Outside Counsel

Every time Charley Pierce says something he manages a moment of wit and clarity that so perfectly capture the situation that I can only marvel.

"George W. Bush changed my life.

He showed me at last that the nun had been wrong, that being obstinate was all that really matters in this life. No more sifting of endless options. No more of that exhausting reflection. Decide what you're going to do and, evidence and common sense be damned, just go do it. Who are you going to believe, yourself or your own lying eyes? It was not a good thing to be stubborn about being flexible. Far better to loosen up and get really obstinate.

(I took the president quite seriously as a role model because, well into adulthood, he apparently was quite stubborn in his flexibility toward the healing properties of strong drink and toward the relative necessity of actually working for a living. Of course, he was most stubborn in his flexibility toward the state of Alabama in 1972 -- which he evidently regarded as a noncorporeal state, much like the state of grace in that you didn't have to be there to actually be there.)

Now, I do not have a large military and a compliant Congress, so I am unable to start a war and then obstinately insist that the country I have invaded is rapidly turning into Rhode Island when all the available evidence indicates that it actually is turning into the Land of Mordor. However, it’s an approach easily adapted to the small but surmountable problems of daily living.

Like the oil light, for example. "

I'm not hugely tempted by the "Vote for Change" shows, but this could be hard to pass up. Bruce Springsteen says: "I always felt that the musician's job, as I experienced it growing up, was to provide an alternative source of information, a spiritual and social rallying place, somewhere you went to have a communal experience.

"I don't know if someone is going to run to the front of the stage and shout, "I'm saved" or "I'm switching," but I'm going to try. I will be calling anyone in a bow tie to come to the front of the stage, and I'll see what I can do."

I've always been in the back at the Springsteen show. Being up front would be pretty cool.

When we compare systems one of the problems we encounter is that there are fundamental basics that are the foundations of each system, and it is important to keep in mind that these foundations are different. The next thing to keep in mind is that we need to know what these basics are in each system before we can start making comparisons. The third thing to remember is that a country's legal system, as import as it is, is not the same thing as the country-- there are societal fundamentals that underlie the fundamentals of the legal system, and until we have a handle on those basics we may make the mistake of drawing conclusions that seem correct, but are really premised upon incomplete assumptions or inaccurate information. If you compare European products liability law to the law in the US, for example, you will find that many of the concepts seem the same. Why then are products cases comparatively rare in Europe? Why are damages awards so much lower? The conclusion that is eagerly leapt to when these questions are asked is that juries are the difference. Europeans are eager to argue that it is foolish to have unschooled, untrained laypeople make what appear to be judicial decisions, and US lawyers and the insurance industry are prepared to make that argument as well. Europeans believe that contingency fees are unethical, and they are not allowed to accept cases on that basis. The US defense bar and the insurance industry are happy to argue that contingency fees drive up the cost of litigation.

Neither of these arguments is seeing the whole elephant. As we discussed in our last post what drives US damages awards really is, for the most part, the amount of the actual economic damages that injured plaintiffs are able to prove. The reason that awards are lower in Europe is that the actual damages that persons injured in Europe are lower, because social welfare benefits take care of things like future lost earnings and medical expenses.

Contingency fees are irrelevant to damage awards-- the real cost of litigation comes, not from the 1/3 that plaintiff's lawyers get in the 50% of the cases that go to verdict and are successful. The cost of defense on the cases that should be settled and aren't is the problem. I would submit that these fees are also pretty irrelevant to the question of what the costs of litigation amount to in our society, but really the question is, "Why don't we know?" There are a lot of anecdotal attacks out there, but not so many studies employing reliable social science methodologies, and until we have that we are all whistling in the dark.

It's not a guilty pleasure, because I'm with Julia Child on those-- I have no guilt. Nevertheless, I'm a little sheepish about admitting to enjoying a television show, particularly a chick show. If "The Gilmore Girls" weren't so excellent, I'd never fess up to watching it, but it is really that good. It is funny, and engaging, and fast paced and witty-- and now my hero, Norman Mailer, is going to appear on an episode!

A few years back I went to a lecture Mailer gave at the 92nd Street Y, and afterwards I bought a copy of "The Time of Our Time" for him to sign. I told him the story about inviting him to my wedding so he'd write a dedication to A.-- something they'd carefully instructed us not to do. "Heh, heh, heh-- that's pretty good," the Lion of American Letters chuckled, as he wrote the dedication. (Thanks to Bookslut for the heads up.)

We were in Austria to speak at a conference on "Negligence and Damages in an International Setting". In years past we were regular participants in the conferences put on by L'Association Internationale des Jeunes Avocats, at which we were among the very few Americans present. The ratio was reversed at this event, but there was still an interesting mix. One of the things that seemed notable was that the lawyers who seemed to take the position that US personal injury damages awards are disproportionate were a somewhat younger bunch. We have believed for years that the difference that we see between US damages awards and awards in other systems can be accounted for by virtue of the fact that the special damages sustained by injured individuals are substantially diminished (or non-existent) in other developed countries. The neo-liberal welfare state which is the norm in the Euro Zone spreads risk across society; the US model assigns responsibility for risk on the basis of culpability. Our theory has been that Europe's tort system will trend towards the US model as the European economy shifts away from a welfare model as the consolidation of the various national economies occurs. It's been a process that has been slow in developing, at least in part because the EU has been absorbing a number of countries with large populations and comparatively poorer economies, but I'll stand by this prediction. In any event, our position when we discuss US damages awards with lawyers from other systems is that the reason US awards are bigger than the awards made in other systems is that the damages actually sustained in the US are greater than in Europe. A person injured in the US has no social security safety net to pay for the actual loss of prospective earnings, the actual cost of future medical care ad treatment, the actual cost of the lost household services that the injured person would have contributed to her family. It is surprising to me how many people who do this work think the reason for the difference in damages awards between the US and the rest of the world focus on the fact that we ask juries to make this decision and they do not-- it isn't the juries, it is the evidence that the finders of fact are basing their decisions on.

So that was fun to talk about for a weekend.

It's a pretty city, but the sky didn't look like this. It rained pretty much the whole time, and it was colder than I was really ready for. Still, I managed to get a nice six miler in, out along the path that runs along the river, and back along the path on the other side. I'm really always a little uncomfortable in German speaking places: the default assumption, what with my name, and the way I look and all, is that I am German, and people are surprised that I don't speak the language. It is a little like being a white guy in a place full of racists, but nastier. The Austrians are at considerable pains to make sure that you understand that they are not Germans and in fact will privately confide that they regard themselves as "the first victims". This sort of denial is hard to swallow, even from people who are very agreeable and nice in every other way, but knowing that they are in denial makes it all the more chilling when you see a swastika spray painted on a bridge abutment. I mean, you see that sort of thing in the US too, but we have a different history. When I see a Confederate Battle Flag I am offended, and a little angry, and a little sad about the ignorance that is woven into American life. If I were mayor of Salzburg I'd make a point of having a crew on call to clean up graffiti 24/7. 

Cynically, I thought the Dylan line that applied to John Kerry was from "Idiot Wind": "She inherited a million bucks/And when she died, it came to me/I can't help it if I'm lucky". Ron Rosenbaum sees it differently: in discussing Bush's "lost year" he optimistically proposes that perhaps Kerry "has learned the lesson embedded in the words of his generation’s sage, in a song about being trapped in a nightmare: "Stuck Inside of Mobile with the Memphis Blues Again." "Here I sit so patiently, waiting to find out what price/You have to pay to get out of going through all these things twice."

Rosenbaum's argument is that the lost year we should be thinking about is not 1972-- "when Bush may have failed to show up for a physical," but is, rather, the "time between the initial consolidation of control of Afghanistan and the apparent loss of control in Iraq." Right. Exactly. Vietnam is relevant to this argument, but not for the reasons that are being given: it has nothing to do with the relative valor, or manliness or whatever of the two men. It is, instead, about the "nightmare we'’re trying to escape from going through twice. Vietnam is the nightmare I sense the rat in John Kerry just will not allow us to go through twice: He will either win it or pay the price to escape the nightmare of going through it twice."

I'm not sure that I entirely buy into Rosenbaum's argument, because I'm not sure that Vietnam was the war, or just a battle in the larger cultural war that is ongoing-- but it seems pretty clear that Kerry thinks Vietnam was at the center of it, and it also seems clear that we are presently at serious risk of replaying the mistakes of Vietnam with much graver potential consequences.

I like travel, but it is funny how it goes with me-- I very seldom find myself in places where I'd ever thought of going, and since it is mostly all business travel, I tend to parachute in and out pretty quickly. I'll be in Salzburg at a conference for the rest of the week-- or, at least, that part of it that won't be spent traveling. I wish I could do something about the disturbing mental picture I have somehow formed of German speaking kangaroos in Tyrolean hats. Most people think of Julie Andrews, I suppose, but my brain is off on its own weird track.

Here's another jazz/rock contrast: jazz drummers make outstanding band leaders, but there has never been a worthwhile rock band fronted by a drummer. Again, I am not sure why this should be, although it may have to do with the difference between rhythm and beat. It is interesting to think about the number of great jazz bands that have been lead by drummers: every edition of Art Blakey's Jazz Messengers, each distinctive, each terrific (to say nothing of the quintet with Clifford Brown and Horace Silver he recorded with in 1954); Max Roach and Clifford Brown's terrific quintet; Chick Webb; my personal favorite, Arthur Taylor's Taylor's Wailers. I saw T.S. Monk lead a big band performing his father's music a few years back, and was blown away.

A few years back Dick Judelson was featuring some new releases and played some stuff from Charley Watts' then current big band release. I love Watts' playing with the Stones, (although Judelson was pointedly less enthused), and his jazz work is also interesting and swinging. I guess what I'm getting at is that the role of the drummer is another point of divergence in the American Trinity.

It's not because jazz drummers don't take solos-- they sure do. It is more, I think, that what they do with their solo space is more interesting. Somewhere recently I read Nick Hornby saying that he went out for a pint during John Bonham's solo on "Moby Dick"-- what an excellent plan! I've never bothered getting any Cream on CD because I can't see making the investment in Ginger Baker's "Toad".

A First-Timer's Guide to Jazz Jam Sessions. "Vocals: Vocalists are whimsical creations of the all-powerful jazz gods. They are placed in sessions to test musicians’ capacity for suffering. They are not of the jazz world, but enter it surrepticiously. Example: A young woman is playing minor roles in college musical theater. One day, a misguided campus newspaper critic describes her singing as “...jazzy.” Voila! A star is born! Quickly she learns “My Funny Valentine,” “Summertime,” and “Route 66.” Her training complete, she embarks on a campaign of session terrorism." (Via Making Light)

Jazz guitar-- funny how the instrument that is so central to the other two members of the American Music Trinity is so peripheral to jazz. Not to say that there aren't great players in the history of jazz, but Django and Charlie Christians, Wes Montgomery or Bill Frisell are all for specialists, really. As wonderful as, say Emily Remler's music is, nobody is going to tell you that it is anything more than a minor tributary. The number of guitarists working in the jazz idiom who have done anything to expand the scope of the music, or the sound of their axe, is a bare handful. Tal Farlow is like that, too. I'd like more Tal Farlow in my collection, but I'm pretty sure that seven disks worth is more than I really need.

Here's a bit of iconography: Dashing Dan, The Dashing Commuter. I was in Riverhead yesterday waiting to take the train back into the city. On a side track opposite the platform were several old Long Island Railroad cars, including one with this cheerful little image. We used to joke that my father was the model, although I see now that there is not much of a resemblance. I also remember thinking that it was peculiar that the railroad chose to identify itself with harried inconvenience.
 

No matter how big a city you practice in, or how for flung your practice is, our glamour profession is a tribe, and when one of the members of the tribe dies, the drums start beating immediately. In Buffalo we are a tight knit bar, and the word gets out pretty quickly. I'd known Carmine Tarantino was sick, but the news of his death, which went through the community with unusual speed, still surprised me. Although I'd never had a trial with him, he was an unusual fixture in our universe here in Western New York. He died young, and although he made a mark, I wonder how much of a mark he left.

On the plane the next day I read his obit, and was struck by the fact that it omitted the two things that everyone knew about him. Carm was a medical malpractice defense attorney. If he ever did anything else, I never heard about it. Med mal defense is a tough row to hoe. Despite what you hear, most medical malpractice cases that make it to trial have some merit-- they are expensive cases to mount, and the plaintiff's bar screens out the rubbish pretty effectively. By the time a med mal case gets to trial it has passed the scrutiny of the lawyer who took it in, an expert in the field who thinks he can take the stand and testify, and a judge, who has denied summary judgement. If you are a trial lawyer defending a case like that, you have to be pretty confident in your case-- and unbelievably confident in your ability to sell your case. There are no small med mal cases-- because they are so expensive to prosecute, the plaintiffs' bar really only take on the big ones-- and, lets face it, when doctors screw up, the results can be pretty bad. Carmine Tarantino was the kind of defense lawyer who'd charge hell with a bucket of gasoline, and he had a record of success that was unearthly.

I don't know how long "The Streak" was, but for years Carm was involved in just about every heavy med mal case in Western New York-- and he never took an adverse verdict. Sometimes the case would settle, but he no-caused more cases than anyone I have ever heard of. "The Streak" began to take on a life of its own, but it never became larger to him than his client's case. Med mal is outside of what I do, and somehow he was not involved in the big med mal/products case that we started our practice with, but I've read a lot of his transcripts over the years, and I've heard a lot of the stories, and I know from these things that he was one of those trial lawyers who would stop at nothing to get whatever advantage he could. Some of the transcripts I've read make it pretty clear that he was entirely capable of being an unbelievable jerk-- but he was doing it to keep his adversary from exploiting a perceived weakness, or a perceived strength. He was being a jerk because he was a believer. That's a quality in a defense lawyer-- or a plaintiff's lawyer-- that can sometimes lead to crossing lines, but can also be difficult to criticize. He was a believer, but his ego didn't get in the way, and that is, I think, something important to remember about him.

I was struck, reading the obit, that this was a man who was well known in our tribe for his combative style, and his streak, but that these things were really not captured at all. He was an important figure in our community-- if Carmine Tarantino was on the case, it changed the entire calculation-- but this fact, something that was achieved by hard work, every day, over a long career, is not really what comes across in the public notice of his death. Within our tribe there will be stories that are told about Carmine Tarantino, but the ripples that his death creates will not carry far outside our circle.

He was a bird watcher, and his survivors think that this was something as important about him as what he did as a lawyer. Indeed, for them, his ornithological pursuits defined him more, or better than his stature as a kind of a legend in our local trial bar.

Your client was injured in the Seneca Niagara Casino. What do you do? Is there a claims procedure? Can you sue it? Where do you sue it? One of the invisible consequences of Governor Pataki's deal with the Seneca is that the answers to questions like these are harder to find than they should be-- and, I suspect, the process is a good deal less transparent than it should be. For starters, you can have a look at Appendix H of the Nation-State Gaming Compact Between the Seneca Nation of Indians and the State of New York. Do it before a year has run on your client's claim. I am particularly intrigued by the fact that this document is marked "Privileged and Confidential". What the hell is that about? Look, I understand about sovereignty (and can even pronounce it), but the New York State Executive Law provision pertaining to the establishment of casinos (Executive Law Sec. 12) states that the Nation is to provide "assurances that the Nation has an adequate civil recovery system which guarantees fundamental due process to visitors and guests of the facility and related facilities; and (iii) assurances that the Nation will maintain during the term of the compact sufficient liability insurance to assure that visitors and guests will be compensated for their injuries." I don't see how an Appendix to a confidential document accomplishes this, but I guess it's not so very confidential if it's on the internet. It's an interesting document throughout. "Damages" for example mean only medical expenses, lost earnings, "property lost and other economic harms" that are a direct consequence of an injury caused by the fault of the Nation. "'Damages' do not include non-economic injury." That lets pain and suffering out-- and I don't see anything about wrongful death in there, either. There is a $5 million dollar cap. With rules like those-- and control over the forum-- maintiaining adequate liability insurance shouldn't be too expensive.

I was surprised that my post about my experience at Spencer Tunick's instalation at Buffalo's Central Terminal didn't draw more traffic-- I can't even find it on Google. Somebody found it though, so welcome, DazeReader followers. I found this news photo, which I hadn't seen, at Ron's Blog. I'm in there somewhere, off to the left in about the middle of the picture.

Robert Christgau & Ben Reiter have a useful resource list-- an action plan, if you will, detailing what we can each do to defeat Bush. It isn't all about money-- it's about getting people to vote. "If George Bush is to be defeated this year, he'll be defeated on the ground. He'll be defeated because we want it more than they want it. He'll be defeated because we swallow our fantasies of a candidate who doesn't exist and recognize that John Kerry is a manifestly superior positive choice. And he'll be defeated not just because we vote for Kerry, but because we urge cynics and undecideds to vote for him too."

Hepster's Dictionary, (Via Follow Me Here.)

To Nellie McKay Friday, an enjoyable evening. At this point I feel like Ms. McKay and I go way back. She is, of course, as cute as a bug, and it was good to see just what sort of chops she had. Her music has reminded me of Blossom Dearie from the beginning, but I'd have to say that while Blossom gets over by being way, way more hip than just about anyone, Nellie gets over on enthusiasm. This almost describes the difference in their piano technique, too: Blossom obviously has a lot of Bud Powell and Bill Evans in her record collection; Nellie has a lot of Erroll Garner.

Because her lyrics employ some strong language, McKay gets compared to Eminem, which is simply so far off the mark it is worth mentioning solely because the comparison might prevent people who otherwise might enjoy what she does from finding out about her. She is not abashed at being polemical (one song-- one of about a half dozen new numbers that she performed-- is about Theresa Heinz Kerry: "I know she used to vote Republican/But so did Irene Dunn"); she has a persona that is a little like the crazy stalker girl, but she knows it's all an act, and lets us in on it with a wink. I was pleased to note that several of the songs that I thought were among the weaker on a strong album benifited from the simple piano and vocal approach, stripped down from the busier arrangements on the disk.

Worth seeing. And if you haven't picked up the CD yet, you should.

A while back I wrote about setting up an arbitration in a matter in which our adversary tried to slip a ringer by us. It took a while to get the hearing set up after that, and then the neutral sat on the decision for a long time-- it hasn't been that good a golf season this year, but there was enough golfing, I guess, to keep him from getting to it. We got the decision today, and we are doing the little "We win!" dance around the office. After some tough losses this year, a win like this feels pretty good. It's true-- you're never as bad as you think when you're losing, and you're never as good as you think when you're winning.

It's not the size of the award-- although I wouldn't have been surprised with a compromise amount-- it's the fact that we nailed the figure.

Around here all is doom and gloom about the prospects for the Bills' season, but I am not so sure I see it that way. There are a few things that I think may make a difference this year, and the way I see it there are a number of intangibles that go the Bills way. First, let's start with King Kaufman's observation that the default presumption of fans and experts is that this season will shake out the way the last one did. As Kaufman notes, that's not how it goes in the NFL. Really, week to week you never know. Second, Mike Mularky instead of Gregg Williams is a huge step up. There aren't a lot of NFL coaches that are worse at making game situation decisions than Williams proved himself to be, so that's an improvement that not enough people have taken into account. The local media is making much over a running back controversy, but Aaron Schatz makes a case for running back by committee that makes sense to me.

Then look at the rest of the division. They almost declared a municipal holiday in Buffalo when Ricky Williams decided to hang up his cleats, but Miami's big Achilles heel has been having to play crucial games against Buffalo and New England in December. They get those games out of the way in October this year, and that could be an issue-- my hunch is that it is more of an issue for the Pats. The Jets are the Jets. That's all that ever has to be said about them.

When New England swapped Bledsoe to the Bills for a first round choice my thought was that Belichick was essentially betting that he could do better with a future pick than a guy that looked to me like a Hall of Fame QB. Now I'm not so sure that Bledsoe was ever all that, and I can't put my finger on why exactly. Not a lot of QBs move to different teams and get better-- Joe Montana was Joe Montana, but not in a Chiefs uniform. On the other hand, it looks to me like the Bills reckon Bledsoe still has it-- the market in QBs was great for buyers this off-season, and they didn't budge. I have learned to respect the Bills front office as talent evaluators, and I'll go along with the theory that they know more than I do for the time being.

The games outside the division aren't as scary as all that: Jax at home for the opener; on the road against Oakland (whatever happened to Oakland?); away at Baltimore (I'll put that one in the "L" column in my mental chart right now); Rams at home; Seahawks at Seattle (another "L", I think); St. Louis at home; Cleveland, Bengels, 49's and Steelers to finish up. I can get to 10 wins-- the question is whether that's enough. The tricky part is that they won't be able to help themselves by beating division rivals after the road trip to Miami on December 5. They need to come on strong right out of the box, and hang on tight after that.

It can be done, I think. Let's say Bills, Miami, New England, Jets.

iPod oddities. As I load my music collection onto this toy, I'm discovering that there are quite a few, uh, redundancies. Like "A Train". How many versions of "Take the A Train" do I posess? I'm up to a half a dozen right now, which seems to mean that Billy Strahorn's masterpiece is something I hear any time I have the iPod on shuffle. I like "A Train", but that's a lot of "A Train"-- and I have a feeling I own more.

The Yankees want a forfeit against the Devil Rays because the Rays had travel problems due to hurricane Frances. Funny, you didn't see Joe Torre invoking the Mercy Rule last week.

Cheerleaders for Truth. Heh. (Via Bifurcated Rivets.)

Interesting deposition war story from The Uncivil Litigator. When I teach my class on Discovery I always mention that deps are as much about sizing up the witness, and getting into the witnesses head as they are about actually getting information; UCL makes the excellent point that this is also true about the other lawyers in the room. Because my students, all upper classmen, mostly know each other better than I know them, I have always evaluated what they are doing, but forgotten to tell them that they should be doing the same thing. I'll remember this year.

UCL also makes a point about body language that I like. Messing with people's personal space is something that can be effective-- like a hockey game, there are times when a deposition can involve blocking out the space your adversary wants to work in. There are also times when reading body language is like a gambler's "tell"-- I remember one case where plaintiff's counsel spent the exam of his client with his arms crossed and his body turned away from the witness for nearly the whole time we were questioning. It was plain that he found his client loathsome, and that he didn't really buy the story, and we knew walking out what we were going to be able to do with the case.

Finally, I am reminded of a story my friend and team captain tells about a deposition he took once where he repeatedly broadly and openly winked at the adverse witness as he was questioning him, utterly unnerving his less experienced opponent. "Stop that," the guy kept saying. "Stop what?" he'd reply--*wink, wink*.

I love the idea of a sitcom about Bob Knight, don't you? Michael Ventre does: "When I heard that CBS and Paramount Television were developing a show based on the life and times of Bob Knight, I assumed it would be a show like “Dr. Phil,” where Bob sits down with people who have troubles and reads them the riot act until they straighten out. Or a show like “Charlie Rose,” where distinguished guests from various walks of life come on and Bob screams expletives at them until they realize that they’re not even close to realizing their potential.

"Sources tell me that Bob wanted to call his show, “Coach,” and when producers tried to explain to him that there already was a sitcom called “Coach” starring Craig T. Nelson, his face got really red and they all decided to worry about the title later.

"How about this? Through a wacky chain of events, Bob has to share an apartment with a sportswriter. Better yet, it’s the sportswriter who has to cover his Red Raiders team. We can’t get too creative with the sportswriter. He has to be the type that audiences will immediately recognize: handsome, suave, erudite, reasonable. In other words, the perfect foil for Bob."