastic world, and sees exactly how wonderful it actually is. I liked it-- a bit draggy at times, but mostly quite good. I am surprised that it received the tepid critical response that it did, and recomend it.

I guess we are always busy in our glamour profession (at least, I hope we are) but there is a distinct rhythm to it, and sometimes we are crazier busy than others, and January is one of those times. Naturally that means that January is the time that we pile on a little extra to fill our days, on top of the trials, and motions, and depositions that we put over into the new year starting some time around Thanksgiving, which is why I teach, and promise articles, and commit to bar committee assignments and whatnot. Because, really, if you are a litigator, what you live for is the endorphin rush that comes from being under the gun. We like it when it's like this. There is a scene near the end of The Wind in the Willows when they are planning to re-take Toad Hall where the Mole is busying himself with the equipment: "Here's a sword for the Rat, here's a sword for the Mole, here's a sword for the Badger. Here's a pistol for the Rat, here's a pistol for the Mole, here's a pistol for the Badger." Right now that's what we're doing, getting ready for a hearing.

The form my Discovery class takes is one evening of lecture, which must be pretty dull, followed by mock depositions for the remainder of the term. I find these fascinating, and the students get a bang out of it too, once they get going. Last night was our first go at it. There is always someone who is meticulously prepared, and someone who wants to dive in and wing it (that would have been me, if a class like this had been offered in my day), and then a lot of students who want to dive in, but hold back and kibitz instead. It gets better as we go along, and the kibitzers get their nerve up, but right now I am pretty happy with the class. They seem like a bright group, and they pretty much all participate, and they seem to all be thinking. So, crazy busy though we are, I am getting that endorphin thing, and I love that.

Reading the Howard Dean profile in this week's New Yorker I was stuck by the fact that, although much is made of the notion that Dean and Bush share similarly "patrician" backgrounds, very little is ever said about how really different the two men actually are. Indeed, the stuff about the similar backgrounds seems to come down to the fact that they both came from families with money (a pretty relative thing, by the way), and they both went to Yale. Thinking about the lives they led after leaving New Haven pretty conclusively demonstrates that the two men couldn't be much more different: Bush became a sort of business man, parlaying his family connections into a series of deals that made him a pile of dough; Dean went to med school (not even a very fancy med school), then started a rural medical practice. Maybe I'm just being dense, but this does not seem to me to suggest that they both have a lot in common, and I question where that comparison comes from.

You know how, sometimes, you look at your key chain, and you say, "Now what the hell is this the key to?" Tuesday I found out that one of mine is a classroom key from the law school. I can't tell you what a load off my mind that is.

Aww, man. Tug McGraw is dead. See, now there's a guy who was passionate about the game and not a jerk. A Rose teammate, too, although for me he'll always be a Met. "You gotta believe!" was one of the things that first made me love baseball.

When I got into the car last night, A. announced, "I am so mad about Pete Rose. Who does he think he is? 'I lied for fourteen years, and now I should be in the Hall of Fame?' They're going to put Martha Stewart in jail for lying, and he's a hero?" She went on like this for a bit more, and I thought, "This is another one where baseball shoots itself in the foot." A. is a baseball fan, but not by any means an obsessive. She is a Red Sox fan, and a Mets fan-- which can create a certain amount of cognitive dissonance, as you can imagine. She was in the stands for Game Six, she's seen Rose play-- she is the sort of person who you would think the sport would like to stay on the good side of, if only because she doesn't object if I want to go to a game, and would usually want to come too. Baseball has a knack for alienating its best fans, though, and I think the Rose situation is one more way that it has found to do it. I mean, think about it-- hoops fans don't complain nearly as much about how much NBA players get paid as baseball fans do. Hockey fans are rarely heard to complain about the NHL's drug policy. Baseball fans, though, live in a state of near constant betrayal by the game they love, and here comes one more example. If Rose hadn't bet on baseball, (and then lied about it) he would have been an automatic Hall of Faimer-- and a jerk. The Hall was never going to change the fact that he was a jerk, just like his plaque wouldn't have shown him with a decent haircut. His accomplishments on the field-- not least the hits record-- would have been enough to overcome his personality deficits. But let's face it, Rose was never the sort of player that was universally loved-- he ended Ray Fosse's career (because he was a jerk), and this Bud Harrelson fan is never going to admit to more than respect for Rose's doggedness-- because he is a jerk. You could go around the league-- fans in every city will have a story about Rose that illustrates that he was a jerk. You could see past that because he played the game hard, but once he stepped over the line, (and lied about it for fourteen years), well, you should pardon the expression, but all bets were off. Pete Rose does not belong in the Hall of Fame. He believed in the game so passionately that he allowed it to consume him, then he broke faith with it. You don't get to be an immortal when you break faith-- you get left, like Moses, standing outside looking in.

Bush in 30 Seconds is a contest sponsored by MoveOn.org: choose the QuickTime advertisment that "best challenges a current policy of President Bush and his Administration by effectively communicating, in an informative, memorable and creative way, a current issue or topic." I like 'em all, but I am particularly fond of this one, which may over-egg the custard a bit; or possibly this one, which gets it spot on.

In yet another "Well, duh" moment (maybe that's all we'll have in 2004-- that might be nice...) Pete Rose admits that he bet on baseball. I fail to see how this admission gets him into the Hall of Fame, since it amounts to admitting that he has been lying about betting on baseball all this time. Sorry, Pete. I saw you play many times, and you really were a hell of a ballplayer, but that's not all the Hall is supposed to be. Your job was to be a hero, and you blew it. It happens, people screw up. Sucks being you, but you brought it on yourself. I'll lose all respect for the HOF if they let you in now

Bradley to endorse Dean. Hardly surprising, Bradley was as close to being a Beltway outsider as you can be when you are a senator-- he was always a maverick. The announcement is notable because it demonstrates something important about the Dean campaign that does not seem often commented upon: this guy has a sense of timing to rival Art Blakey. The Gore endorsement came at the perfect moment, now this, on the eve of the Iowa caucuses. Brilliant. Watch for the key endorsement on the eve of Super Tuesday, and tell me if I'm not right. People talk about Dean as though he is this amateur-- he has all the killer instincts, and all the tools, and he is really prepared to take the fight right to Bush. Polls that postulate the outcome of a Dean/Bush race right now mean nothing-- people are just starting to pay attention. Once the nomination is locked up, I think we will have a race on our hands, and I love the idea of Dr. Dean debating the Frat Boy. Jeb's brother doesn't have the wit-- his only advantage is that he's taller, as far as I can see. He won't have Condi Rice standing behind him at the lectern-- on his own, he's a big nuthin'.

Charles Lee Mudd, Jr. is an attorney with a site that provides some excellent legal background on the RIAA Legal Initiative (otherwise known as suing your best customers). (Via Boing Boing.)

My 4th Department hot streak continues. To be sure, this was one that we thought we should be winning all along, but it's nice to see that the Appellate Division saw it that way, too. Causation arguments are tough, I think-- they lie right on the line between fact and law, and it takes a certain terpsichorean skill to make a court see it your way. I've read Palsgraf a hundred times, and the PJI Causation charge thousands, and it still makes no concrete sense to me-- you could flip a coin and get the same result on the close ones.

Eight flat. My average mile split yesterday was eight flat. I'm the first to recognize that this is not a pace that will set the world ablaze, but I'm pretty happy with my progress. 7:44 for the first mile, running easy after a congested start; 15 and change at the deuce, so obviously the wheels fell off after that-- I could feel it happening, but there wasn't much I could do about it. One thing I can do going forward is get off the treadmill and run outside more regularly. I am focusing on splits, rather than overall time, or place in my age group, because splits give me a better picture of where I am right now. I doubt that I'll ever be fast again, but for the moment it looks like I'm on a comeback.

Props to Dave Nuzzo, who ran 7:29 splits, 20th in our age group notwithstanding the gentle cough he alibied himself with at the starting line. And is it possible that John Ferroletto is 50?